Water Regulation Archive - Attorney Blog | Natural Resources, Commercial Law

Archive for the ‘Water Regulation’ Category

‘Ghost claims’ of dead pioneers haunt South Dakota water rights

Posted on: September 26th, 2016
by David Ganje

Author Seth Tupper Journal staff

It’s a safe bet that neither John P. Plunkett nor Edward Lynch will show up to defend their water rights when a state board considers terminating them later this year.

That’s because Plunkett and Lynch are dead — and have been for a long time.

Yet their joint rights to divert water from Rapid Creek live on, because they obtained the rights in 1896, more than a decade before the government of South Dakota began regulating the use of water.

The grandfathered status of the old Plunkett-Lynch water rights means they are still technically in force, as are 437 other sets of water rights filed prior to the adoption of state water-use laws in 1907. Many of the rights are for large amounts of water, and some are attached to famous names like Seth Bullock, the legendary lawman of the Deadwood gold-rush era who still technically owns a water right on the Redwater River in Butte County.

One modern expert refers to the pre-regulatory water rights as “ghost claims,” and their potential to haunt modern water management is highlighted by the Plunkett-Lynch case. The case could soon be the subject of an adversarial hearing involving state regulators who want to cancel the water rights and a local rancher, Richard Rausch, who wants to keep the rights attached to the land he leases…..

To read the entire article, visit the Rapid City Journal here.

Also available via FarmForum.net

Tribal Water Rights – The Road to Securing Water

Posted on: September 8th, 2016
by David Ganje

Tribal Water Rights – The Road to Securing Water
By David L Ganje

“Water is perhaps the most valuable tribal resource remaining and is one of the most significant potential forces of change. The potential size of tribal water rights should not be underestimated.” – Western Water Policy Review Advisory Commission

A Canadian Judge – in making a legal decision — recently recited two important principals of British law, both of which are found in US law. The Judge stated there are two legal maxims, one at common law and the other at the law of equity: First, the law comes to the aid of those who are vigilant, not those who sleep on their rights. Second the legal principle of equity comes to the aid of those who are vigilant, not those who sleep on their rights. Upper Great Plains tribes today must be vigilant in obtaining reserved but yet undetermined water rights. This involves two choices. Litigation or negotiation. In this article I argue that the Upper Great Plains tribes should undertake first, active, public and aggressive negotiation, and then if unsuccessful, litigation to recover water rights. But for the current water rights negotiation by the Standing Rock Sioux tribe, reserve language found in the successful Mni Wiconi Rural Water Supply Project and language found in some tribal water codes, Upper Great Plains tribes have not taken an official position with the BIA claiming reserved water rights. This silence is a mistake. My argument is this: treaties and case law have given Upper Great Plains tribes a property right, which is a right to use and access groundwater and surface water. However Upper Great Plains tribes have not fully sought and claimed that right. Both groundwater and surface water reserved rights must be championed by Upper Great Plains tribes.

While Standing Rock has taken the first step in opening negotiations with the State of South Dakota and North Dakota on the matter of water rights, the US Department of Interior has yet failed to assign a representative from its Indian water rights division to participate in these negotiations. Standing Rock is taking the right action; it is putting on the table the reservation’s water claims and doing it in a serious forum. Standing Rock has not by these negotiations abrogated its claims, and will preserve the tribe’s water rights throughout the negotiations without prejudice to its right to refuse any proposed terms or accept any proposed settlement terms. Having recognized this strategically proper first step by the tribe it is important to disclose the failure of the Department of Interior to participate in the negotiations. The DOI’s failure to participate in the ongoing talks is wrong and contradicts that department’s statutory duties regarding Indian tribes in the US. Interior Secretary Sally Jewell, who has publicly stated the administration’s commitment to resolving water rights, should immediately direct a staff person to actively participate in these water talks.

Some tribes have not yet adopted tribal water codes – legal guides for the tribal community for the management and use of water. Tribes should consider the creation of an official water code as a relevant step to securing water rights. Some tribes may have to amend the tribal constitution in order to properly pass a tribal water code. But it is worth the effort.

Tribal rights to water is a treaty right. It cannot be lost through non-assertion. Indian reserved water rights may be asserted at any time, cannot be lost by nonuse, and are assigned priority dates based on the date for the establishment of reservation. In legal theory the loss of water rights would require abrogation by a tribe or the federal government before the rights could be extinguished. Such an abrogation is in reality irrelevant because this has not and will not happen. Abrogation is not therefore the issue at hand.

