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Federal Reserved & Tribal Water Rights

Federal law influences water resources in numerous ways, even though water law is primarily state law. In this portion of the course, we will look at several ways in which federal government impacts water use.

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Federal Water Law

State law primarily directs water issues but federal law also impacts this critical natural resource.  The following items identify some of the federal laws that impact water.

  • The Commerce Clause of the U.S. Constitution (Art. I, sec. 8) - authorizes federal action -- "The Congress shall have power to ... regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"
  • Clean water act (33 U.S.C. §1251 et seq) - defines point source and non-point source water pollution (33 U.S.C. §1362(14)), establishes the national pollutant discharge elimination system (33 U.S.C. §1342) and requires nonpoint source management programs (33 U.S.C. §1329).
  • Navigation - navigation servitude
  • Commerce clause - prohibit state action
  • Federal licenses; pre-emption over state
  • State interaction with federal laws
  • Federal projects - reclamation act, federal power act.

This page primarily addresses federal law that impacts the appropriation of water to users.  Note as has been discussed on this web site, federal law grants much of the authority to state governments to allocate or appropriate water to users. However, federal law does retain/reserve authority to appropriate water for particular uses.  This page introduced these federal reserved rights.

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Federal Reservation of Water Rights

State law is often considered the primary legal authority for determining water rights. This page explores situations in which federal law dictates who is entitled to use the water; that is, these cases describe circumstances when the interests of the federal government prevail over appropriations of water that are based on state water law.

Whether or not one agrees with past practices, the U.S. federal government took ownership of property as territories were brought under the control of the federal government.  The federal government then transferred ownership of land to states and private ownership, as well as retaining ownership if considerable acreage.  For example, land ownership was granted to homesteaders, railroads received grants of land to finance the construction of transportation, and states were granted ownership of land for government purposes, such as funding for education.  Tribes also were provided lands for their people; many of these areas were established by the federal government for the tribes before the region was granted statehood. Ownership of minerals also were explicitly addressed, that is, the federal government retained mineral ownership or explicitly transferred ownership to private owners. 

As states were admitted to the Union, statehood included receiving water rights and thus many states have law that indicate the state owns the water.  But the federal government seldom recognized a need to explicitly reserve water. 

With the passage of time, it became clear that the federal government probably did not intend to relinquish all control over water to the states, but that the federal government would retain some water rights to fulfill federal purposes.  An easy example are the tribal lands; designating land on which native people could live without retaining a right to use water would render the land nearly valueless.  Reservation of land therefore implies an appropriate reservation of water.  The reservation of land predates statehood and thus the implicit reservation of water also predates statehood. Restated, water reserved for federal purposes, even though not explicitly quantified, predates any water rights established by state law.

The question though is how much water was reserved and how can that reserved water be used.  Despite the passage of time, these difficult but critical questions remain unanswered.  The law is clear -- water rights were reserved but the extent of those rights is equally unclear.

HINT -- not all water needed for federal purposes are considered "reserved".  Accordingly, water needed for federal purposes that arose after statehood, such as federal irrigation projects, has been acquired by the federal government according to state water law.

The following materials introduce the legal concept of federal reserved water rights.

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Reserved Indian Water Rights

Winters v. United States, U.S. Supreme Ct., 1908 (p. 680 of Weber's 9th ed.)

  • The defendants had settled in an area of Montana and were diverting water for irrigation purposes. As a consequence of the diversions, there was inadequate water to meet the needs of an Indian irrigation project. The defendants had acquired their water rights from Montana prior to the Indian project which was constructed in 1898.
  • The lower court granted an injunction ordering the defendants to not interfere with the water that would be used for the Indian project, even though the defendants' use predated the project.
  • The original reservation was established in 1874; it was reduced in size in 1888, but the smaller tract was not adequate without a change of conditions, such as irrigation. Defendants argue that the 1888 reduction in the reservation also included a (proportional?) reduction in water rights.
  • The government is asserting the rights of the Indians; ambiguities in the agreements and treaties are resolved from the standpoint of the Indians.
  • The power of the federal government to reserve water and exempt them from appropriation under state law is not denied.
  • In 1888, the federal government reserved water rights adequate for the Indians to change the use of their land.

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One consequence of federal reserved rights is that they can be quantified after appropriations based on state law have been established. This introduces a degree of uncertainty into water rights that conflict with potential federal reserved rights.

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Colville Confederated Tribes v. Walton, U.S. Ct. of Appeals, 9th Cir, 1981 (p. 689 of Weber's 9th ed.)

  • Walton, a non-Indian, holds several allotments along a creek; the United States holds the remaining allotments in trust for the Colville Indians.
  • Walton irrigates 104 acres from the creek.
  • Enough water was reserved when the reservation was created to permit irrigation of all practicably irrigable acres (PIA) on the reservation.
  • However, providing for a land-based agrarian society was not the only purpose for creating the reservation. The tribe's access to fishing grounds was another implied purpose for creating the reservation. Therefore, there is an implied reservation of water for the development and maintenance of fishing grounds. And that right includes sufficient water to permit natural spawning.
  • Does Walton have any water rights? The General Allotment Act provided that reservation land could be allotted for the exclusive use of individual Indians and that remaining land could be available for homesteading by non-Indians. After 25-years, the allotment could be transferred to the individual Indian.
  • Congress had the power to allot reserved water rights to individual Indians and to allow transfer of such water rights to non-Indians; but did Congress do that?
  • Indian-allottees have the right to use reserved water; and when allotments are conveyed in fee, some portion of tribal water essential for cultivation passed to the owners.
  • An Indian allottee may sell the right to reserved water; this is different than the district court's ruling that an allottee may convey only the right to water that had actually been appropriated.
  • The non-Indian purchaser can acquire no more rights than the seller had.
  • The non-Indian's priority dates to the creation of the reservation; thus all must decrease their uses proportionally.
  • An Indian allottee does not lose the right to share in the reserved water due to non-use.
  • The non-Indian purchaser may lose the right to the water due to non-use.

