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. . . Western States Water Council Legal Committee Seattle, Washington July 14, 2005 The basis was the flooding of federal lands upstream of the tribal land, which caused degradation of the river, resulting in pollution, contamination of water wells, the blocking of fish migration and damage to the Tribe's agricultural pursuits and fisheries. The claim is based on both federal and state law. The district court granted summary judgement in favor of the defendants and the Ninth Circuit Court affirmed. The interesting aspect of the case was the Court found that fishing was not a primary purpose of the reservation, even though the treaty contained the "usual and accustomed" language found in many such treaties. In this case, the Court found that the treaty was intended to ensure that the Tribe was not excluded from its fishing areas, and distinguished this from the fmding that fishing was a primary purpose of the reservation. It distinguished similar language from the treaty in the4.dair case, which expressly provided that the Klamath Tribe would have exclusive rights on the reservation to fishing and gathering. She next discussed the Lummi case. Here the United States brought action on behalf of the Tribe seeking declaration that the relevant treaty reserved rights to ground water. This claim was treated by the state and landowners nearby. The treaty does not mention water or water rights. It does reserve rights to fish at the "usual and accustomed" places. However, surface rights are no longer accessible, and so the Tribe sought rights to ground water in order to develop. The federal district court had already held that reserved rights extend to ground water, but didn't quantify the right. The Tribe is claiming superior rights so that non-Indians will be excluded from using the ground water. At issue right now is the standard for quantification. The State is arguing that the "practicably irrigable acreage standard" should apply, citing the Arizona decision. The United States asserts that it should be sufficient to maintain the Tribe's traditional homeland. The court ruled that the PIA standard should apply, and now the next phase of the litigation is to quantify the ground water right based on that standard. The Yakima Adjudication is still ongoing. It was fIled in 1977. At this point, the litigants are in the middle of mediating the United States' claims, including the claims of the Forest Service and the Bureau of Reclamation. The mediation, which includes a few cities and irrigation districts, seems to be going pretty well. In a related matter, this past Spring, the State of Washington declared a drought in eastern Washington. In order to mitigate the effects of the drought, the state alerted post-1905 rights to potential cutbacks. There were also a lot of fish issues that came up pursuant to the trust water program. The State was able to negotiated leases on key streams and put the associated water rights into trust, which resulted in the accrual of some 1800 acre-feet of water to improve fisheries. The State is currently seeking a Challenge Grant under the Water 2025 Initiative to begin a water banking program in the Yakima Basin. WALKER RIVER LITIGATION STATUS REPORT Tracy Taylor, who is the Nevada Deputy State Engineer, gave an overview of the Walker River Basin, which is located primarily in Nevada, but also in California. He explained the topography of the basin, and the issues that have arisen over the associated water rights, which include federal claims, public trust claims, claims by allottees, and traditional state-based claims. The federal claims include BLM claims for instream flows. There is also a Marine Corps training camp that is asking for more water. A Walker Lake working group intervened in this ongoing litigation, seeking a reallocation of the river to allow for minimum levels in Walker Lake. They sought an injunction against upstream users and fIled a petition with the Nevada supreme court based on public trust allegations. The State Supreme Court denied the petition, 3