It is a mistake to assume that any non-Indian interest group or government agency will make efforts to preserve, advocate for or even address these reserved yet undetermined tribal water rights. The US Army Corps of Engineers (Corps), for example, recognized in congressional testimony in 2004 that the tribes have claims to reserve water rights. Having taken that position, the Corps nevertheless in 2012 proposed a new program to produce revenue for the US government by selling what it called “surplus water” from Missouri River reservoirs. In proposing this new program for the sale of so-called surplus water the Corps created a 204-page report to support its argument for the proposed project. The Corp’s report provided statistics, projections and data but ignored and failed to discuss the existing water rights of tribes. Indian tribes are not subject to the Corps’ general authority to create or impose surplus water regulations.

It has not proven so historically, and it is not to be expected that non-tribal government agencies, whether trust-based or regulatory, have any strong reason to advance tribal water rights. No politician or bureaucrat will seriously address tribal water rights as long as the institution he represents have unchallenged bureaucratic control over water management. The only change preferred by a bureaucracy-in-charge is a change resulting in an expansion of the bureaucracy’s own power. That has been the case, for example, with the slow accretion of non-Indian interests and water demands placed on existing water in the Missouri River. As time goes on there will be less and less water to claim.

The Corp’s recent surplus money project is an example of an agency asserting itself over available water. It matters not whether the available water is called surplus water, water behind a damn, groundwater, or instream flows. A claim was made to the water. The claim did not exist before the Corps did the study and asserted the claim. Had the Corp’s project been successful, that water would have been that much more water taken away and earmarked for management and control by a bureaucracy.
Litigation of reserved water rights is one of the two alternative means to secure water rights discussed in this article. Water rights litigation is a complex, time consuming legal playing field. Much can be achieved, but the time, well known litigation risks and money involved must be kept in mind.

The Crow Creek Reservation recently started water rights litigation in the United States Court of Federal Claims asking for both money damages as well as a request for a ruling quantifying the tribe’s reserved surface water rights to the Missouri River. The Crow Creek complaint calls for money damages, as mentioned, and for a judgment that the tribe is ‘entitled to declaratory and injunctive relief including judgment requiring Defendant (the United States) to establish and measure the reserved water rights held by the tribe, and to quantify the reserved water rights held by the tribe, and to assert water rights on behalf of the tribe and to record legal title to water held in trust for the benefit of the tribe.’

The complaint lists the type of relief that should be requested in reserved water rights litigation. The complaint filed by Crow Creek, however, has problems:

The court in which the complaint was filed does not have full jurisdiction to award the complete relief requested in the complaint. By the reorganization statutes of the Court of Federal Claims is has authority to render declaratory judgments only in matters regarding contract or procurement disputes.
The court is unlikely to get into its main jurisdictional issue: money damages in favor of the tribe. It is unlikely to do this because there is no existing water rights determination or quantification by statute, final decree, or water agreement from which the court could calculate a money damages amount. And, further, the important matter of Indian water rights under the Winter’s doctrine is beyond the general expertise of the Court of Claims.
One of the important requests in the complaint is for injunctive relief. This is also beyond the jurisdiction of the Court of Claims. Bowen v. Massachusetts, 487 U.S. 879, 905 (1988) (“[W]e have stated categorically that ‘the Court of Claims has no power to grant equitable relief.’’
The relevant requests in the Crow Creek complaint are requests for an injunction, for a declaration of rights, for the establishment of water rights and for quantification of water rights. The Court of Claims however has only incidental or collateral jurisdiction over these requests making it unlikely that the court would take on such important, significant and historical remedies.
The complaint does not include a necessary party if it is attempting to finalize tribal surface water rights. The state of South Dakota also has water rights to the river. The state is not named in the lawsuit. The Court of Claims cannot impose duties or obligations regarding water rights or the allocation of the tribe’s claim when a relevant party is not included in the suit.
Any adjudication against or settlement with the United States under the pending complaint would be incomplete as stated in the complaint. Groundwater is an integral part of all Indian reserved water claims. The majority of courts in the United States addressing Indian reserved water rights have acknowledged that Indian reserved water rights also apply to groundwater. The reserved water claims of the Crow Creek reservation, one must assume, also include groundwater. However, the Crow Creek complaint for damages for loss of water resources makes no claim for reserved tribal groundwater rights.

