Water law in the United States
Some derives from common law principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change.
The United States inherited the British common law system which develops legal principles through judicial decisions made in the context of disputes between parties.
At some point, before the water reaches the ocean it amasses sufficient size that the underlying lands become owned by the Nation or State in which they are situated.
As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes -- things common to all and property of none.
From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law.The riparian concept developed fully in those portions of the United States where lands were amply watered by rainfall.
The Court's decision continues: The primary natural asset was land, and the run-off in streams or rivers was incidental.
The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes.
This trend comes from a growing scientific understanding of the formerly mysterious behavior of underground water systems.
For instance, gradual contamination of some water supplies with salt has been explained with the knowledge that drawing water from a well creates a gradual seepage into the well area, potentially contaminating it and surrounding areas with seawater from a nearby coast.
Such knowledge is useful for understanding the effects of human activity on water supplies but can also create new sources of conflict.
[4] Indian tribes have sole rights to water only after they have determined practicable irrigable acreage (PIA).
According to legal scholar Bruce Duthu, tribes must prove that the requested amount of water is needed for their land and construct facilities to save it.
[5] Winters v. United States (1908) involved the Fort Belknap Indian Reservation, created by the 1888 agreement with the federal government.
Afterwards, non-Indian settlers off the reservation constructed dams in the river that interfered with the tribe's agricultural use of the water.
[6] In Arizona v. California (1963), the Court had to determine water rights of tribes along the Colorado River whose reservations were established by both statute and executive order.
A Native American allotee is entitled to the share of the reservation's water that is needed to irrigate their land.
Winters rights coming from a treaty or statute creating a reservation are property to which title is recognized.
During this July 2009 proceeding, the state of Oklahoma sought monetary damages and injunctive relief against the Tyson Foods Corporation, due to the injury to the Illinois River watershed from poultry waste.
The defendant, Tyson Foods, Inc., moved to dismiss the case because the Cherokee Nation was not involved, though they were a required party.
The ruling on this motion helped determine the standing of the Cherokee Nation concerning water rights in their region.
The Court, in order to determine if case could proceed without the involvement of the Cherokee Nation, applied Rule 19.
Furthermore, the Cherokee Nation claims their water rights derived from federal law and treaties were unaffected by statehood.
In entering into cooperative agreements with tribes, which would be necessary to resolve the issue of water rights (especially in the case of the Cherokee Nation and Tyson Foods) the state of Oklahoma must meet explicit requirements.
Approval of the Secretary of the Interior is required if the cooperative agreement dealing with issues of mutual interest involves trust responsibilities.
The federal government removed the Five Civilized Tribes to specific unsettled lands within the Indian Territory.
The ruling in this motion determined that the state did not have proper standing to proceed with this case without the Cherokee Nation's involvement.
For example, agricultural drainage, much of which is now responsible for maintaining a significant infrastructure, results largely from these local districts or other entities.
The statutes typically provide a method of seeking judicial review of the decisions made by the district in question.
