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.
Interesting, the EPA regulates, tests and monitors the water quality for the tribal water systems under an agreement with the various Tribal Councils, so it appears that the federal government has jurisdiction over the ground water under tribal lands as part of its treaty responsibility to the tribes. Tribal systems are not regulated by the State of South Dakota. The state of South Dakota continues to try to rule the tribes while not wanting any kind of affiliations with them. For South Dakota, it appears to me that by doing this case, Jackley has his eye on the Keystone XL for a fund raiser. As a bonus to the cult, Jackley probably already has the paperwork in place for a Dawes Act kind of remedy for another land and water grab.
Interesting case. Regarding tribes, the Winters Doctrine has long applied to surface waters. This provided tribal rights to surface waters on reservations and treaty lands, but there has been some question whether and to what extent the Winters Doctrine holds regarding groundwater. This case involves the right to use water from groundwater sources. This has been handled differently in different states, and case law in various states conflict, based on differences in how states interpret the Winters Doctrine.
This does not go to the right to regulate water quality, water pollution/discharge or water systems. That regulation is pretty well settled. Tribes can regulate water quality, and some do. Others have partnered with EPA to regulate.
Here is an overview of the Winters Doctrine:
http://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL32198.pdf
The incorrect, anti-public trust decision in the non-meandered waters case flies in the face of established law, practice, and good public policy. Persons who are able to lawfully access waters via section lines, rights-of-way, or float plane should have the use and enjoyment of public waters. The State’s hypocrisy concerning the ground waters case further highlights the State’s absurd position on applying the public trust doctrine over waters. Ground waters under a state certainly do not make those waters entirely state waters when there are higher sovereign interests.
Interesting comparison, John, of the two issues. The state is trying to assert that the feds have no right to assert superior claim to groundwater in tribal interests over state interests, but the Legislature is asserting that private property interests are superior to the public trust doctrine in terms of surface waters. Jackley says in the amicus curiae that case law is well established on the ground waters issue… yet as you say, the state ignores well-established case law on the public trust doctrine.