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

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my 15, 2005 The Water Report Next Steps At a status conference on June 21, the court agreed to allow the parties time to attempt to obtain a mediator and to settle all, or least portions of, the case. Judge Zilly estimated that the trial might take about three weeks, and set it for February 6, 2006. FOR ADDITIONAL INFORNIATION: BARBARA MARKHAM, Washington Attorney General's Office, 360 -586- 6749, or email: barbaram @atg.wa.gov. Barbara Markham is an Assistant Attorney General representing the Washington Department of Ecology in water rights matters. Her co- counsels on the Lummi case are Tom Young and Lucy Isaki, also with the Washington Attorney General's office. Ms. Markham previously practiced with the South Florida Water Management District, the Arizona Department of Water Resources, and the Wisconsin Department of Veterans Affairs. She received her J.D., cum laude and Order of the Coif, from the University of Wisconsin Law School. She is a member of the Wisconsin, Arizona, Florida and Washing- ton bars (an active member only in Washington). Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 25 Communal Ownership of Reserved Rights Tribal In 1855, the Treaty of Point Elliott created the Lummi Reservation and provided for allocation of the Rights reservation to individual tribal members. Most of the reservation land was allotted and conveyed to individuals by 1884, and the remainder (except for two acres) was allotted and conveyed by 1914. Beginning around 1920, Lummi members began selling their land to non - Lummis. Some of those buyers developed their land, while others did not. The United States and Nation argued that water rights never transferred with the land unless the Tribal water rights were perfected within a reasonable time of conveyance to a non - Lummi. Otherwise, they Retention contended, the water right never left communal tribal ownership. The court, however, ruled that conveyance of the land included conveyance of a proportionate share of the agricultural and domestic Winters water rights, whether or not the rights were perfected, citing United States v. Adair, 478 F. Supp, Walton Rights 336, 348 (D. Or. 1979) and Walton II, 647 F.2d at 50. The court determined that, based on Washington state law, 15 years was a reasonable time within which a non -Lummi would have to perfect the water right by beneficially using it, unless a longer time could be justified based on individual circumstances. Furthermore, the court ruled that if a Walton right (a Winters right transferred to a non - tribal member) was lost by a non -Lummi by failure to perfect it within a reasonable time, the right was lost to the Nation even if it thereafter reacquired the land. Citing United States v. Anderson, 736 F.2d 1358 (9`h Rights Lost Cir. 1984), the court rejected the plaintiffs' arguments that the water right never left the Nation's ownership if the right was never perfected by the non -Lummi owner. Finally, the court ruled that the United States and Nation will bear the burden of proving what Burden of Winters rights are held by the Nation and its members. Because about 15% of the land in the case area Proof has been reacquired by the Nation and its members from non -Lummi owners, that burden will include proving how long the land was in non -Lummi ownership, and what Walton rights were preserved if that period was longer than 15 years. Next Steps At a status conference on June 21, the court agreed to allow the parties time to attempt to obtain a mediator and to settle all, or least portions of, the case. Judge Zilly estimated that the trial might take about three weeks, and set it for February 6, 2006. FOR ADDITIONAL INFORNIATION: BARBARA MARKHAM, Washington Attorney General's Office, 360 -586- 6749, or email: barbaram @atg.wa.gov. Barbara Markham is an Assistant Attorney General representing the Washington Department of Ecology in water rights matters. Her co- counsels on the Lummi case are Tom Young and Lucy Isaki, also with the Washington Attorney General's office. Ms. Markham previously practiced with the South Florida Water Management District, the Arizona Department of Water Resources, and the Wisconsin Department of Veterans Affairs. She received her J.D., cum laude and Order of the Coif, from the University of Wisconsin Law School. She is a member of the Wisconsin, Arizona, Florida and Washing- ton bars (an active member only in Washington). Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 25