Emerging Environmental Issues in Native Communities

Monday, September 18, 2017
Cynthia R. Harris

Former Staff Attorney; Director of Tribal Programs; Deputy Director of the Center for State, Tribal, and Local Environmental Programs

Tribes and Native villages are demonstrating reinvigorated environmental activism as they face increased pressures on natural resource use. Consequently, some of the most significant new developments in environmental law are occurring in Indian country. This month, ELI features a two-part webinar series on “Emerging Environmental Issues in Native Communities.”

The ELI Seminar will examine emerging issues in Native American and Tribal Law.

The first webinar, on September 19, will delve into ongoing litigation, bringing seasoned practitioners in federal Indian and tribal law to explain the intricacies of potentially groundbreaking cases affecting Indian country. Nicole Ducheneaux of the Standing Rock Sioux, John Echohawk of the Native American Rights Fund, and veteran Native American law practitioner James Meggesto will discuss several ongoing cases, including litigation surrounding the Dakota Access pipeline and the Agua Caliente groundwater case, both of which are garnering extensive media coverage and intense interest in the legal community.

The $3.8 billion 1,168-mile Dakota Access pipeline, intended to carry crude oil through the Dakotas and Iowa, has generated extensive controversy, protests, and litigation over the past year—all centered on one segment of the pipeline’s proposed route. This segment crosses under Lake Oahe, a reservoir half a mile upstream from the Standing Rock Sioux Reservation, which serves as the tribe’s drinking water source. Constructing this pipeline segment requires approval from the U.S. Army Corps of Engineers. After first granting the permit, the Corps delayed the permit in December 2016, pending a new and comprehensive environmental study in the final days of the Obama Administration. The Corps reversed its position under the new Trump administration and granted the developer, Energy Transfer Partners, the necessary easement to move forward. Oil is now flowing, but litigation continues, with U.S. District Judge James Boasberg recently ruling the government must reconsider part of its environmental review.

Among the Standing Rock Sioux Tribe’s allegations against the Corps are insufficient environmental analysis under the National Environmental Policy Act (NEPA) and lack of meaningful consultation under the National Historical Preservation Act. The Tribe expressed grave concerns over the impacts the pipeline would have on Standing Rock’s ancestral lands, which are of great cultural and religious significance, and the damage that a leak or spill into Lake Oahe could inflict on the Tribe’s drinking water supply and ability to use the water for irrigation and fishing. The Cheyenne River Sioux Tribe joined the Standing Rock Sioux Tribe in its lawsuit, arguing that the pipeline will render impure the sacred waters of Lake Oahe, thereby violating the Tribe’s right to religious exercise under the Religious Freedom Restoration Act (RFRA). Nicole Ducheneaux will join the panel to discuss the perspective of the Cheyenne River Sioux.

Agua Caliente addresses a broader question in federal water rights and could set new precedent by settling once and for all: is groundwater covered in federal reserved water rights?

Reserved water rights take root in the cornerstone 1908 U.S. Supreme Court case, Winters v. United States, which established the principle that Congress, when it sets aside federal lands—such as for a national park or Indian reservation— impliedly reserves water sufficient to meet the reservation’s primary purpose. Most U.S.-Indian tribe agreements are silent on water rights, as was the case for the 1888 treaty setting aside land for the Fort Belknap Indian Reservation. Non-Indians who later settled upstream on the Milk River threatened to cut off Fort Belknap’s water supply, claiming senior water rights under prior appropriation—the water rights regime common to the Western United States. In Winters, the Court noted that Fort Belknap was an arid reservation requiring great quantities of water for irrigation. It held that Congress must have impliedly reserved sufficient water from the river to fulfill the reservation’s purpose: converting the tribes from a “nomadic and uncivilized people” to a “pastoral and civilized” one.

But do Winters rights extend beyond surface water to groundwater? The Agua Caliente Band of Cahuilla Indians and the federal government argue they do—and they demand the tribe’s share of water from the Coachella Valley Water District. The Agua Caliente Reservation overlays parts of arid Riverside County, California, in a checkerboard pattern. Its only real source of surface water is the seasonal Whitewater River System, and the Band purchases from the Water District groundwater from the over-drafted Coachella Valley Groundwater Basin.

SCOTUS neatly avoided the groundwater issue in 1976’s Cappaert v. United States—an interesting case involving the rare Devil’s Hole pupfish in Death Valley National Monument, whose unique underground aquatic habitat was threatened by pumping at a nearby ranch. SCOTUS sidestepped directly applying the Winters doctrine to groundwater, stating that the groundwater and surface water in Devil’s Hole were hydrologically connected and therefore one and the same. But the Coachella Valley aquifer doesn’t offer this same easy solution. 

The Ninth Circuit agreed with the Agua Caliente Band of Cahuilla Indians earlier this year in Phase I of the litigation, addressing the critical question whether the Tribe has a reserved right to groundwater. The Water District pointed to contradicting Wyoming and Arizona state supreme court decisions, arguing that even if reserved rights could encompass groundwater, they do not here, due to the Tribe’s correlative rights under state water law, its historical lack of drilling for groundwater, and surface water the Tribe receives under an earlier decree. The Ninth Circuit firmly stated reserved water rights preempt conflicting state water law, noting that the groundwater is necessary to accomplish the reservation’s purpose—providing a home to the Tribe—and the groundwater basin meets the Winters standard for reserved water rights. The Water District filed a petition for certiorari to the Supreme Court in July. At the ELI webinar, John Echohawk will offer perspective on what a Supreme Court decision could mean for Indian country and for the future of reserved water rights.

Veteran Native American law practitioner James Meggesto will round out the panel, providing insight into key cases in Indian country worth keeping an eye on—for their significance to Indian country and environmental law alike. Notable cases include the Northern Cheyenne Tribe’s challenge to the U.S. Fish and Wildlife Service’s June decision to remove the Yellowstone Grizzly Bear population from the endangered species list. This follows an earlier complaint filed by a coalition of Tribes alleging FWS failed its duty to meaningfully consult with the Tribes and violated the Tribe’s religious free exercise rights under the RFRA.

Particularly intriguing is a petition filed by the Pawnee Nation in tribal court against 27 oil and gas companies. The Nation alleges the companies’ hydraulic fracturing activities is a driver of Oklahoma’s recent uptick in earthquakes, and seeks damages for harm caused to a number of the Nation’s administrative buildings during the September 3, 2016, 5.8 magnitude earthquake. This may be the first time such a case comes before a tribal court.

Part II of the ELI seminar, to be held on September 27, will focus on new challenges posed to tribes and Native villages by a changing climate and strained natural resources, economic obstacles and opportunities for renewable development, climate-induced relocation, environmental justice, and the Dakota Access Pipeline.

Visit https://www.eli.org/events/emerging-environmental-issues-native-communities-part-1 for more information about Part I.