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WATERS

Arizona v. Navajo Nation

Issues

Is there a trust relationship between the Navajo Nation and the U.S. government and no jurisdictional prohibitions such that the Navajo Nation can compel the U.S. Government to assess and manage the Nation’s water interests in the Colorado River?

NoteThe authors mirror the parties’ and courts’ use of the term “Indian” as a legal term in this Preview.

This case asks the Supreme Court to consider whether there is a trust relationship between the Navajo Nation (“the Nation) and the U.S. government regarding the Nation’s water rights. Arizona contends that the Nation’s claim infringes upon the Supreme Court’s retained and exclusive jurisdiction over the allocation of water from the Colorado River mainstream in Arizona v. California. Furthermore, Arizona argues that the Nation has failed to state a cognizable breach-of-trust claim because the Nation did not specify a source of law establishing the government’s fiduciary duty. The Nation counters that the claim does not fall under the Supreme Court’s reserved jurisdiction because the Nation did not seek a quantification of its rights to the Colorado River mainstream. The Nation further contends that it has identified provisions in treaties, statutes, and the Winters doctrine to establish the trust duty on the federal government to ensure an adequate water supply for the Navajo Reservation. The outcome of this case will have far-reaching implications for the Navajo Nation’s water resources, the stability of water rights, and the water allocation system.

Questions as Framed for the Court by the Parties

(1) Whether the opinion of the U.S. Court of Appeals for the 9th Circuit, allowing the Navajo Nation to proceed with a claim to enjoin the secretary of the U.S. Department of the Interior to develop a plan to meet the Navajo Nation’s water needs and manage the mainstream of the Colorado River in the Lower Basin so as not to interfere with that plan, infringes upon the Supreme Court’s retained and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California; and (2) whether the Navajo Nation can state a cognizable claim for breach of trust consistent with the Supreme Court’s holding in United States v. Jicarilla Apache Nation based solely on unquantified implied rights to water under the doctrine of Winters v. United States?

The Navajo Nation (“the Nation”) is a federally recognized Indian tribe that signed the 1849 Treaty and the 1868 Treaty with the United States. Navajo Nation v.

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Florida v. Georgia

Issues

Should the Supreme Court equitably apportion the water of the Apalachicola-Chattahoochee-Flint River Basin between Florida and Georgia? 

This case asks the Supreme Court to consider whether it should equitably apportion the waters of the Apalachicola-Chattahoochee-Flint River Basin between Georgia and Florida. There is a long history of conflict between the states over Georgia’s use of water from the Chattahoochee and Flint rivers. Florida argues that the Supreme Court should impose a water consumption cap on Georgia because Georgia’s unreasonable water consumption inflicts real harm on Florida and its ecosystems. Georgia counters that Florida is not entitled to relief in this original jurisdiction action because Florida has not proven that the consumption cap will provide effective redress and Florida has failed to include a necessary party in the litigation. Florida contends that Georgia’s water usage has caused a reduction in the flow of the Apalachicola River that has harmed the region’s oyster population damaging the regional economy. Moreover, Florida suggests that it is the Court’s duty to intervene and apportion the water rights equally between the two states. Georgia disputes that it harmed the oyster population and organizations supporting it argue that upstream states have no duty to maintain or protect water flows to benefit downstream states. 

Questions as Framed for the Court by the Parties

This is an action by the State of Florida to equitably apportion the interstate waters of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”). 

The state of Florida has sued the state of Georgia over the use of water from the Apalachicola-Chattahoochee-Flint River Basin (the “ACF Basin”) in the United States Supreme Court, which has original jurisdiction over the matter—i.e., this case begins in the Supreme Court.

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Lozman v. City of Riviera Beach

Issues

Does the definition of “vessel” in 1 U.S.C. § 3 include, and thus grant federal maritime jurisdiction over,  indefinitely-moored structures like Lozman’s houseboat that are capable of transportation where their owners never intend to use them in that way? 

 

The City of Riviera Beach seized Fane Lozman’s houseboat after he did not comply with new city regulations. The Eleventh Circuit Court of Appeals affirmed the district court’s holding that the indefinitely moored houseboat was a “vessel” for purposes of maritime jurisdiction under 1 U.S.C. § 3. Lozman argues that courts should interpret “vessel” purposively and that his houseboat was not a vessel because its purpose was not to transport people or goods. The City of Riviera Beach counters that the definition of “vessel” requires a capability test that asks merely if the structure is capable of transporting people or goods. Additionally, both parties and the U.S. Solicitor General argue the subsequent purchase and destruction of Lozman’s houseboat by the City of Riviera Beach does not render the case moot because of a $25,000 security bond that the City posted. The Supreme Court’s decision in this case may reshape the role of state and federal courts in some maritime matters. The decision could also expand current maritime legislation to apply to structures such as casino boats or floating homes, or remove federal legislative protections for maritime lenders.

Questions as Framed for the Court by the Parties

Whether a floating structure that is indefinitely moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a "vessel" under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction.

The res in the putative in rem admiralty proceeding was sold at judicial auction in execution of the District Court’s judgment on a maritime lien and maritime trespass claim, Petn. App. 9a-10a, and subsequently destroyed, Petr. Br. 10-11. Does either the judicial auction or the subsequent destruction of the res render this case moot?

