Tribes cast eye to water laws and protecting resource

Peter Harriman, pharrima@argusleader.com 11:09 p.m. CDT July 25, 2014

At the Indian Water Rights Conference this week in Rapid City, lawyer David Ganje gave a overview of water laws as they relate to tribes and offered recommendations on writing and maintaining successful tribal water codes. The conference, hosted by the Great Plains Water Alliance, included tribes from South Dakota, North Dakota, Minnesota, Montana and Alaska.

Ganje, who specializes in natural resources law, recently answered five questions on the subject for the Argus Leader.

1. Federal law already assigns primary water rights to tribes for the exterior boundaries of reservations. Why do tribes need water codes?

“Water codes are really property management vehicles for managing both a right and a commodity. Tribes, as all government bodies now, are more and more aware of the proper management of water. Historically, all of them had been inattentive to water. There had more or less been enough of it around, both surface and groundwater. Now there is a realization that surface and groundwater interact with each other, and climate is affecting all of them. This goes for states and reservations.”

2. What is the relationship between state government and tribes in the Dakotas regarding water?

“Different states over time have approached reservations and undertaken water compacts. There are about 14 different water compacts in the region. In Idaho, Utah and Colorado, some tribes have completed successful water compacts, effective agreements between reservations and the state. There are no compacts in South Dakota and North Dakota. It is always possible. It is a matter of how willing each side is to negotiate, put everything on the table and address it.”

3. As they deal with the issue of managing water, are states and tribes also further developing the concept of tribal sovereignty?

“Water is a major issue in terms of what is tribal sovereignty. While there is precedent for strong water rights in favor of tribes, the question is how does that coexist with an immediate neighbor’s rights, and how does it exist on checker-boarded reservations? Those are questions where water is developing the idea of sovereignty.”

4. Is the historical assumption in the Dakotas that there will always be enough water undergoing review?

“Yes, the scientists are telling us the ebb and flow of water is still unpredictable, notwithstanding the management of flood control dams. They are not the panacea not the bottom line. Nor are they a guarantee that there can be a proper allocation of those resources. The question of who owns the water, who owns the flow is not yet resolved. Science has taught us to be careful, to be more prudent about this.”

5. Because it is out of sight, is groundwater also out of mind with regard to water quality, even in the face of potential development in South Dakota such as uranium mining, fracking to increase oil and gas production and the Keystone XL pipeline that could possibly threaten it?

“Groundwater quality is an emerging issue. The uranium leach mining currently under consideration has risks involved. There is a school of scientific thought that the dispersal of water is as problematic as the water itself used in natural gas production. There is some evidence that water has a tendency to leach itself into groundwater.”

To Trust Or Not To Trust

Placing mineral interests and mineral royalty rights or interests in a “mineral trust” is an economic and efficient way for a current or future transfer of mineral rights to family members or beneficiaries in order to independently own and manage such rights.  Mineral trusts are sometimes called a ‘Family Mineral Trust’ but can be used for more than conveyances to family members. When one creates a mineral trust one is creating it to convey to the trust all or a portion of one’s ownership in mineral rights.  A mineral trust has a number of advantages over a traditional last will and testament.  Assets held in a mineral trust are not included in an individual’s taxable estate.  These trust assets are in effect owned and managed independent of any other property of the granting owners.  The value of mineral interests, due to production increases or the changing market value of the minerals, may also increase dramatically.  If a mineral trust is to be considered, it is important that these assets are included in a mineral trust as early as possible. This is done ideally prior to an increase in value in any royalties to avoid estate taxes.  Mineral trusts may also take advantage of gift tax rules by gifting early in the ownership or value of the mineral interest and thereby shifting income and value to the trust rather than the original grantor.

A trustee is the “manager” of the trust property.  The trustee is given his marching orders by the written terms of the trust instrument. It is said, ‘The trust controls the trustee.’   A designated trustee in a mineral trust handles all decision making concerning multiple mineral interests or multiple beneficiaries as a single operating unit.  This can make for more efficient decision making and collection of royalty rights.

Fractionalized mineral interests (smaller multiple interests) can often be lost in the shuffle and sometimes forgotten by later generations of beneficiaries.   When a mineral trust is created, the earnings from royalties, leases and other income based payments, are held in perpetuity if an heir is lost, until that heir is located.  Unlike abandoned property, with privately created mineral trusts beneficiaries are able to collect on past proceeds when they claim ownership.

Mineral trusts keep the beneficiaries invested in the asset(s).  Without a mineral trust, ownership sometimes becomes unmanageably fractionalized.  In a large family situation, or when the ownership transfers to third and fourth generation, an individual ownership percentage may be small. The cost of managing minerals can also increase when each individual must be consulted or when multiple small beneficiaries are receiving separate royalties based on their individual ownership.  However when a trustee is managing the unit as a whole, the cost of managing is less expensive and the individuals usually have a better ability to monitor the trust asset.

Reconstructing and consolidating several divided mineral interests is an onerous process.  This may be avoided by creating a mineral trust early on.  It is also intended beneficiaries by proper drafting of the ownership terms in a mineral trust.  Creating sound asset management to eliminate disagreement or confusion among owners and beneficiaries, a mineral trust agreement enables the trust maker to detail explicit rules.  All beneficiaries are placed on notice of the trust terms which will designate how the trustee will manage the assets and income derived from royalties or income.  Unlike a will, a trust does not have to be filed publicly. Using this type of trust allows individuals to maintain privacy.