Water Resources

US District Court dismisses monetary claims against poultry companies

2009-07-24T19:16:00.003-06:00

On Wednesday July 22, 2009 US District Judge Gregory Frizzell, Norther District of Oklahoma, dismissed all monetary claims by the State of Oklahoma against poultry companies located in Arkansas. At issue has been the ongoing battle over pollution in the Illinois River, which flows from Northwestern Arkansas to Northeastern Oklahoma. The river of contention originates in the municipal headwaters cities of Fayetteville, Springdale, and Rogers, AR, flows through the pastoral hills and meadows of poultry country into Oklahoma, past Tahlequah and into Tenkiller Ferry Reservoir.

The river is nutrient enriched by all the things that happen when humans dominate a watershed - urban development, industrial discharge, municipal discharge, agricultural runoff, and hydrologic regime alteration.

Oklahoma wants Arkansas to cease and desist, or some say, cease to exist.

At issue was the ability of Oklahoma to seek remedy for damages without engaging the tribes in State of Oklahoma v. Tyson Foods, Inc., et. al., 05-cv-329, N.D. Okla. Poultry companies asserted that OK AG Drew Edmondson's case could not go forward under Rule 19 because not all necessary parties to the case were at the table at filing back in 2005.

Poultry companies provided legal precedent for dismissal of claims; Oklahoma and the Cherokee Nation responded by forming an impromptu agreement to share water rights at some level and backdate Cherokee involvement in the suit with Oklahoma serving as their representative. See: http://www.oag.state.ok.us/oagweb.nsf/66835e3f3beb9f30862572ad007bf737/1fe1036b5b4c298e862575be004ae6c2/$FILE/poultry%20-%20state%20cherokee%20agreement.pdf

Judge Frizzell cried fowl. He asserted legal precedent that made it clear that the waters of Cherokee Country are Cherokee jurisdiction first, and that Oklahoma has the burden of any claims on those resources. In addition, the notion that Oklahoma would or could represent tribal interests fairly was disputed by Judge Frizzell. Only the non-monetary claims in the case were left intact.

From the conclusion:
"The Cherokee Nation is a required party under Rule 19 with respect to the State’s claims for damages. Joinder of the Cherokee Nation is not feasible based on the Nation’s status as a dependent sovereign. The Cherokee Nation is an indispensable party and, pursuant to Rule 19(b), plaintiff’s claims for damages should not, in equity and good conscience, be allowed to proceed among the existing parties. The Cherokee Nation is not a required party to the State’s claims for violation of state environmental and agricultural regulations. Movants do not seek dismissal of plaintiff’s claims for injunctive relief. Therefore, defendants’ Motion to Dismiss [Doc. No. 1788] is granted with respect to Counts 1, 2 and 10 and the claims for damages asserted in Counts 4, 5 and 6. The motion is denied with respect to Counts 3, 7, and 8 and claims for injunctive relief asserted in Counts 4, 5 and 6.

Defendants’ alternative Motion for Judgment on the Pleadings Based on Lack of Standing [Doc. No. 1790] is granted insofar as the State attempts to retroactively obtain standing to prosecute the Cherokee Nation’s interests with respect to Counts 1, 2 and 10. The Motion for Judgment on the Pleadings is denied with regard to the remaining counts.

IT IS SO ORDERED this 22nd day of July 2009." Document 2362

Courts uphold litter application in Oklahoma vs. Poultry Industry case

2008-10-05T22:34:00.002-06:00

In the on-going conflict between Oklahoma and Arkansas, Oklahoma Attorney General Drew Edmondson has used a variety of arguments to get U.S. District Judge Gregory K. Frizzell to enjoin poultry producers in Arkansas from applying poultry litter to pastures in the Illinois River watershed. Edmondson has argued unsuccessfully that litter is a hazardous waste under CERCLA and RCRA. He recently argued that the litter is the source of potentially harmful bacteria in the Illinois River.

This week's ruling by Judge Frizzell said that Edmondson failed to make this case. See: http://www.nwaonline.net/articles/2008/02/16/news/021708azpoultrylawsuit.txt

The bar is high in these broad claims cases. Science is not advanced enough to prove causality in these complex systems without substantial data collection and process analysis.

Three cases challenge the scope of the Clean Water Act

2006-02-08T10:53:00.000-07:00

Law.com -

Three cases challenging the scope of the Clean Water Act will be argued Feb. 21, testing themes of federalism and commerce clause power that were much at issue during Alito's confirmation hearings. The cases have environmentalists worried about how Alito and Chief Justice John Roberts Jr. will ultimately come down.

In two of the cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, the issue is whether, under the commerce clause, the Clean Water Act protects certain wetlands that are adjacent to tributaries of navigable waters covered by the law. In the third case, S.D. Warren Co. v. Maine Board of Environmental Protection, the justices will decide whether the mere fact that a river flows through a dam produces a "discharge" that triggers federal jurisdiction under the act.

