Flavor of the Month – Federal Water Rights

We can add Kathy Cleary’s letter in the SYVJ a couple weeks ago concerning federal water rights for the Chumash to the long line of attempts by members of POLO/POSY to create alarmist propaganda against the Chumash.

Let’s see…..first we had the 5000 more slots which they claimed would be reality in just a few weeks, then we had the charitable contributions which just bought us all off they said. After that it was casino patrons were mostly a bunch of gambling addicts – studys indicated only 1% of gamblers have a problem. Then it was expanding the casino operations to the Royal Scandanavian and Fedricos where the California Gambling Control Commission determined that there had been no violations. Next we had the huge conspiracy where the entire state legislature and the Chumash got together and re-named San Marcos Pass the Chumash Highway for marketing purposes, where in fact there were only a few commemorative signs put in place along the road to honor the thousands of years the Chumash have inhabited this land. Then there was the air conditioner salesman who was hired to do a study which he determined that the Chumash aren’t really Chumash and that the reservation isn’t legitimate. Next we were told that the Chumash had plans steal all of the homes, farms, and ranches right out from under us and that Santa Barbara County is in cahoots with this dastardly plan.

That brings us to the current flavor of the month. The Chumash are going to take our water.

Mrs. Cleary said that her information was based on information provided by POLO/POSY’s legal consultant.

POLO/POSY may not be getting their moneys worth out of this person who specializes in tribal water issues if this is the kind of info they passed on to Mrs. Cleary.

But most likely it is just a classic example of the tactics POLO/POSY members use by taking an issue (non-isssue?) and throwing out a couple key buzzwords having to do with the subject, throw in a bunch of faux facts to create alarm, and then hope to hell the general public won’t call them on it.

I guess Mrs. Cleary forgot about me.

I guess I should thank Mrs. Cleary because I wasn’t really up on water rights, federal or otherwise, until her letter initiated my investigation. I now have a pretty good basic understanding of the issue and what may lie ahead.

She stated that there were basically two types of water rights - simple water rights and federal reserved water rights, and that Federal reserved water rights fell into two categories – Winters and Arizona vs. California.

Water rights are very complicated and far from “simple” and my research revealed no such classification as “simple water rights”.

As I have said before, my lawyer is the Internet and I very much get my moneys worth when I consult it. Can’t complain about the rates either.

In the United States there are essentially two systems for determining water rights -riparian and appropriated. Generally state law decides which, if not both, will be established.

During the 19th century, California used both appropriated and riparian systems of water rights where riparian means that if you live along natural water you have rights to the water, and appropriated means that the first person to use the water has the right to it but must use the water for beneficial use and dates back to the gold rush days where miners would stake claims for mining.

That is a very basic description of the two, and there is much more to it if you care to investigate.

Then there is Federal reserved water rights which are rights that are established when the federal government reserves land for a specific federal purpose such as national wildlife refuges, Indian reservations, and military bases.

Mrs. Cleary mistakenly claimed that there were two categories of Federal water rights - Winters and Arizona vs. California.

I am assuming she is referring to Federal Indian water rights as both Winters vs United States and Arizona vs. California were based on court cases involving Indian tribes and her concern and reason for writing her letter has to do with the Chumash and water rights.

The fact is that there are three kinds of Federal Indian water rights and Arizona vs. California isn’t one of them. The three are: Aboriginal, Pueblo, and Winters rights.

Federal water rights for lands that tribes have occupied forever are known as aboriginal water rights.

A Pueblo water right is the right of an American city, as the successor to a Mexican or Spanish pueblo, to the use of water naturally occurring within the old pueblo limits for the use of the people of the city. Los Angeles and San Diego have pueblo water rights.

That leaves Winters. The 1908 case of Winters vs United States involved a dispute between the Ft. Belknap Reservation and nonnative settlers over the use of the Milk River in Montana. When the water use of the settlers upstream from the reservation interfered with the Indians' need for large irrigation diversions, the U.S. government filed a lawsuit on the reservation's behalf.

Winters established that Indian reserved water rights trumped state appropriative rights because the Indians were there first. In addition, Winters determined that water may be reserved for both present and future requirements of the tribe, water was to be reserved to irrigate all the acreage used for agriculture, and that water rights accompanied tribal land holding.

Winters determined that the Indians had the right to the water, but the decision failed to come up with a standard for deciding how much water the tribes were entitled to.

In 1963 the U.S. Supreme Court Arizona v. California decision reaffirmed Winters and, in assuming that the water would be used for agriculture, established a quantification standard based not on the size of the reservation population but on the “practicably irrigable acreage”(PIA) on the reservation.

Mrs. Cleary stated that in Arizona v. California “the Supreme Court ruled that the Secretary of the Interior acts as the water master of the river and has a direct fiduciary responsibility to protect tribal interests to water”

Not even close. The Secretary of Interior had been designated the lower basin "water master" back in 1928 under the Boulder Canyon Project Act…. 35 years before Arizona v. California. But that doesn’t make him/her water master of all the water in California. The Boulder Canyon Project Act, which authorized the construction of Hoover Dam, and because it encompassed Arizona, California and Nevada and involved 5 Indian tribes, was the reason why the Secretary of Interior was designated the lower basin water master back in 1928.

