Wyoming s Big Horn River Adjudication

Wyoming s Big Horn River Adjudication Ramsey L. Kropf Aspen, Colorado Arizona Colorado Oklahoma Texas Wyoming

Wyoming s Big Horn River Adjudication 1977-2007 In Re The General Adjudication of All Rights to Use Water in the Big Horn River System

What is a Special Master? The Special Master always wins. David Harrison, speaking on the Kansas v. Colorado litigation on the Arkansas River. The Special Master never decides anything. Owen Olpin, Special Master, Nebraska v. Wyoming. Rule 53, Wyoming Rules of Civil Procedure

A Story Setting: Winkleman, AZ Cast: Ranchers, Miners, Locals, and Special Master, Arizona General Stream Adjudication & Staff (me)

General Background

Some More Terms PIA Practicably Irrigable Acreage Allottee One who is granted a parcel of land and associated water under General Allotment Act Walton rights Water rights with a treaty based priority date, awarded to successor-in-interest to Allottees

Wyoming s Adjudication A little about Wyoming Red Rock Canyon, Wyoming (near Lander) The basins, which lie in the rain shadow of mountains, are very dry, with an average annual precipitation of about 250 mm (about 10 in) or less. "Wyoming (state)."microsoft Encarta Encyclopedia 2001. 1993-2000 Microsoft Corporation. All rights reserved.

Wyoming s Big Horn River 340 miles long Formed in central Wyoming by the Popo Agie and Wind rivers Main tributary of the Yellowstone River Irrigation water and hydroelectric power "Bighorn."Microsoft Encarta Encyclopedia 2001. 1993-2000 Microsoft Corporation. All rights reserved.

Big Horn Basin Agriculture Cattle Ranching Dryland Wheat farming 85% of cropland is irrigated "Wyoming (state)."microsoft Encarta Encyclopedia 2001. 1993-2000 Microsoft Corporation. All rights reserved.

Wyoming Demographics Population 1990 = 453,588 (3.4% decrease) Population 2000 = 493,782 (8.9% increase) 5.1 people per square mile Native Americans = 2.3 % of population

Wyoming s Experience Broad Reasons for Case Seven Supreme Court Determinations Three Basic Prongs to the Legal Holdings Three Different Phases

General Background Basic concepts to remember the order of decision making: 1. Special Master s Report and Recommendation 2. District Court s Decision 3. Wyoming Supreme Court Review 4. U.S. Supreme Court Review

Wyoming s Statutory Adjudication - Administrative

Wyoming s Statutory Adjudication Elwood Mead, Wyoming s first territorial engineer State owns the water Water appropriator has a use right

The Winters Doctrine Pre Winters United States v. Winan (1905) Winters v. United States (1908) The tension between federal and state powers Seniority of the water right Uncertainty

Reasons for Today s Basin-Wide General Stream Unresolved social/policy issues Regional Growth - Post WWII Management of water across state borders (interstate apportionment concerns) Impact of senior federal reserved rights Struggle between state and federal rights Ownership of public lands

Big Horn General Stream Adjudication Seven Cases "Big Horn I (1989)(PIA Quantification Seminal case) "Big Horn II" (Wyo. 1990)(Walton right case). "Big Horn III" (Wyo. 1992)(Instream Flow and Administration case). Big Horn IV (Wyo. 1993) (Denial of Rule 54 Certification of initial Walton right parameters). Big Horn V (1995) (Denies Super-Walton claims).

Big Horn General Stream Adjudication Seven Cases (continued) "Big Horn VI (Wyo. 2002)(Confirmed Walton right if water beneficially used within reasonable time after federal project water available) "Big Horn VII" (Wyo. 2004)(Dismissal of BOR contract claims as untimely).

Wyoming s Adjudication In the Beginning Getting to PIA Again - Indian Water Rights and what they mean Indian Reservations in U.S.

Wind River Indian Water Rights Winters Doctrine Allotment Era Ends Indian Reorganization Act McCarran Amendment Arizona v. California I

Treaties Second Treaty of Fort Bridger, 15 Stat. 673 (July 3, 1868); Treaty initiated with the Shoshone and Bannock Indians, establishing the Wind River Reservation Brunot Agreement, 18 Stat. 291 (Lander Purchase, $25,000 - December 15, 1874) First McLaughlin Agreement, 30 Stat. 93 (Thermopolis Purchase, $60,000 - June 7, 1897) Second McLaughlin Agreement, 33 Stat. 1016 (cedes additional 1,480,000 to government, $85,000, $50 payment to members, $1.25-$1.50/acre March 3, 1905)

Allotment Policy 1887 General Allotment Act Civilize Native Americans Encourage agrarian lifestyle Broke up reservation lands into individual allotments Loss of two-thirds of reservation territory to non- Indian ownership Zuni Agriculture

Wyoming s Adjudication - First Steps Local Controversy Authorizing Statute W.S. 1-37-106 Complaint Filed on January 24, 1977 Forum Skirmish

Wyoming s Adjudication Court appoints Special Master Teno Roncalio Parties and Special Master divide the case into three phases Critical organizational structure First Steps Phase I Determines all Indian Federal Reserved Water Rights Phase II Determines non-indian Federal Reserved Water Rights Phase III Determines State Based Water Rights