2005-04-27T11:35:00.000-06:00

Daily Herald - Utah should end water subsidies

Even GOOGLE honored World Water Day today!

2005-03-22T16:35:00.000-07:00

Check out google's mast today - pretty evocative.

Also, check their link honoring World Water Day (March 22, 2005):

http://www.democracynow.org/article.pl?sid=05/03/22/1530217

Great articles on water rights and market forces in privatization.

2005-02-17T16:59:00.000-07:00

IN THE UTAH COURT OF APPEALS

----ooOoo----
Summit Water Distribution Company, a Utah nonprofit corporation; Leon H. Saunders, an individual; Stuart A. Knowles, an individual; Trilogy Limited, L.P., a Georgia limited partnership; and Lynn Nelson, an individual,
Plaintiffs and Appellants,
v.
Mountain Regional Water Special Service District, a body politic of the State of Utah; Douglas W. Evans, Assistant General Manager of Mountain Regional Water Special Service District; James W. Carbine, General Manager of Mountain Regional Water Special Service District; David E. Hansen, Summit County District Engineer; Steve Jenkins, Director of the Summit County Health Department; the Governing Board of Mountain Regional Water Special Service District, Shauna L. Kerr, Robert Richer, and Kenneth E. Woolstenhulme, in their official capacities; and John Does 1-10,
Defendants and Appellees.

OPINION(For Official Publication)

Case No. 20040091-CA

F I L E D(February 17, 2005)
2005 UT App 66

¶1 Summit Water Distribution Company; Leon H. Sanders; Stuart A. Knowles; Trilogy Limited, L.P.; and Lynn Nelson (collectively, Summit Water) appeal the trial court's determinations that Summit County was authorized by the County Land Use Development and Management Act (CLUDMA), see Utah Code Ann. §§ 17-27-101 to -1003 (2001 & Supp. 2004), to adopt Ordinance No. 436 and, therefore, that Summit Water's complaint was untimely under the appeals provision of CLUDMA, see Utah Code Ann. § 17-27-1001 (Supp. 2004).

Check out the Water Resources IMPACT Journal

2005-02-12T14:47:00.000-07:00

The American Water Resources Association journal Water Resources IMPACT provides articles addressing many thematic water resource management issues.

The archived editions (pre-2004) are available online at no charge - go to http://www.awra.org/impact/ . More recent issues are only available to members of the society. The archived articles are worth looking through.

In particular, the July 2002 issue provides a great overview of the policies, practices, and science of water quality assessment in the US -

http://www.awra.org/impact/0207impact.pdf

Foster and Matlock wrote a great article (OK, I am biased) on the history of the CWA in the Sep 2001 issue, among other great articles -

http://www.awra.org/impact/0109impact.pdf

The Jan 2002 issue was sub-titled "The New Economy of Water" and provides six feature articles from as diverse a group as Mark Rosegrant (CGIAR), Penelope Brook (Worldbank) and Debra Coy (C. Schwab)-

http://www.awra.org/impact/0201impact.pdf

Linkmania

2005-01-21T14:06:00.000-07:00

The Colorado River Water Conservation District has a list of nearly 900 water-issue related links indexed under the following headings. Holy cow.

Aridity - study of dry areas
Arizona
Bureau of Reclamation
California
Climate
Colorado River Compact
Colorado River Delta
Colorado Water
Agencies:
State of
Colorado
Statewide Agencies
Regional Agencies
West Slope
Conservation/ Xeriscape
Drought
Education
El Nino/ La Nina/ ENSO - influencing factor of Colorado's weather
Endangered Species
Federal Agencies
General Water Links
Glossaries/ Water
Term Definitions
Groundwater
Gunnison River Basin Links
Images/ Photo Archives/
Maps
Infrastructure/Dams
International Water
Links
Irrigation/ Agriculture
Klamath River Basin
Issues - conflict involving endangered species, tribal rights, etc. in Oregon
Law
Mainstem of Colorado
River Links
Media
Reporting on Water
Native American Water
Issues
Nevada
New Mexico
Policy
Organizations - Colorado
Policy Organizations
- National
Private Water
Development Companies
Recreation
Salinity - significant water quality issue on Colorado, Arkansas Rivers
Streamflows, Hydrology and
related data
Utah
Water
Quality
Water Resources Agencies
Watershed
Groups
White River Basin Links
Wyoming Yampa
River Basin Links

Wetlands law under the Clean Water Act

2005-01-21T13:48:00.000-07:00

"Look Before You Fill," Michael Keller, Utah Bar Journal, Nov. 2004.

Two sources of water news

2005-01-20T13:06:00.000-07:00

Here are two good sources of timely water issue related news (although both have a western states emphasis):

Headwaters News and Colorado Water

I'll include both in the links in the sidebar.

