Raging across headline news wires during the month of December 2017 are reports about the federal government’s review of existing national monuments, with Department of the Interior Secretary Ryan Zinke having submitted during September his report to President Donald Trump recommending reduction and other modifications of some national monuments, while also including potential additions of national monuments. Conservationist organizations responded to say litigation would ensue, with outdoor clothing enthusiast giants Patagonia, REI and The North Face joining the protests over monument reductions involving Bears Ears National Monument in Utah.
In Nevada, the Basin and Range National Monument and Gold Butte National Monument were placed under review. The Secretary recommended changes to Gold Butte that would specifically protect tribal interests and historic water rights held by a local water district while also amending the monument’s existing proclamation to:
- . . .protect objects and prioritize public access; infrastructure upgrades, repair, and maintenance; traditional use; tribal cultural use; and hunting and fishing rights.
The Secretary specifically recommended the monument’s “boundary should be revised to protect historic water rights,” but the 19-page report does not say whether and to what extent existing boundaries should be revised to include, or exclude, the water supply sources from which the water district’s historic rights arise.
Background
On April 26, 2017, President Donald Trump issued Executive Order 13792 (Executive Order) directing review of designations under the Antiquities Act to determine if designations confirm to the President’s policies, with the Secretary further directed to provide two reports, the first of which was an interim report regarding Bears Ears and the other to be the Final Report summarizing the findings of the review for all other monument designations covered by the Executive Order. The Final Report issued around September but became publicly known in recent weeks.
The Antiquities Act and The Executive Order
Passed in 1906 and codified at 54 U.S.C. sections 320301-320303, the Antiquities Act has been utilized by various Presidents to designate or expand national monuments on federal lands, reportedly for such purposes more than 150 times and at least 18 times to reduce the size of 16 national monuments.
The Executive Order stated that designations of national monuments have a substantial impact on the management of federal lands and use of neighboring lands, and directing the Secretary to review designations and expansions that resulted in more than 100,000 acres or made “without adequate public outreach and coordination with relevant stakeholders.” Twenty-seven monuments made the list, with changes proposed for ten monuments, six of which recommend reductions in size without saying how much.
The Gold Butte National Monument and Tribal Water Rights
In 2016, President Obama designated nearly 300,000 acres for creating this monument of remote and rugged desert landscape located in southeastern Nevada near the City of Mesquite. Tribal interests exist, with tribes generally responding to monument designations with concerns about protection of sacred sites.
Though unknown whether any tribal interests expressed concern regarding protection of water supplies or water rights in Gold Butte, tribal water rights appear to be protected based on information from when Gold Butte was designated a national monument (i.e., pre-existing valid rights will be recognized), and now with the Secretary’s recommended changes to Gold Butte.
If a tribe holds a federal reserved water right and relies—or could rely—on groundwater as a supply source, more protections exist now than before, with or without Gold Butte National Monument. In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (9th Cir. 2017) 849 F.3d 1262, the Ninth Circuit ruled earlier this year that the federal reserved right applies to groundwater even if not previously exercised. The U.S. Supreme Court just recently denied review of the case, thereby upholding the Court of Appeals’ opinion. Accordingly, tribal water interests in Gold Butte should be well protected if a tribe holds a federal reserved water right. Even if relying instead on surface water supplies, the Secretary’s report makes clear that historic water rights are to be protected.
Included in the Secretary’s report was identification of a local water district with historic water rights, which refers to the Virgin Valley Water District (District) holding rights in multiple springs located within Gold Butte. The District’s spring rights reportedly are about 2,500 acre-feet per with overall water rights from all supply sources close to 24,000 acre-feet. Thus, nearly 10 percent of the District’s water supplies come from a supply source in which the national monument designation might continue to exist.
Conclusion and Implications
The intersection of land and water become further complicated by the intersection of federal, state and local rights and interests. A collision course can arise when stakeholders do not properly understand their rights and obligations, as well as those of other stakeholders. Even then, the best of understandings can lead to litigation if the political or policy preferences clash. In this instance with Gold Butte, the federal government (namely, Bureau of Land Management) and the water district reportedly have a good, working relationship. Absent that trust or confidence that takes years to build, or based on one act that can demolish trust or confidence, Gold Butte could evolve to what is happening now with Bears Ears. Stakeholders and decision makers are behooved by seeking to maintain and enhance inter-governmental relations including regular, transparent outreach with all other stakeholders—tribal, private and other public agencies. The alternative often includes litigation.
(Wesley A. Miliband)