Wyoming s Adjudication Six years later the First Special Master s Report and Recommendation Issued (December 15, 1982) 451 page Report Four years of conferences and hearings 100 attorneys or so 15,000 pages of transcript Over 2,000 exhibits

Getting to PIA Two District Court Opinions Appealed to Wyoming Supreme Court February 24, 1988 Big Horn I issued by Wyoming Supreme Court Eleven years after complaint filed

Big Horn I Intent to Reserve Water Sensitivity to other uses Purpose of Reservation Agricultural Purpose No Federal Reserved Right to Groundwater No Retained Jurisdiction PIA Standard Applied Quantification Walton Rights Available Priority Date of Reservation 1868 Administration More

Big Horn I Case Affirmed by United States Supreme Court in 1989 4 to 4 vote; Justice Sandra Day O Connor does not participate No opinion tie vote affirms

Walton Rights Big Horn I Big Horn II Big Horn IV Big Horn V Big Horn VI

Big Horn II Res Judicata principles do not apply Answer and Appearance Treaty date priority granted to both Indian allottees and non-indian successors With conditions

Walton Rights And it goes on Big Horn IV Dismisses appeal (1993) Court must adjudicate all Walton Right Claims Big Horn V Super Waltons Law is a prediction of the what the Court will probably do.

Walton Rights Big Horn VI Special Master s Report District Court Decree Wyoming Supreme Court Reversal Remand Decree by District Court

Elements of a Walton Right in Wyo. A Walton claimant must prove the property claimed is either owned by an Indian allottee or was conveyed from an Indian allottee to a non-indian purchaser i.e. the property must be acquired from an Indian allottee; A Walton claimant must show that the claimed water was put to beneficial use by the Indian predecessor(s) or within a reasonable time after the property passed out of Indian allottee ownership; A Walton claimant must show that the claimed water right has been maintained by continuous use since the time of initial beneficial use; and A Walton claimant must show that the property subject to the claim is practicably irrigable.

Walton Rights Concern before District Court re: Administration Major Issue on Appeal - Tacking claims recommended to be denied Walton claimants cannot rely on the diligence of the United States in constructing a federal project to relate back their priority date to an 1868 treaty based water right. Affects 11 claims.

Walton Rights Big Horn VI Special Master s Report District Court Decree Wyoming Supreme Court Reversal Remand Decree by District Court

Special Master s Report District Court Decree Walton Rights Big Horn VI Wyoming Supreme Court Reverses in part, affirms in part (In re Rights to Use Water in the Big Horn River, 48 P.3d 1040 (Wyo. 2002)) Remand Decree by District Court

Big Horn VII District Court Dismisses Stutzman s Petition to hear claims for Bureau Reclamation water in Big Horn Adjudication Grants United States and Wyoming s Motions to Dismiss under 12(b)(6) District Court determines No jurisdiction Not proper Forum Claims barred by untimely filing Wyoming Supreme Court upholds District Court

Allotment Water Rights Treatment in Settlements Southern Arizona Water Rights Settlement Act 1982 US Dept. of the Interior Solicitor s Memo

Solicitor s Memo M-36982 Three Main Concepts 1. Just and Equal Distribution of Water 2. Recognition of Tribe s Broad Regulatory Power 3. Water Actually Available

The above discussion shows, however, that it is inaccurate to speak of either tribal governments or agricultural allottees as having plenary rights in water vis-à-vis each other. Agricultural allottees have rights tribes cannot wholly defeat; at the same time, tribes have regulatory authority over reservation water used from which allottees are not immune.

Common Threads in Settlement Ensure Allottee Participation Recognize that State and Tribal Positions Shift Enact Effective Tribal Water Codes Clarify Sovereignty Bind Non-parties into Settlements

STATE REGULATES TRIBE REGULATES PRIORITY DATE Land Owned in Fee by Non- Indian Successors to Allottees River has no impact offreservation XX Walton (Deference to State law overridden because water has no impact off-reservation) LAND OWNERSHIP CATEGORY Land never left Trust status River has impact offreservation XX Anderson, Big Horn Date of Indian reservation to the extent federal reserved right not lost by nonuse (apply Walton or Big Horn test) Land originally owned/conveyed by allottee Water put to beneficial use by allottee or within a reasonable time after title passed out of allottee ownership Continuous beneficial use Practicably Irrigable XX (Tradition of Indian sovereignty over reservation and tribal members preempts state authority) Date of Indian reservation Land removed from Trust and reacquired by Tribes XX (Tradition of Indian sovereignty over reservation and tribal members preempts state authority) If land allotted, same right as successor to allottee (date of Indian reservation), but quantified only to the extent right is not abandoned by nonuse after leaving allotment under Walton test If land homesteaded, then reacquired water right has date of state perfection, unless never perfected then date of reacquisition

Final Decree Proceedings Current cooperation in the basin between U.S., State, Tribes Court and State reaching end of Phase III process for examining state based claims Desire for Completion

Contemporary Significance of Western Stream Adjudications For example, from 2000 to 2025, California is expected to increase in population by the same number of total people in Montana each year. Texas will be importing people in numbers equal to Wyoming s population each year. Water Use and Water Management Impacted by Growth. Increasing Metropolitan demands for water. Increasing demands for water for energy development.