Colorado River water conservation plan deadline looms

2005-01-04T15:08:00.000-07:00

"Interior Secretary Gale Norton last month told states in the drought-stricken Colorado River Basin to prepare a water conservation plan by this spring - or face the prospect of a federal plan being imposed on them...."
- Salt Lake Tribune

2005-01-03T17:11:00.000-07:00

New Google Scholar Advanced Search Page

2005-01-03T10:33:00.000-07:00

Des Moines Register - Iowa is out of compliance with the Clean Water Act. Iowa Environmental Protection Commission discusses non-compliance, as well as difficulties some communities have complying.

2005-01-02T10:53:00.000-07:00

According to this opinion piece in the Wichita Eagle, farmers and developers are purging municipal interests from a district water management board and stacking it with their own.

2005-01-02T10:45:00.000-07:00

A retiring 12-year member of the Central Arizona Water Conservation District Board of Directors provides some thoughts on water politics, policy and pricing in the Arizona Republic.

2004-12-30T11:34:00.000-07:00

The Christian Science Monitor has a piece about private international distribution of water. The article highlights the interests of water entrepreneurs as well as the arguments of activists who oppose private markets in water, but gives short shrift to arguments in favor of private markets.

Nez Perce water rights agreement

2004-12-30T11:00:00.000-07:00

From the Idaho Statesmen

Even though Congress has approved a historic Nez Perce water rights agreement, state, federal and tribal officials are still negotiating some of the fine details.
The success of those negotiations may depend on a voluntary conservation program started by ranchers in the Lemhi Valley.

…

The $193 million agreement resolves the Nez Perce tribe's claims to all of the water in the Snake River and its tributaries under a 1855 treaty. It would remove a cloud over the use of water for irrigation, power production, manufacturing, businesses and homes from Lewiston to Ashton. The Idaho Legislature and the Nez Perce Tribal Business Council still must approve the agreement by March 31 for it to take effect.

Navajo water rights settlement on the San Juan Basin

2004-12-30T10:36:00.000-07:00

Yesterday - Farmington, New Mexico Daily Times editorial on the proposed Navajo water rights settlement on the San Juan Basin.

Today -

The 20th Navajo Nation Council passed, in an historic 62-18 vote Wednesday, the proposed Navajo water rights settlement on the San Juan Basin. It was the first time in 136 years that the Navajo Nation, which spans Arizona, Utah and New Mexico in the Four Corners, had sought its water rights.

“This is as near an important document as the (U.S.-Navajo) Treaty of 1868 because of the water issues,” Delegate Wallace Charley of Shiprock said.

The delegates’ affirmative vote opened the flood gates for the Navajo government to gain eventual control of 56 percent of the basin’s diverted water supply — totaling 606,040 acre-feet of diverted water annually.

Utah studies two huge water projects

2004-12-30T10:29:00.000-07:00

From the Deseret Morning News

One would construct a reservoir in northern Utah, divert away the Malad River because it is too salty, and pipe in water from the Bear River 13 miles away. The other would pipe water 120 miles from Lake Powell to St. George in southern Utah.

Historical overview of Colorado water law

2004-12-29T14:10:00.000-07:00

Colorado Supreme Court Justice Gregory J. Hobbs, Jr. has provided an excellent backgrounder on Colorado (and in many ways, by extension, western) water law (PDF). First published in '97, the online edition is updated through 2002.

recent developments in water rights litigation - property rights arguments

2004-12-29T12:40:00.000-07:00

At law.com Marcia Coyle of the National Law Journal gives a roundup along with some nice background of current major federal water rights litigation involving property rights arguments.

The U.S. Supreme Court early next year will hear arguments in a breach-of-contract case whose legal question, while narrow, arises from what is fast becoming a familiar battle: The federal government, implementing a congressional mandate to preserve an endangered species or some other policy, diverts or reduces the amount of water from a federal water management project or river that farmers believe they have a legal right to use. Orff v. U.S., No. 03-1566.

…

government lawyers are negotiating with leading property rights advocates over a recent $26 million damages ruling -- the first of its kind -- for another group of California farmers.

A U.S. Court of Federal Claims judge held three years ago that water restrictions imposed on the farmers by the government under the Endangered Species Act ESA) were an unconstitutional taking without just compensation. Tulare Lake Basin Water Storage District v. U.S., No. 98-101 L.

And waiting in the wings is a $1 billion lawsuit filed by the Klamath Tribes against power company PacifiCorp last spring in the U.S. district court in Portland, Ore., seeking damages for dam construction on the Klamath River that prevents salmon from reaching the upper Klamath Basin. The tribes, whose lawyers say the federal government may be sued as well, are seeking compensation for loss of their historic treaty rights to fish in the river's headwaters.

