The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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Issue #17 The Water Report Tribal Rights Relief Sought Broad Purpose Ruling PIA Standard Domestic Use Qualification ti RESERVED RIGHTS & GROUNDWATER COURT REJECTS LUMbII NATION'S POSITION by Barbara Markham, Washington State Attorney General's Office In a suit filed in January, 2001, the United States and the Lummi Indian Nation sought: (1) a declaratory judgment that the Lummi Indian Nation (Nation) and its members held Winters rights to all the groundwater within the case area on a portion of the reservation; (2) injunctive relief prohibiting non - Lummi landowners within the case area from pumping groundwater from the aquifer in derogation of the Nation's rights; and (3) injunctive relief prohibiting the Washington Department of Ecology (Ecology) from exercising any jurisdiction over the groundwater, alleging the aquifer has no fresh water connection to any other water source off the reservation. The court granted Ecology's motion in 2002 to require the plaintiffs to join all landowners within the case area, even those with undeveloped land and no wells. In a recent ruling by the federal district court in Washington, Judge Thomas S. Zilly rejected two of the plaintiffs' theories of the case, that water is reserved for a broad homeland purpose and that it remains communally held by a tribe despite allotment of the land to individual tribal members and subsequent sale to non - members. United States and Lunnnni Indian Nation v. Washington Department of Ecology, 2005 WL 1244797, — F. Supp. 2d _ (W.D. Wash. May 20, 2005), amended, 2005 WL , (June 23, 2004). The order was amended from its original May 20th Order to remove references to a section on federal reserved rights subsequently deleted in a Ninth Circuit en banc opinion in Skokomish Indian Tribe v. United States, 401 F.3d 979, 989 -90 (911 Cir. March 9, 2005) (en banc), amended, _ F.3d _, 2005 U.S. App. LEXIS 10160 (June 3, 2005). The court also noted and affirmed the ruling it had made in 2003 that implied federal reserved rights, known as Winters rights, extend to groundwater. (See Winters v. United States, 207 U.S. 564 (1908)). "HOMELAND" PURPOSE Relying on In re General Adjudication of All Rights to Use Water in Gila River System & Source, 35 P.3d 68, 76 (Ariz. 2001), the United States and Nation contended that groundwater was reserved under a broad "homeland" purpose for uses including: domestic; municipal; commercial; industrial; and agricultural. The court ruled that water is reserved only for the primary purposes of a federal reservation, not for secondary purposes, citing United States v. New Mexico, 438 U.S. 696, 702 (1978), United States v. Adair, 723 F.2d 1394, 1409 (91' Cir. 1983) and Colville Confederated Tribes v. Walton (Walton II), 647 F.2d 42, 47. Because a broad homeland purpose would include water for every beneficial use, that purpose is inconsistent with the primary /secondary distinction set forth in the federal cases. The court stated that if the Nation wanted additional water, "any additional rights acquired by the Tribe will be similar to the rights of other municipal and private water purveyors, and will not have an 1855 Treaty date of priority." 2005 WL 1244797 at 11. Agreeing with Ecology's arguments, the court ruled that water was reserved only for the primary purpose of the reservation — i.e., to create an agricultural community. The court held that groundwater was reserved only for irrigation, to be quantified by the practicably irrigable acreage (PIA) standard as set forth in Arizona v. California, 373 U.S. 546, 601 (1963) (Arizona I), and for domestic uses. The quantity for each of those uses will be determined at trial. The amount of water quantified for agricultural and domestic uses may be used later by the Nation for those or any other uses, Judge Zilly decided. In determining the PIA quantity, the court ruled both surface water and groundwater sources would be included in the hypothetical irrigation system in order to maximize the Nation's PIA water right. Except for the purpose of calculating the Nation's PIA reserved water right, however, the court ruled that evidence of other surface and groundwater sources available to the Nation would not be considered as part of these proceedings (limited to the groundwater rights to the one aquifer that the Nation had selected as the subject of the suit). In determining domestic uses, the court noted that only a small percentage of the land in the case area — perhaps 7% — was PIA. The court ruled that the amount quantified for domestic uses would not be subsumed within the PIA amount, as had been done in Walton 1I and General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo. 1988), or determined as a percentage of the PIA award, as had been done in Arizona I. White the court ruled that the United States' population projection expert would be allowed to testify at trial regarding the water amount for domestic purposes, he noted that the parties could object on the grounds of either relevancy or that the answer would result in speculation. The court quoted from Arizona I, 373 U.S. at 601: "How many Indians there will be and what their future needs will be can only be guessed." Judge Zilly stated at a status conference on June 21 that he believed much of the United States' expert's population projection was speculation, and he would not allow speculative testimony into the proceedings. 24 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.