Tribes in the US have found success through water rights negotiations with State and Federal bodies. With an appreciation for the uncertainty of litigation, negotiating is the best first step. Negotiations should be pursued in the following fashion. The master water rights Settlement Agreement should include: an agreement setting forth rights to use and administer waters; and an agreement quantifying reserved water rights for historic and current as well as planned uses; and if there is a specific project planned by a tribe, then that project is to be negotiated and drafted as a separate agreement but integrated as a part of the master Settlement Agreement. Any Settlement Agreement would become effective if the Congress passes a Settlement Act and the President signs the act into law. Once the Settlement Act becomes law, the Secretary of the Interior must execute the Settlement Agreement and the Settlement Contract.

An advantage of multiple party negotiations: actual representatives are present sitting across the table. These face to face negotiations bring out the real differences between the parties without hiding behind silence, animosity or evasive politics. If the negotiated terms do not satisfy the rights of tribes, they are not bound to accept the terms. The final outcome of the negotiations is to be decided by the tribe.

The Snake River Water Settlement Act is a recent example of successful Indian water right’s negotiations. Although the US Senate is not an owíčhota of wisdom and justice, the Senate report discussing the Snake River Water Settlement Act addresses the issue of litigation of water rights versus negotiated water agreements:

“The shortcomings of the general stream adjudication process [this is a fancy phrase for litigation] as a device for water rights dispute resolution have led to an increasing number of agreed-to water rights settlements on streams in the western States where the parties, including Indian tribes, negotiate and compromise among themselves as to quantity, priority dates and other issues, and where the Federal government contributes money to the settlement in order to achieve various goals that could not otherwise be achieved within the confines of a general stream adjudication.”
Sen. Rep. 108-389, at 2-3

The Snake River water agreements provided, among other terms, designated water for a variety of tribal uses on the reservation; recognition of allotment water rights and a due process requirement for tribal regulation of such rights; a right to access and use of springs and fountains on federal lands in off-reservation areas; and instream flow minimums at over two hundred locations. When protecting a people’s rights, it is good to hesitate and think. However, it is not good to hesitate and think and then not act.

Water rights granted to tribes are the most important example in American law of treaty-based reserved rights. Tribes do not however dwell alone in the world of water rights. Tribes should abandon silence on the subject, stick their elbows in the table now and publicly assert their water rights. A tribe cannot secure what it does not itself assert.

Civil Water Wars On The Prairie

Posted on: August 19th, 2016
by David Ganje

A couple of years ago I was invited to speak at the annual Eastern South Dakota Water Conference. I told the audience that when one reviews natural resources oil is fashionable and gold is sexy but the essential natural resource is water.

This article discusses a very recent South Dakota case involving water rights and injunctions. Water disputes can be resolved by the legal remedy of injunction. South Dakota law allows courts to grant a standing and continuous injunction, permanently ordering a party to stop an activity. An injunction is usually used where money won’t do the trick. The harmed or affected party in a water dispute is usually the property owner filing the lawsuit. It is his/her decision to request a particular legal remedy which then sets the legal stage. A claim in water disputes is often in trespass or in nuisance. The requested remedy may be for money damages or for an injunction. Some parties seek both an injunction and money damages – that’s what the party did in the new South Dakota case discussed in this article. It should be stated that an ‘injunction’ is a legal remedy. It is not the legal basis for a claim. The South Dakota Supreme Court politely calls these water dispute incidents drainage events.

The law has requirements in order to obtain a permanent injunction. Certain tests apply. Money must not be sufficient as a remedy, or it must be too difficult to determine how much money would be proper. The case under discussion held that permanent injunctions may only be given if one or more of certain specified conditions exist. If it is possible that a harmed party could calculate relief by the payment of money or that the party could prevent future judicial proceedings without the use of an injunction, a permanent injunction cannot be granted.

The South Dakota case arises out of a dispute between two neighbors over surface water flow. Mr. Magner alleged that the Brinkmans were altering their land in such a way that caused water to flow and pool onto Magner’s land. Magner brought suit, requesting money to repair the damages caused by the water flow as well as an injunction forcing the Brinkmans to reverse changes made that led to the water pooling. In the first part of the trial, the jury awarded Magner money to cover damages that already happened. During the lawsuit, Magner revised his claim to request an injunction ordering the Brinkmans to pay for preventative landscaping on Magner’s land. This landscaping was intended to prevent future damages. After considering this new request, the trial court granted Magner’s late request for an injunction, ordering the Brinkmans to pay money to cover the costs of a landscaping plan.

