November 5, 2018

Alaska case could be landmark in water rights disputes

By Anthony L. Francois Senior Attorney

Originally published by The Hill on November 5, 2018.

The fate of a moose hunter flying a hovercraft on an Alaska river will either protect or limit water uses across America, depending on how the Supreme Court rules after hearing argument today in Sturgeon v. Frost. This case involves John Sturgeon’s nearly decade-long legal battle with the National Park Service (NPS) over whether he can pilot his hovercraft upriver through Alaska’s remote national parks to access hunting grounds above them.

Alaska isn’t blessed with a lot of roads, so hovercraft are a far more important mode of transportation there than in the Lower 48. NPS regulations prohibit hovercraft in national parks nationwide. Hence, Sturgeon’s lawsuit: he claims that a special statute, applicable only in Alaska, allows him to fly upriver whether or not he is transiting one of the parks.

The San Francisco-based Ninth Circuit Court of Appeals ruled for the NPS. But they didn’t say that the Alaska-only law forbids Sturgeon’s hovercraft. Instead, the Ninth Circuit said the NPS can ban hovercraft anywhere in the country because it owns water rights in the rivers flowing through the parks, and those rights give them the authority to regulate the use of the rivers.

That ruling has wider national implications than hovercraft, which are against federal regulations in national parks anyway. When courts determine that federal agencies own what are called “reserved water rights” for the facilities they manage, they trump any other water rights developed after the facility was created. Since reserved water rights aren’t apparent at the time the federal facility is established, they can upend the settled expectations of others who establish competing water uses without knowing that federal rights later will be claimed and recognized.

This creates serious uncertainty for stakeholders upstream or downstream, including landowners, farmers and ranchers, and municipal authorities. Federal reserved water rights can be claimed decades after cities and towns develop drinking water supplies, or farms and ranches establish irrigation rights. Should federal bureaucrats decide to enforce a newly claimed reserved water right against these stakeholders, it could lead to their experiencing shortages, or even going entirely without their water. Not very neighborly of the federal government.

Recognizing that the power to overturn existing water developments is a recipe for abuse, the Supreme Court has limited the ability of federal bureaucrats to claim reserved water rights for their facilities. Implied rights must be clearly discernible from the law or presidential act that establishes the facility. The claimed water right must be essential for the facility to fulfill its primary purpose. And the courts may not award more water than is necessary to fulfill that purpose. These prudent limits on federal bureaucrats’ abilities to claim water rights serve to protect existing urban and farming developments that have grown up over decades, upstream and downstream from federal land.

But the Ninth Circuit used a much more relaxed approach to conclude that the NPS owns water rights in the rivers that flow through all national park boundaries. Instead, the oft-reversed Ninth Circuit said that if a federal agency thinks water rights would be useful, they will allow it even if the law doesn’t clearly provide them, and even if there is no way to know how much the agency needs.

Under this ruling, federal agencies all over the nation can claim reserved water rights at any time, with the explicit purpose of preventing existing water uses in, above or below their facilities, even if those uses have been in place for decades, and even if stopping or reducing them would have severe economic, environmental and other consequences for the federal agency’s neighbors. It’s easy to imagine how this unchecked power could be abused, creating a regulatory and legal nightmare for those affected by the decision.

Given these threats, Pacific Legal Foundation argued as amicus curiae to the Supreme Court that the Ninth Circuit’s lax version of federal reserved water rights should be reversed, and replaced with the Supreme Court’s strict, limited standard. This is the only way to protect water developments and the communities that depend on them from arbitrary federal interference nationwide.

Tony Francois is a senior attorney for Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.

 

 

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