Chang, Kyle K.

English

University of Denver

Water Law Review Volume 7 Issue 1 Article 24 9-1-2003 United States v. Braren, 338 F.3d 971 (9th Cir. 2003) Kyle K. Chang Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Kyle K. Chang, Court Report, United States v. Braren, 338 F.3d 971 (9th Cir. 2003), 7 U. Denv. Water L. Rev. 155 (2003). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSsufficient evidence to determine the effects the transfers would haveon the hydrological system; therefore, the state engineer should haverequired the USFWS to conduct further studies. The court of appealsagreed with the district court, holding that the state engineer hadsubstantial evidence to consider, including two groundwater studiesprepared by the United States Geological Survey and an EIS for theeight transfers prepared by the USFWS as required by the SettlementAct. Evidence also showed that two of the water rights at issue were inan area that was not a significant geological recharge zone and that theremaining six rights were from an area no longer suited foragricultural use. Considering all of the evidence available, the courtheld the state engineer acted well within his authority in choosing notto require any further studies, granted the transfer permits, anddismissed Fallon and Churchill's protests.Churchill and Fallon also contended that each transfer shouldhave been contemplated in relationship to the effects that all plannedtransfers for the wetlands restoration would have on the hydrologicalsystem; therefore, the state engineer erred in only considering thetransfers on an individual basis. The court pointed out that Nevadalaw only requires the state engineer to make an assessment of aproposed transfer on an individual basis and to hold otherwise wouldexpand the discretionary authority of the state engineer beyond thelimits listed in applicable state statutes.Finally, Fallon and Churchill asserted the state engineer shouldhave determined the adequacy of the EIS prepared by the USFWS incompliance with NEPA. Alternatively, they asserted the state engineershould have put any action on the transfer petitions on hold whilelitigation was pending before the court of appeals on the USFWS'compliance with NEPA. With no parallel provision in Nevada law, thecourt held that the state engineer correctly ruled he had no authorityto determine compliance with a federal statute. With regard todelaying action on the water right transfers, the state engineer did notissue the transfers until after the district court had ruled in favor of theUSFWS. By the time this case came before the court, the appellatecourt had already affirmed the district court's decision regarding theEIS, making the issue moot. The Ninth Circuit Court of Appeals thusaffirmed the district court's ruling upholding the validity of the waterright transfers granted to the USFWS.Sean . BiddleUnited States v. Braren, 338 F.3d 971 (9th Cir. 2003) (holding thatdispute seeking to clarify both Klamath Tribes' water rights and assesspropriety of water rights standard not ripe for federal adjudication).Over the last twenty-five years, the United States, the KlamathTribes ("Tribes"), and numerous individual landowners have sought todetermine water rights to the Klamath River Basin ("Basin") inIssue 1WATER LAW REVEWOregon. In 1979, the United States District Court for the District ofOregon announced standards for prioritizing how water is applied tofulfill water rights granted by treaty to the Tribes, but left to Oregonthe task of allocating water to each of the Basin claimants. After theUnited States Court of Appeals for the Ninth Circuit affirmed thedistrict court's findings, Oregon developed and executed acomprehensive administrative adjudication of over 5000 claims tothose rights.Although adjudication was incomplete, the United States and theTribes initiated this action seeking a declaratory judgment that theTribes had a water right to support the gathering of plants and askingthe district court to clarify the nature and scope of the standardsannounced in its earlier decision. The district court issued adeclaratory judgment holding the Tribes had a water right to supportresources the Tribes gather, and announcing a two-part standard forquantifying the water right. Oregon and several individual defendants(collectively the "Brarens") appealed.On appeal, Oregon argued the dispute was not ripe and that thedistrict court should have abstained from exercising its jurisdiction;the Brarens appealed the district court's declaration of the two-partstandard for quantifying water rights. The court agreed with Oregonthat the dispute was not ripe and as a result did not address theBrarens appeal.In reaching its decision, the court outlined two components forthe determination of ripeness: constitutional ripeness and prudentialripeness. The court held that the facts sufficiently allegedconstitutional ripeness. A dispute is constitutionally ripe when there isa "substantial controversy" between parties with adverse legal interests.The court held that the conflict between Oregon and the Tribesconstituted a constitutionally ripe dispute. Oregon did not allegeotherwise.The court, however, held the case did not satisfy the prudentialripeness standard. To satisfy prudential ripeness, a party must show:(1) fitness of the issues for judicial decision, and (2) hardship to theparties should the court deny consideration. Analyzing thesestandards, the court found that this case failed both prongs of theprudential ripeness requirement. First, the United States alleged thatthe adjudication embraced a standard contrary to the Tribes' rights,even though adjudication was nowhere near completion. However,the court held the issues unfit for judicial decision because Oregonhad not officially adopted a standard to apply to federal water claims.Second, the court found no resulting hardship to the United Statesand the Tribes in waiting for additional factual developments. Thecourt stated that even if the district court's declaratory judgment wereenforced, the United States and the Tribes must nonetheless wait forcompletion of adjudication to ultimately realize the relief sought.The court thus held that the dispute was not ripe for federaladjudication. The court vacated the district court's judgment andremanded the case to the district court for entry of an order staying allVolume 7COURT REPORTSfederal proceedings pending completion of adjudication and relatedappellate review.Kyle K ChangTENTH CIRCUITRio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2003)(holding the Bureau of Reclamation has discretion to reducepreviously contracted water deliveries to comply with the EndangeredSpecies Act; diversion of water for the protection of endangeredspecies constitutes a beneficial use; and delivery contracts between theBureau of Reclamation and the water district did not create aperpetual and exclusive right to the water by the district).This action was the culmination of twelve years of litigationbetween non-profit environmental and conservation groups and thefederal agencies charged with administering water diversion andstorage facilities along the Middle Rio Grande. The basis of this actionwas to determine whether the federal agencies had the discretion toreduce deliveries of available water under its contracts with variouswater districts in New Mexico to comply with the Endangered SpeciesAct ("ESA").Defenders of Wildlife, Forest Guardians, National AudubonSociety, New Mexico Audubon Council, Sierra Club, and SouthwesternEnvironmental Center (collectively "Environmental Groups") initiatedthe litigation leading to this appeal. The Environmental Groups, onbehalf of the Rio Grande silvery minnow and the Southwestern willowflycatcher,' sued John W. Keys, III, Commissioner of the United StatesBureau of Reclamation ("BOR"), the United States Army Corp ofEngineers ("Corps") and the United States Fish and Wildlife Service("FWS") (collectively "Federal Agencies") for violations of the ESA inthe United States District Court for the District of New Mexico.The ESA created a process by which federal agencies must ensurethat no harm comes to endangered or threatened species or theirhabitat. After the FWS proposes a species for listing and identifies itshabitat, the ESA is triggered. The ESA prohibits any action that wouldirreparably harm or jeopardize an endangered or protected species ordestroy or adversely modify its habitat. Environmental Groups allegedthe federal agencies, by fulfilling their contracts with various waterdistricts, jeopardized the endangered Rio Grande silvery minnow.The United States District Court for the District of New Mexico1. Both species were named in the original complaint. The district court notedthat the Southwestern Willow Flycatcher had increased in total numbers, promptingthe parties to concentrate solely on the Silvery Minnow. The Tenth Circuitsubsequently confined their discussion to the Silvery Minnow.Issue 1

United States v. Braren, 338 F.3d 971 (9th Cir. 2003)

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United States v. Braren, 338 F.3d 971 (9th Cir. 2003)

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