The Brinkmans appealed this decision, arguing that the lower court erred in granting Magner’s revised injunction. The Supreme Court reversed the trial court. The Court reasoned that the injunction was not statutorily authorized – therefore it could not be granted. Magner said that he could use a specific amount of money to prevent future damages. The Court found this to be a case where money relief would be sufficient both to prevent future lawsuits and to make Magner whole. In addition the amount of money was easily determined in the case – the harmed party had proposed a specific dollar amount. The fact that Magner could request an amount of money that would solve the problem and prevent future injury defeated the request for an injunction. The Court said that the Plaintiff’s money damage request as a part of its future damages claim shows that harm to the property could be “easily measured in (money) damages.” In other words, if the harmed party shows his loss in terms of dollars, he is stuck with ‘dollars’ as his remedy.

The American court system, reflecting society, has a predilection for using money damages as a preferred remedy for resolving legal disputes. The preference for requesting money damages is a mistake when a party is considering his legal options in efforts to protect the integrity and value of property while that property sits in harm’s way. How can one translate into ‘money damages’ a future harm to one’s real estate that is imminent and immediate but that has not yet occurred? Further, how can one accurately predict a ‘dollar equivalent’ to property damaged by water flow? The takeaway: if you are the harmed party in a water dispute, think carefully of the remedy you request. Money is fleeting.

David Ganje practices law in the area of natural resources, environmental and commercial law.

Landfill liability re: Contamination

Posted on: July 3rd, 2016
by David Ganje

The operation of a municipal landfill, also known as a solid waste facility, involves significant legal risks, such as damage caused from a landfill leaking or contamination of groundwater.

Modern landfills are created with liners and other collection systems designed to prevent contamination of the ground, groundwater and the air. Despite this protection, in 2003 the U.S. Geological Survey (citing the EPA) opined that “all landfills eventually will leak into the environment.” Many landfills in South Dakota are not insured for pollution losses that may occur while the landfill is operating. Rapid City carries landfill pollution insurance. By way of example, Belle Fourche, Sioux Falls, Brookings and Brown County do not have landfill pollution insurance. The state is currently monitoring a situation at the Brown County landfill related to a ground water underdrain collection system.

A state system of financial planning is in place for current operating contingencies, as well as closure and post-closure costs of landfills. Municipalities by rule are required to show their financial ability to take any corrective action. North Dakota has similar rules. These are the so-called unexpected contingencies, such as a leak into an aquifer.

South Dakota’s rules allow a municipality to keep a separate fund (money deposited in a bank account) to protect against the costs of a leaking landfill, or alternatively for coverage of such a leak by purchasing pollution insurance. To maintain a separate fund large enough to cover a landfill leak is beyond the financial capability of municipalities. Brown County, the third largest county in the state, maintains this separate fund in the amount of $240,000. That is not enough money to cover a possible leak. Brown County is one of the municipalities that does not carry landfill pollution insurance. To put this in financial perspective, the cost to clean up a leaking 150-acre landfill next to a drinking water supply in Burnsville, Minn., was recently estimated by the state at $64 million. These clean up events are the type addressed by landfill pollution insurance – yet few municipalities seem inclined to carry the insurance. This is akin to riding a motorcycle without a helmet. Landfills in the state are, in most cases, owned and run by cities and counties. These municipalities hold title to their landfills. Understand that municipal landfills are dutiful in complying with state and federal environmental regulations. State regulators and municipalities are following relevant statutes and rules. That is not the issue. The challenge is the risk of pollution liability, also called environmental liability – no small matter in today’s world, with costs that can reach into the millions.

The state is required by law to maintain a program of technical and financial assistance to encourage solid waste management. But the legislature has in reality foisted legal responsibly onto municipalities, and in doing so has eliminated any possible governmental immunity for local municipalities. The statutory language of this ‘dodge’ is extraordinary and absolute: “The owner or operator of a solid waste disposal facility … is responsible in perpetuity for the solid waste and liable in perpetuity for any pollution or other detrimental effect caused by the solid waste.” The state permit application for a party operating a landfill also requires the applicant acknowledge that the applicant (usually a city or county) is “liable in perpetuity.” Legal responsibility in perpetuity leaves no room for doubt. For a municipality it’s forever.

