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<br />Indian Waler-1997: Trends and Directions in Federal Water Policy <br /> <br />I <br />I <br />I <br />I <br />I <br /> <br />Basin, and United States Justice Department has said, "We are not going to <br />participate. We think that that is an agency action, not an adjudication, <br />because the agency in Nevada has a very strong role in going out and <br />reporting on the claims that are made by all the parties, including the claims <br />based on Indian reserved water rights." Essentially, the state engineer <br />makes a preliminary order of who has what rights. This is administrative <br />agency action, not court action. Next, objections to the preliminary <br />determination made by the state engineer are collected. Then the state <br />engineer issues a final determination, and that determination goes to state <br />court, essentially becoming a complaint. <br /> <br />So we have all this activity going on in the state agency in Nevada. Is this <br />proceeding encompassed by the waiver of sovereign immunity in the <br />McCarran Amendment? I think there is some serious question about that. <br /> <br />I <br /> <br />What are we doing in Big Horn? Early on, we had the state administrative <br />agency taken out completely. The state agency does not report at all on the <br />reserved water rights. Instead staff of the court would do that. <br /> <br />Now, we're in the Walton case. That means we're adjudicating the reserved <br />rights claims of non-Indians who bought former allotments and claim now <br />that they had the right to use a portion of the treaty reserved water right for <br />irrigation purposes. <br /> <br />In Big Horn, we have a little bit different involvement ofthe state <br />agency-that I think it is a little more palatable from a policy standpoint or <br />the tribal point of view-and that is this: claims for Walton rights are filed <br />with the state engineer. These are procedures that the parties worked out in <br />Big Horn by consensus; basically, special procedures under the McCarran <br />Amendment for Walton rights. <br /> <br />The claims are filed with the state engineer, who then goes out and finds out <br />all the documents available to substantiate the claims or not, puts all of <br />them in a report to the court that is then filed with the special master. At <br />this point, all the parties are notified that the report by the state engineer <br />was filed. However, the report has no weight as evidence whatsoever. <br />Instead it goes to the special master who then takes objections to the claims <br />described by the report. So the state's position as an administrative agency <br />is irrelevant to the adjudication. <br /> <br />I think what Congress intended is that the state agencies not playa role in <br />the adjudications because the McCarran Amendment is a waiver of sovereign <br />immunity from suit. We got to have a lawsuit here, and a state. <br />administrative proceeding that makes binding determinations is not a <br />lawsuit. Thus it is not consistent with the McCarran Amendment. However, <br />this is an issue that's going to arise increasingly in general stream <br /> <br />20 <br />