There are a wide variety of water masters in our state. They range from municipal water districts to U.S. District Court appointee’s to individual consultants to a hydrologist appointed by the Superior Court. For example, the Goleta Water District is the water master for the Goleta Basin.

As for Arizona v. California decreeing that the Secretary has the responsibility of protecting tribal water rights, that isn’t true either.

I read the decision and basically it said that the 1908 Winters v United States case had already concluded that the US Government, when it created Indian Reservations, never would have established them without intending to provide enough water for the people who lived there to survive on.

Justice Black, who wrote the Arizona v. California decision, said “We follow it (Winters) now and agree that the United States did reserve the water rights for the Indians effective as of the time the Indian Reservations were created.”

The US Government has been protecting, or was supposed to have been protecting, tribal interests to water for 100 years.

In addition to the above, Arizona v. California also expanded on the idea that Congress inherently intended to reserve rights to enough water to fulfill the purpose of any federal land it created which included the military bases, National Parks and such.

As far as how the State and Federal Government interact when it comes to water rights, historically, the states had no say in determining the water rights of tribes due to the sovereign status of the tribes and the federal government. This made it very hard for the state to prioritize and decide on quantities for water rights in areas where federal reserved rights existed.

In 1952 Congress passed the McCarran Amendment that allowed the federal government, which holds legal title to reserved water rights as trustee for the tribes, to be brought into state adjudications thereby waiving its sovereign immunity. The federal government consented to be sued.

Adjudications are court determinations of water rights volumes and priorities.

Later, the Supreme Court ruled that the McCarran Amendment also applied to state adjudications of Indian reserved water rights, which are held in trust by the United States.

As for the Chumash looking into federal water rights? They actually have had those rights for 100 years (Winters v US) but have not exercised them.

Arizona v. California confirmed that the reserved right is created at the time that the reservation is created, even if the tribe does not initially use the water — the right is created at the time of creation of the reservation, not at the time of water use.

States and tribes must negotiate how much the tribes have coming before the federal rights are exercised. Congress has ratified 21 Indian water rights deals in the past 25 years.

Today, the trend is to negotiate and settle instead of litigate due to the heavy cost and the lengthy process of court proceedings.

This past July, for example, the Senate passed and the President signed the Soboba Band of Luiseño Indians Settlement Act which ended 75 years of litigation by the Soboba Band and created new sources of water for Riverside County residents. 75 years. Unbelievable…. can you imagine the total cost of that?

No one can say for certain what the Chumash will eventually do, including even going down this road at all, but looking at the history of cases and trends involving tribes obtaining reserve water rights, one would most certainly expect them to take the negotiation route versus litigation if they do decide to exercise their reserve rights.

My research led me to this paper by the Judith Kammins Albietz and Rebecca Berman Phelps Albietz Law Corporation of Sacramento, California which contained a section titled “Indian Water Rights Settlements” which provides a great perspective on what the Chumash and our community might expect should the Chumash choose this course.

http://ns105.webmasters.com/*albietz.com/httpdocs/indh2o.pdf

Although the litigation process is known to be a long costly affair, the negotiation and settlement process has its own arduous aspects which will include all parties participating in the negotiations.. including you and me... and would take years.

And negotiation and settlement is only the half of it.

Once everything is signed off on paper, there lies the daunting task of turning it into reality where coming up with the money to pay for it all will be the issue.

Once the tribe, state, federal government and local agencies all agree to a settlement the next step is to have the legislation ratify the deal then come up with a way to pay for it.

Currently there is a lack of funding for the settlements already concluded.

Back in April of this year Sens. Pete Domenici and Jeff Bingaman brought a proposal forward to dedicate an existing reclamation fund as a permanent funding source for Indian water settlements. Senate bill 1711. It will have to meet with the approval of the full Congress, which would have to appropriate monies from the Interior fund.

John Echohawk, executive director of the Native American Rights Fund and a veteran of water rights issues, has said that over the course of almost four decades, NARF has encountered a consistent challenge - federal inability to fund the resolution of tribal water rights claims.

So… it looks like the Chumash would have a long road and, in the long run, the whole thing may prove not be worth the time, money and trouble to the Chumash, but I guess time will tell.

Perhaps more of a real concern today for Americans when talking about water is the fact that it is quickly becoming a privately owned commodity. 15% of the U.S. business water supply is now privately owned... a figure that has more than tripled in the last decade and that a lot of that ownership is by multinational companies.

Sources:
http://www.usatoday.com/news/nation/2008-02-25-water-rights_N.htm
http://www.klamathbucketbrigade.org/Pace_NativeAmericanwaterrightsontheline022608.htm
http://en.wikipedia.org/wiki/California_Department_of_Water_Resources
http://lib.berkeley.edu/WRCA/pdfs/news131.pdf
http://law.jrank.org/pages/13674/Winters-v-United-States.html
http://ag.arizona.edu/AZWATER/publications/townhall/Chapter8.pdf
http://www.fws.gov/mountain-prairie/wtr/water_rights_activities.htm
http://www.mydesert.com/apps/pbcs.dll/article?AID=/20080726/BUSINESS/807260312
http://www.indiancountry.com/content.cfm?id=1096417167