Despite the clarity of the law, and the significant costs that could come from an environmental cleanup, many municipalities remain unprotected against the kind of damages that could result from a leaking landfill.

David Ganje practices law in the area of natural resources, environmental and commercial law in South Dakota and North Dakota. His website is Lexenergy.net

Original Article at Argus Leader – My Voice

Leaky Laws – Oil Spill Liability in New York

Posted on: May 26th, 2016
by David Ganje

Pipelines, even privately owned, are a publically regulated transportation and operating system. The question is not whether pipelines are “essential to our society.” Pipelines are already integral to the country: the US had over 1,700,000 miles of oil and gas pipelines in 2014. Operating systems will malfunction. The process for legally authorizing operating systems should not. To paraphrase Norman Vincent Peale, the problem with most publically regulated systems is that they would rather be ruined by praise than saved by criticism.

On September 2, 1978 the U.S. Coast Guard discovered evidence of an oil spill entering Newton Creek in Brooklyn. After launching an investigation, the government found over 17 million gallons of petroleum products that had leaked over a period of decades beneath the Greenpoint area, contaminating more than 50 acres of land. Today, new studies put the spill volume up to 30 million gallons. Cleanup began in 1979, but by 2006 only 9 million gallons had been cleaned up – less than a third of the known spill size. Cleanup continues today, with the aid of the federal government. The spill was designated a Superfund site. No one knows how long the leak existed before it was discovered
The relevant question should be how regulated pipeline leaks will be cleaned up, and who will pay for them. Under both Federal and state laws, the party responsible for a leak is the one responsible for cleanup. Usually the operator responsible prefers to take care of the cleanup themselves. Not only does this help soothe public relations problems resulting from a leak, but it helps the operator control the costs. However, a pipeline operator causing a spill may not always be willing or able to clean up a spill. The liable operator could be bankrupt, dissolved, or simply not have the money. The operator responsible for the Greenpoint spill was still in business and capable of footing the bill for their mistakes. This will not always be the case. Not all spills are flashy and obvious. Cleanup should not wait for years of court cases or bureaucratic lethargy. The money for a cleanup must be there, ready to be used.

New York has the NY Environmental Protection and Spill Compensation Fund (“Spill Fund”), established in 1977 to protect the state against petroleum spills. The fund is financed with a tax on petroleum products moving through the state, and any disbursements from the fund to pay for spill remediation is ideally recovered through penalties assigned to the responsible party. Third parties who are damaged by the spill can also file a claim with the Spill Fund and get their damages paid through the Fund, allowing the Fund to add those damages to the remediation it seeks from the responsible party.

This kind of fund is a good start. However, the fund is simply not large enough to handle the kind of oil spills that are possible in this era of pipelines and oil trains. For the 2014-2015 fiscal year, the Spill Fund spent over five million dollars more than it collected, bringing the fund’s total down to twenty-two million dollars. The fund spent thirty-two million that year. The 2015 state budget raised the cap on the Spill Fund from $25 million to $40 million. But even $40 million is not enough to handle the large spills when a company is not around to pay – in fact, $40 million is not even what the fund would be at if the cap had kept pace with inflation.

This is not to say that New York would be alone in a crisis. Both the Coast Guard and the EPA have trust funds in place to help states and the federal government. The Coast Guard’s fund only applies to spills into navigable waters, and cannot apply to cleaning up spills on land. But it would be there to help if the real disaster happened: a lengthy, voluminous spill into one of the many bodies of water in New York State, like the 2013 Enbridge spill in Michigan that cost more than a billion dollars to clean up. EPA maintains their Leaking Underground Storage Tank Fund for spills on land, but that fund is financed with a tax on motor fuel – a tax paid by private citizens, not the companies causing the damages in the first place.

Petroleum spills are not going away. The New York State Spill Hotline receives approximately 16,000 reports of spills each year, and the NY Dept. of Environmental Conservation estimates that approximately 90% of those reports involve petroleum products. Financial assurances for spills must be required before the damage happens, in amounts sufficient to cover the thousands of spills that happen every year. The legislature needs to create a modern statute addressing financial assurances by the operators for pipeline leaks.