Wednesday, August 9, 2006
Michael C. Blumm, David H. Becker, and Joshua D. Smith (all of Lewis & Clark Law School) have posted The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled on SSRN. Here's the abstract:
Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights "reserved" from state laws. These federal water rights normally have priority over state-granted rights because they usually were created in the 19th century, well before most Western state water allocation systems were even established.
Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called McCarran Amendment, an appropriations rider given expansive interpretation by the Supreme Court in the 1970s and 1980s. Justice Brennan's belief that state courts — comprised largely of elected judges — could treat tribal claims evenhandedly, despite the high stakes and entrenched interests involved in Western water rights adjudications, has never been evaluated.
This study aims to begin to fill that gap by examining the results of six Western water right adjudications — five of which were decided by state courts — involving the Klamath, Wind, Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The results suggest that Justice Brennan's optimism was quite misplaced: in none of the cases studied did a court order restoration of streamflows necessary to fulfill the purpose of the tribe's reservation. Instead, the state courts created a number of new legal principles to limit or diminish tribal water rights, in an apparent effort to reduce the displacement of current water users.
The paper concludes that in the McCarran Amendment Era tribes must resort to extrajudicial means of restoring streamflows necessary to fulfill the purposes of their reservations. It shows how some tribes have employed settlements — and even state law — to achieve partial streamflow restoration, which is all that now seems possible in an era in which their claims are usually judged by skeptical state court judges who face reelections in which entrenched water users exert considerable influence.
[Comments are held for approval, so there will be some delay in posting]