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<br />OO"6r:;Q
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<br />August 7, 1992
<br />Issue No. 951
<br />
<br />WESTERN ~r;
<br />STATES WATER
<br />
<br />TIlE WEEKLY NEWSLETfER OF TIlE WESlERN STATES WAlER COUNCIL
<br />
<br />Creekview Plaza. SUite A-201 I 942 East 7145 So. I Midvale. Utah 84047 I (801) 561-5300 I FAX (801) 255-11642
<br />
<br />editor - Tony Willardson
<br />typist - Carrie Curvin
<br />
<br />ENERGY
<br />
<br />National Energy Policy
<br />On July 30, the Senate passed H.R. 776, the
<br />National Energy Policy Act CNSW #950), and
<br />requested a conference with the House on the matter.
<br />Among the conferees appointed were Senators
<br />Bennett Johnston (D-LA) , Dale Bumpers (D-AR),
<br />. Wendell Ford (D-KY), Jeff Bingaman (D-NM), Timothy
<br />.. Wirth (D-CO), Kent Conrad (D-ND), Richard Shelby
<br />(D-AL), Malcolm Wallop (R-WY) , Mark Hatfield (R-OR),
<br />Pete Domenici (R-NM), Frank Murkowski (R-AK) , Don
<br />Nickles (R-OK), and Conrad Burns (R-Ml) from the
<br />Committee on Energy and Natural Resources. Other
<br />Senators appointed to confer on specific titles include
<br />Senators Jake Garn (R-Ul) , Quentin Burdick (D-ND),
<br />Lloyd Benson (D-TX) , Daniel Moynihan (D-NY) , Max
<br />Baucus (D-Ml) , Bob Packwood (R-OR) and Robert
<br />Dole (R-KS). On the House side, Rep. John Dingell
<br />(D-MI) will be a key player. He opposed enactment
<br />of the Miller amendments CNSW #946) and proposed
<br />a substitute amendment less favorable to the states.
<br />The Western States Water Council and Western
<br />Governors' Association support the Miller
<br />amendments. Council members may wish to contact
<br />their members of Congress, particularly those named
<br />as conferees, to share their views.
<br />
<br />UTIGA1l0N
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<br />
<br />Coeur d'Alene Tribe of Idaho v. Idaho
<br />A federal district court in Idaho has dismissed
<br />claims brought by the Coeur d'Alene Indian Tribe and
<br />various individual tribal members against Idaho,
<br />individual state officials, and state agencies seeking
<br />an order quieting title in the tribe to the beds, banks,
<br />and waters of all navigable water courses within the
<br />1873 boundaries of the Coeur d'Alene Indian
<br />reservation (Coeur d'Alene Tribe of Idaho v, Idaho,
<br />No. 91-0437-N-HLR, July 20, 1992). These water
<br />
<br />chairman - Dave Kennedy
<br />
<br />executive director - Craig Bell
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<br />courses include Lake Coeur d'Alene. The complaint
<br />sought a declaratory judgement that the beds, banks,
<br />and waters at issue were for the exclusive use,
<br />occupancy, and enjoyment of the Tribe. Among other
<br />things, the complaint sought to enjoin Idaho and its
<br />agencies from taking any action to regulate the
<br />Tribe's right to these lands and waters.
<br />
<br />Rather than answer the complaint, Idaho filed a
<br />motion to dismiss on the grounds that the action was
<br />barred by the jurisdictional limitations imposed on the
<br />federal judiciary by the Eleventh Amendment to the
<br />U.S. Constitution. The Eleventh Amendment requires
<br />that the judicial power of the United States not be
<br />construed to extend to any suit commenced against
<br />one state by citizens of another state, or by citizens
<br />or subjects of any foreign state, Idaho's motion was
<br />made on the grounds that the Coeur d'Alene Tribe's
<br />complaint failed to state a claim upon which relief
<br />could be granted.
<br />
<br />The court, after noting that it was 'acutely aware
<br />of the significant interests at stake for both parties,'
<br />found that the Tribe's claims were barred by the
<br />Eleventh Amendment, and granted Idaho's motion to
<br />dismiss. With respect to claims against the state of
<br />Idaho, the court noted that the recent U.S. Supreme
<br />Court case Blatchford v. Native VillaQe of Noatak was
<br />particularly instructive. The court said, 'The Supreme
<br />Court held that the Eleventh Amendment bars suits
<br />by Indian Tribes against states without their consent'
<br />With respect to the suit against individual state
<br />officials, the district court came to the same
<br />conclusion, based on slightly different reasoning. The
<br />court said it 'could enjoin the individual defendants if
<br />it were to find that the State is not the rightful owner
<br />of the disputed lands and waters.' But, the court
<br />said, 'the claims asserted by the Tribe are without
<br />foundation, and similar claims have often been
<br />rejected by federal courts,'
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