From March 2006 to April 2009, Fane Lozman docked his houseboat at the City of Riviera Beach (“the City”) Marina and used the houseboat as his primary residence. See The City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length649 F.3d 1259, 1262 (11 Cir.

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Texas v. New Mexico

Issues

Did the River Master err in determining that Texas, rather than New Mexico, should bear the cost of evaporative losses caused by Tropical Storm Odile?

Court below
Original Jurisdiction

The waters of the Pecos River are allocated to Texas and New Mexico in accordance with the terms of the Pecos River Compact. When disputes arose between the states regarding each state’s duties under the Compact, the Supreme Court issued an amended decree to regulate such duties and appointed a River Master to calculate and oversee the parties’ obligations. Texas now challenges the River Master’s determination that Texas, rather than New Mexico, should bear the burden of evaporative losses caused as a result of Tropical Storm Odile. Texas argues that the River Master erred in retroactively awarding evaporative loss credits to New Mexico because the River Master lacks authority to do so, and New Mexico’s motion for such credits was untimely. Texas further contends that Article XII of the Compact is inapplicable because the Bureau impounded flood water for public safety reasons, not for use in Texas. New Mexico counters that the River Master correctly granted a one-time retroactive credit for evaporative losses to New Mexico because New Mexico’s motion was timely, and the River Master was permitted to adopt procedures necessary to address novel accounting issues. New Mexico further asserts that Article XII is applicable because the Bureau impounded flood water primarily for Texas’s later use. The outcome of this case has implications for the role of the River Master and the procedures to be followed in future disputes under the Compact. In addition, the outcome of this case will affect the authority granted to court-appointed officers overseeing other interstate contracts, as well as the tolling procedures that other states should look to in resolving disputes arising from such contracts.

Questions as Framed for the Court by the Parties

Whether the River Master correctly allocated evaporation losses under the Pecos River Compact.

The Pecos River begins in Santa Fe, New Mexico, flows through southeastern New Mexico and west Texas, and empties in Texas into the Rio Grande. New Mexico’s Response to Texas’s Motion for Review, (“New Mexico Response”) at 1. In 1949, the state of Texas and the state of New Mexico formed the Pecos River Compact (“Compact”) to allocate the waters of the Pecos River.

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Texas v. New Mexico and Colorado

Issues

Can the Supreme Court resolve Texas, New Mexico, and Colorado’s dispute over the Rio Grande without the consent of the United States federal government?

Court below
Original Jurisdiction

This case asks the Supreme Court to resolve a dispute between Texas, New Mexico, and Colorado regarding apportionment of the Rio Grande’s waters without the consent of the United States. Petitioner Texas and Respondents New Mexico and Colorado do not take any exceptions to the Special Master’s Third Interim Report, which purports to resolve the dispute by imposing a water monitoring system through a consent decree. The United States argues that the proposed consent decree cannot be implemented without its consent, that the proposed decree should be rejected because it unlawfully imposes obligations on the United States, and because the consent decree would run counter to the Rio Grande Compact. The outcome of this case could have an impact on water management in the Southwestern United States and may also impact the relationship between states and the federal government.

Questions as Framed for the Court by the Parties

Whether the court should deny the motion by Texas, New Mexico, and Colorado for entry of a proposed consent decree that would resolve this dispute over the United States’ claim as intervenors that New Mexico violated the Rio Grande Compact without the United States’ consent.

The Rio Grande has its headwaters in Colorado, flows through New Mexico and Texas, and forms part of the border between the United States and Mexico.  First Interim Report of the Special Master, Texas v. New Mexico and Colorado, at 32-33.

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Washington v. United States

Issues

Do treaties between the State of Washington and Native American Tribes require Washington to protect the salmon population from land development; and, if so, must Washington pay to undo the development when the development was ordered by the United States and undoing it may not increase the salmon population?

In this case, the Supreme Court will decide whether treaties between the State of Washington (“Washington” or “the state”) and Native American tribes (“the Tribes”) guaranteeing the Tribes the right to fish in certain areas of the state require Washington to protect salmon against despoliation from land development. The present case arises out of a series of barrier culverts—tunnels that allow water to pass underneath roads but prevent fish from passing—that Washington constructed, some pursuant to federal specifications. The culverts prevent salmon from returning, thus inhibiting the Tribes’ ability to fish. Washington argues that the treaties were not created to address such environmental concerns. Moreover, Washington argues that it is not fair for it to be forced to replace the culverts, because the culverts were part of a federally-initiated roadbuilding program, and their design was suggested by the United States. Further, Washington argues that replacing the barrier culverts would not increase the salmon population. The United States and the Tribes disagree, asserting that the parties to the treaties intended to protect the salmon population against man-made despoliation. The United States and the Tribes also assert that no one forced Washington to create the culverts using the design that blocks salmon re-entry and that replacing those culverts would benefit the salmon population. At stake are the future of the salmon populations near the Tribes and potential limitations on state powers to make regulatory decisions.

Questions as Framed for the Court by the Parties

(1) Whether a treaty “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state's equitable defenses against the federal government where the federal government signed these treaties in the 1850s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.

In the mid-eighteenth century, Native American Tribes of the Pacific Northwest entered into a series of treaties whereby they relinquished territory but were guaranteed a right to off-reservation fishing. United States v. Washington, No. 13-35474, at 11–12 (9th Cir. 2017). Every treaty contained a “fishing clause,” which guaranteed “the right of taking fish, at all usual and accustomed grounds and stations . . .

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