July 20, 2023
The Supreme Court of the United States last month ruled 5-4 against the Navajo Nation, supporting the argument that the treaty at issue does not require the federal government to take the affirmative steps that the Navajo Nation contends.
"The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation,” Judge Brent Kavanaugh wrote for the majority. “But the treaty did not require the United States to take affirmative steps to secure water for the Tribe."
The Family Farm Alliance was part of a Western water user amicus brief filed in support of the federal government and Arizona in this case. In its decision, the Court specifically recognized the concerns raised in the Western Water Users amicus brief and cited that brief.
The Court found that “the zero-sum reality of water in the West underscores that courts must stay in, proper constitutional lane and interpret the law (here, the treaty) according to its text and history, leaving to Congress and the President the responsibility to enact appropriations laws and to otherwise update federal law as they see fit in light of the competing contemporary needs for water."
The Court also embraced the Alliance’s and water users’ argument that water right claims should be made in water right adjudications.
". . .[T]he Navajos may be able to assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests, and courts will then assess the Navajos’ claims and motions as appropriate”, the Court ruled.
The Court’s judgment eliminates another possible layer of uncertainty regarding Western water decision-making. From a practical standpoint, this decision should prevent the possibility of a new method being established for tribes to pursue water outside of the established process of filing and pursuing claims in basin-wide adjudications, involving all affected water users and States. It also demonstrates the importance that amicus briefs can play in these kinds of cases.
Another federal court in Washington - the District of Columbia federal Court of Appeals - recently issued a decision that could also impact how federal water is managed in the West. While the case applied directly to the concerns of East Coast lobstermen, it may have applicability elsewhere to future biological opinion (BiOP) challenges and other Endangered Species Act.
The Maine Lobsterman’s Association won its case against the National Marine Fisheries Service.
“In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions,” the opinion reads. “We hold it may not.”
An attorney I trust called this “a grand decision”, which could be helpful when we see personal agency preference masquerading as “professional judgment.” For example, this may have some application to the delayed mortality issue with listed salmon and the impacts of the federal dams in the Columbia River System Operations litigation.
[Dan Keppen is Executive Director of Family Farm Alliance.]
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