District Court Water Judges - rule adopted

In a prior post, I discussed a proposed amendment to the Utah Code of Judicial Administration that would allow for the appointment of district court water judges. Rule 6-104 has now been formally adopted and will become effective on November 1, 2022. 

The adopted rule has a few changes from the original proposed rule. 

First, section 6 of the original proposed rule required water judges to publish any opinion that decided a water law case of first impression. Some people were concerned that publishing the opinions gave the impression that they were binding decisions. Section 6 of the adopted rule requires judges water judges to post decisions in water law cases of first impression. 

Second, section 8 was added to clarify that nothing in the rule affects the venue of a water law case.

To read the full text of the adopted rule, click here.  

Ute Indian Tribe v. McKee

The Tenth Circuit Court of Appeals recently issued its decision in the case of Ute Indian Tribe of the Uintah and Ouray Reservation v. McKee et al. This court focused on the issue of whether a tribal court had jurisdiction over a dispute between the tribe and a non-Indian about rights to water on non-Indian land within reservation boundaries.

McKee is not a member of the Ute Indian Tribe, but he owns non-Indian fee land that is located within the boundaries of the Ute reservation. McKee used water from two irrigation canals to irrigate his property. The tribe asserted that the water belonged to the United States in trust for the tribe. The tribe sued McKee in tribal court and won. The tribe then petitioned the federal district court to recognize and enforce the tribal court judgment. But the district court determined that the tribal court lacked jurisdiction over the dispute and dismissed the case. The tribe then appealed to the 10th Circuit Court of Appeals.

The court noted the general rule that tribes can regulate only their territory and their members on the reservation, and that they have no general authority over nonmembers of the tribe -- even when nonmembers engage in activity on the reservation and especially when they do so on non-Indian fee land. There are only two exceptions to this general rule: (1) tribes can regulate the activity of nonmembers who enter into consensual relationships with the tribe or its members and (2) tribes can regulate the activity of nonmembers on reservation land if that activity threatens the tribe's political integrity, economic security, or health and welfare. The tribe bears the burden of showing that one of these exceptions exists.

The tribe argued that the court should create a third exception that a tribe can exercise civil jurisdiction over a nonmember's use of a natural resource if the tribe claims an interest in that natural resource. The court rejected this argument and held that a tribe's authority does not extend to a nonmember's use of a natural resource on non-Indian land. 

The court then looked to see if either of the exceptions applied. The tribe argued that the first exception should apply because McKee has agricultural leases on tribal lands and a farming partnership with a tribe member. But the court noted that neither of facts related to the land and water at issue. Accordingly, the court held that the first exception did not apply. The court noted that for the second exception to apply, the challenged conduct cannot merely injure the tribe but must be "catastrophic for tribal self-government." The court determined that the water dispute between the tribe and McKee did not rise to this level, and therefore held that the second exception did not apply. Because neither exception applied, the court concluded that the tribal court lacked jurisdiction over the water dispute and upheld the district court's dismissal of the case.

The attorneys at Smith Hartvigsen were pleased to represent Mr. McKee in this case.

To read the full opinion, click here.