…

"There's a whole series of cases, at least a dozen in the Supreme Court, going back many years, that involve similar issues," said Stouck. "Historically, the government was trying to improve the water-management system. They were doing water management for water management's sake."

The U.S. Bureau of Reclamation did that by building dams, or as in the Orff and Tulare cases, building the Central Valley Project, the largest federal water-management project in the United States, a 400-mile-long system of dams, reservoirs and canals begun in 1937. Along the way, farmers and others created water districts that entered into contracts with the bureau for distribution of water.

"What is happening now -- which is reflected in the current wave of litigation, with ESA cases so far the predominant type -- is that the government is doing something other than water management," said Stouck. "It's trying to pursue some other policy in a way that affects the flows of water."

…

Raising the temperature of the already-heated water rights litigation, according to some scholars and observers, is the involvement of the property rights movement.

In the Tulare case, for example, the water districts and farmers are represented by Roger and Nancie Marzulla of Washington, D.C.'s Marzulla & Marzulla, long-time property rights advocates. Nancie Marzulla is head of Defenders of Property Rights, a public interest law firm. Another major property rights group, the Pacific Legal Foundation (PLF), is also handling a number of water rights cases.

…

In Tulare, the water districts and farmers argued that they had contract rights entitling them to the use of a specified quantity of water. The government reduced that quantity three years in a row. By preventing them from using that water, the farmers argued that the government had deprived them of the entire value of their contract right -- a physical taking of property.

The Court of Federal Claims rejected all of the government's arguments, including that this was a regulatory, not a physical, taking, and that the public trust doctrine, the doctrine of reasonable use and nuisance law limited the scope of the farmers' property right.

"The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so," said Senior Judge John Paul Wiese.

"Wiese said every drop of water is a piece of property you own," said Stouck. "That concept has implications for lots and lots of takings.

Utah's water rights adjudication process

2004-12-29T11:54:00.000-07:00

Last week the Utah Supreme Court issued an opinion, In the Matter of the General Determination of Rights to the Use of Water, which provides an excellent summation of Utah's water rights adjudication process.

I. GENERAL ADJUDICATION OF WATER RIGHTS IN UTAH

¶4 "Utah, along with the majority of western states, follows the appropriation doctrine: First in time, first in right for beneficial use is the basis of the acquisition of water rights." Estate of Steed v. New Escalante Irrigation Co., 846 P.2d 1223, 1224 (Utah 1992). "This court has likened 'a drop of water [to] a drop of gold.'" Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 15, 9 P.3d 762 (alteration in original) (quoting Carbon Canal Co. v. Sanpete Water Users Ass'n, 425 P.2d 405, 407 (Utah 1967)). Because water is so highly valued, disputes over water rights are inevitable and frequent. Due to the high volume of such disputes and the often technical nature of the process followed to resolve them, Utah law empowers the state engineer to analyze and settle competing water rights claims. See Utah Code Ann. §§ 73-4-1 to -24 (1989).(1) However, when a meritorious request for a large scale determination of water rights is made "by five or more or a majority of water users upon any stream or water source," the state engineer is required to initiate a general adjudication in state district court to resolve all competing claims to water use in the area. Id. § 73-4-1; see also id. § 73-4-18 (allowing district courts to initiate a general adjudication in certain situations).

¶5 "[T]he purpose of the general adjudication process is to prevent piecemeal litigation regarding water rights and to provide a permanent record of all such rights by decree." In re San Raphael River Drainage Area, 844 P.2d 287, 289 (Utah 1992). General adjudication of water rights is a creature of statute, and title 73, chapter 4 of the Utah Code outlines the procedure the litigation should follow.

¶6 When a general adjudication is initiated, the state engineer notifies all known water rights holders and provides public notice of the adjudication by publication. Utah Code Ann. § 73-4-4. After the state engineer provides notice, all individuals and entities are required to submit any water rights claims within the area in question to the state engineer. Id. § 73-4-5. Following the submission of water rights claims, the state engineer conducts a hydrographic survey of the water system and evaluates the submitted claims. Id. § 73-4-3. When the survey is complete and all of the submitted claims have been evaluated, the state engineer then prepares a proposed determination of water rights for the area. Id. § 73-4-11.

¶7 Once a proposed determination has been created, section 73-4-11 of the Utah Code provides that a copy of that determination "shall be mailed by regular mail to each claimant with notice that any claimant dissatisfied therewith may within ninety days from such date of mailing file with the clerk of the district court a written objection thereto duly verified on oath." If no objection has been filed to a proposed determination, or if all objections have been resolved, the district court must enter judgment rendering the proposed determination the final adjudication of water rights for the given area. Id. § 73-4-12; see also Plain City Irrigation Co. v. Hooper Irrigation Co., 51 P.2d 1069, 1073 (Utah 1935) (noting that judgment should not be entered until all protests "have been disposed of and determined").