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See Montana statutes  (MCA 85-2-701 et seq.)

  • "It is the intent of the legislature that the unified proceedings include all claimants of reserved Indian water rights as necessary and indispensable parties under authority granted the state by 43 U.S.C. 666. However, it is further intended that the state of Montana proceed under the provisions of this part in an effort to conclude compacts for the equitable division and apportionment of waters between the state and its people and the several Indian tribes claiming reserved water rights within the state."

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Federal Reserved Water Rights

Has the federal government reserved water rights for purposes other than for Reservations?

Cappaert v. United States, U.S. Supreme Ct., 1976 (p. 697 of Weber's 9th ed.)

  • Devil's Hole is a deep limestone cavern that was withdrawn in 1952 by presidential proclamation and made part of the Death Valley National Monument.
  • The purpose of the reservation was to preserve the unusual features of scenic, scientific, and educational interests.
  • Cappaerts began pumping water to irrigate their land and it began to drop the water level in Devil's Hole. The decrease in water level jeopardized spawning for the pupfish that is found in Devil's Hole.
  • The government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.
  • The doctrine reserves only the amount of water necessary to fulfill the purpose of the reservation, no more.
  • The pool need only be preserved to the extent necessary to preserve its scientific interest; the level of the pool may be permitted to drop to the extent that the drop does not impair the scientific value sought to be preserved.
  • Reserved water rights pertain to surface and groundwater.

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United States v. New Mexico, U.S. Supreme Ct., 1978 (p. 701 of Weber's 9th ed.)

  • The United States claimed reserved water rights for use in a national forest as may be necessary for the purposes for which the land was withdrawn.
  • The quantity of water reserved is a question of implied intent.
  • Congress reserves only the amount of water necessary to fulfill the purpose of the reservation, and no more.
  • Where water is necessary to fulfill the purpose of the federal reservation, even in face of Congress' deference to state water law, the United States intended to reserve the necessary water.
  • Water that is valuable for a secondary use must be acquired like any other private or public appropriator.
  • Congress' creation of national forests provides no support for the argument that Congress intended to reserve minimum in-stream flows for aesthetic, recreational, or fish-preservation purposes.
  • Forests are to conserve water and furnish timber.
  • Stockwatering is a secondary use of a national forest and must be allocated according to state law.
  • DISSENT: Would reserve enough water to maintain the wildlife and plants found in a forest.

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Colorado River Water Conservation Dist. v. United States, U.S. Supreme Ct., 1976 (p. 711 of Weber's 9th ed.)

  • The United States instituted a suit in federal court for declaration of U.S. reserved water rights.
  • The defendant filed an application in Colorado state court seeking an order directing service of process on the United States to join it for the purpose of adjudicating all U.S. claims. The United States was served pursuant to the McCarran Amendment in which Congress consented to having the United States joined in cases adjudicating and administrating water rights where it appeared the United States is the owner or is in the process of acquiring water rights under state law.
  • Defendants filed a motion in federal district court to have the federal case dismissed; district court granted motion.
  • Court of Appeals reversed.
  • Under 28 USC 1345, district courts shall have jurisdiction over all civil actions brought by the federal government; McCarran Amendment did not diminish the federal district court jurisdiction.
  • McCarran Amendment provided consent for state courts to determine federal reserved rights held on behalf of Indians; so the state court had jurisdiction over the Indian reserved water rights; federal reserved rights were included where the United States was "otherwise" the owner.  The underlying policy of the amendment dictates including Indian reserved rights -- it is an all-inclusive statute.
  • State jurisdiction does not imperil Indian reserved water rights nor breach the special obligation of the federal government to protect Indian rights; the amendment does not abridge any substantive claim of the Indians.
  • The district court's dismissal was appropriate under the doctrine of abstention -- congressional consent (via the amendment), no federal court proceedings in this matter until this suit was filed, the large number of defendants involved in the case (1000), the distance from the federal court to the state court (300 miles), and federal participation in other state proceedings.
  • Federal case was properly dismissed by the federal district court.

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United States v. Anderson, U.S. Ct. of Appeals, 9th Cir, 1984 (p. 721 of Weber's 9th ed.)

  • Can the State of Washington exercise regulatory jurisdiction over non-Indian use of excess water on land owned by non-Indians (fee land) within the reservation?
  • The United States and Spokane Tribe of Indians sought an adjudication of water rights.
  • A tribe may regulate activities of nonmembers who enter consensual relationships with the tribe or its members; and the tribe retains the inherent power to exercise civil authority over the conduct of non-Indians on fee lands within the reservation when the conduct effects the political integrity, economic security or health and welfare of the tribe. But tribal sovereignty is not absolute; the state has the authority to regulate the use of excess water by non-Indians on non-tribal land.
  • No direct preemption of state regulation has occurred; and the balance of interest weighs in favor of the state.
  • Washington is obligated to regulate and conserve water consumption for the benefits of all its citizens, including those who own (fee) land within a reservation.
  • The interest of the state in exercising jurisdiction will not infringe on the tribal right to self-government nor impact the tribe's economic welfare because those rights have been quantified and will be protected by the federal water master.

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Summary

Despite the federal government granting the states responsibility for appropriating water rights, the federal government reserved water for federal purpose.  One of the challenges is determining the quantity of water that the federal government has reserved.

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Disclaimer

Email:  david.saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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