Court ruling backs tribe over endangered species claim
Story-Date: 01:11 a.m. PST Tuesday  , December 23, 1997

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Court ruling backs tribe over endangered species claim


By Matt Kelley
Associated Press Writer


PHOENIX (AP) -- An American Indian tribe's water rights take priority over
a lawsuit aimed at protecting an endangered songbird, a federal judge has
ruled.

Though the environmentalist lawyer who filed the suit worries that the
ruling could indicate a new weapon against endangered species
suits, the tribe's lawyer calls it a victory for Indian governments.

"I don't see any huge, wide, sweeping changes in the way courts do their
business because of this case," lawyer Bill Quinn said Monday. "What is
significant about this case is, in a judicial climate where the
sovereignty of Indian tribes has been whittled away over the last 20 years,
this case has gone against that trend."

The ruling this month is the first in which an Indian tribe's rights as a
sovereign government have scuttled an environmental lawsuit, Quinn and
other lawyers involved in the case said.

Although the decision is being appealed and only applies to the songbird
case, it could signal a new avenue to block endangered species
lawsuits, the lawyer who filed the case said.

"If this case were read to ... come down on the side of tribal sovereign
immunity and tribal interests, then yes, there is a fear that it could be a
very serious impediment to the public bringing lawsuits under
environmental statutes," said Geoff Hickcox, who represents the
Tucson-based Southwest Center for Biological Diversity.

The environmental group sued federal officials in 1995 to block plans
to raise the level of Roosevelt Lake, a reservoir northeast of Phoenix. The
extra water would drown trees which are home to one of only five large
breeding populations of the endangered Southwest Willow Flycatcher, a small
songbird, Hickcox said.

Most of the extra water would be reserved for the Salt River Pima-Maricopa
Indian Community, which gained the right to store water in Roosevelt Lake
under a settlement approved by Congress in 1988, before the bird was listed
as an endangered species.

The tribe asked U.S. District Judge Paul Rosenblatt to dismiss the lawsuit,
and Rosenblatt agreed in a ruling dated Dec. 11. The tribe needed to be a
party to the lawsuit because its water rights would be affected, but could
not be sued because of the doctrine of tribal sovereign immunity,
Rosenblatt ruled.

Sovereign immunity means a government cannot be sued without its consent.
Since the Salt River Pima-Maricopa tribe would not agree to be sued over
the flycatcher issue, the lawsuit had to be dismissed, Rosenblatt ruled.

Hickcox said he appealed the ruling last week to the 9th U.S. Circuit Court
of Appeals in San Francisco. The bird's habitat will not be affected for at
least several months because the reservoir is only about 17 percent full,
he said.

Hickcox said the tribe's water rights settlement gave it other places to
store its water. The lawsuit should be allowed to go forward because it
supports an important public goal: Protecting endangered species,
Hickcox said.

"This was not a suit directly challenging the tribe's sovereign immunity,"
Hickcox said Monday. "It's just not the right case for that decision."

Quinn argued that the water rights settlement gave the Salt River tribe no
other choice but to store its water in Roosevelt Lake and said he expects
the appeals court to uphold Rosenblatt's ruling. Quinn said he was
concerned, however, that lawyers for the federal government argued against
the tribe's move to dismiss the case.

"The United States completely and totally failed to support tribal
interests in this case," he said.



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