Attorney General Marty Jackley has signed on to a friend-of-the-court brief with Nevada and eight other states challenging a U.S. Ninth Circuit decision that federal rights supersede state rights attached to groundwater under federally reserved tribal lands.
I won’t delve into that complicated issue of federalism and tribal sovereignty, but I will point to some of the language on to which Jackley has signed that seems to bear on the discussion we had here during our June special session on non-meandered waters and the discussion we will have again in the 2018 Session, thanks to our Legislature’s inability to craft an enduring resolution to the conflict between the public’s ownership of water and the private property rights of landowners whose fields have been flooded during recent rainy years.
Since the late 1800’s, water has been effectively legally severed from the land, affording states the ownership and authority to regulate the manner of water use, including water present upon federal lands.
…In the arid Western States, for more than 80 years, the law has been the water above and beneath the surface of the ground belongs to the public, and the right to the use thereof is to be acquired from the State in which it is found which State is vested with the primary control thereof [Laxalt et al., amicus curiae, Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, August 2017].
Jackley and his fellow A.G.’s are reminding us here that water sitting on land does not make that water the property of the landowner. That seems to run counter to the Legislature’s decision in June to let private landowners restrict public access to water. Legislators let that principle of public ownership of water slip a bit in June; let’s see if they recover or slip further in January.