Dornbusch, David M.

English

Colorado Law

University of Colorado Law School Colorado Law Scholarly Commons Natural Resource Development in Indian Country (Summer Conference, June 8-10) 1988 6-10-1988 The Wind River Litigation: Effects of the Wyoming Supreme Court’s Decision on the Wind River Reservation’s Water Use and Implications for Other Reservations’ Water Rights David M. Dornbusch Follow this and additional works at: https://scholar.law.colorado.edu/natural-resource-development-in-indian-country  Part of the Aquaculture and Fisheries Commons, Courts Commons, Environmental Law Commons, Indian and Aboriginal Law Commons, Judges Commons, Natural Resource Economics Commons, Natural Resources Law Commons, Natural Resources Management and Policy Commons, Oil, Gas, and Mineral Law Commons, Property Law and Real Estate Commons, State and Local Government Law Commons, Water Law Commons, and the Water Resource Management Commons Citation Information Dornbusch, David M., "The Wind River Litigation: Effects of the Wyoming Supreme Court’s Decision on the Wind River Reservation’s Water Use and Implications for Other Reservations’ Water Rights" (1988). Natural Resource Development in Indian Country (Summer Conference, June 8-10). https://scholar.law.colorado.edu/natural-resource-development-in-indian-country/18 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.     David M. Dornbusch, The Wind River Litigation: Effects of the Wyoming Supreme Court’s Decision on the Wind River Reservation’s Water Use and Implications for Other Reservations’ Water Rights, in NATURAL RESOURCE DEVELOPMENT IN INDIAN COUNTRY (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1988).  Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  THE WIND RIVER LITIGATION:EFFECTS OF 11Th WYOMING SUPREME COURT'S DECISIONON THE WIND RIVER RESERVATION'S WATER USE ANDIMPLICATIONS FOR OTHER RESERVATIONS' WATER RIGHTSDavid M. DornbuschDavid M. Dornbusch & Company, Inc.1736 Stockton StreetSan Francisco, California 94133NATURAL RESOURCE DEVELOPMENT IN INDIAN COUNTRYNinth Annual Summer Program Sponsored by theNatural Resources Law CenterUniversity of ColoradoSchool of LawJune 8-10, 1988THE WIND RIVER LITIGATION:EFFECTS OF THE WYOMING SUPREME COURTS DECISIONON RESERVATION WATER USE ANDOTHER RESERVATIONS' WATER RIGHTSDavid M. DombuschI. IntroductionOn February 24, 1988, the Wyoming Supreme Court handed down itsdecision on the Wind River Reservation water rights case. The districtcourt had reviewed and modified the special master's recommended decree,which itself was modified by Judge Jaffe before being reviewed by thedistrict court. Unless the case is reviewed by the United States SupremeCourt and the decision modified again, the Wind River Case has beenconcluded.In this paper, I will discuss what I feel are some of the key points of thatdecision as it affects water use on and off the Wind River Reservation andwater rights quantifications for other Indian reservations.(Reference: The following citations are taken from the Wyoming SupremeCourt's Decision: The General Adjudication Of All Rights To Use Water InThe Big Horn River System And All Other Sources. State Of Wyoming,October Term 1987.)II. Context of the LitigationA. States Will Decide Indian Reservation Water RightsThe court said,"Congress' policy under the McCarran Amendment is to allowstate courts to adjudicate Indian water rights as part of generalstream adjudications." (p. 9)1The attorneys and witnesses for the United States and the Tribes thoughtthat would make it very difficult for the tribes to obtain a fair judgement,but as we have seen from the Wind River decision it is not necessarilytrue. In fact, it seems that the Wind River Tribes received a water rightthat is nearly as large as they might have hoped for. It also appears thatthe few issues that were decided against the Tribes' interests were notasserted as firmly as those that were decided in their favor. While thatmay be a small consolation to the Wind River Tribes, it may be cause foroptimism among those tribes whose water rights will be determined in thenear future. I will discuss these issues below.B. Federal Government ParticipationHowever, before I discuss the issues of the case itself, one point is worthmentioning. I understand that in the Wind River litigation, both sidesspent a considerable amount of money, and Wyoming spent considerablymore than the United States and Wind River Tribes combined. And, itappears to me from the Wind River experience, and from other ongoingIndian water rights cases, that the United States is corrunitted to devotingconsiderable resources to assert Indian water rights claims. This, plusthe fact that the United States and the Tribes were extremely successfulin Wind River, will hopefully send a message to other states that it will bein their best interests to negotiate and not spend the large sums of moneyrequired to litigate Indian water rights.Certainly, the Wind River case has provided most of the ground rules uponwhich Indian water rights can be determined. Hopefully, it will not taketoo many more cases to develop the necessary remaining rules and todemonstrate to the states that it would be less expensive to negotiate thanto litigate.2III. Principal Points of the DecisionA. Purpose of the Reservation is Key in Determining AcceptableUses for which Water will be Awarded.The Wyoming Supreme Court leaned very heavily on the "purpose" of thereservation in determining a basis for the Tribes' water rights. Thisworked in the Indian's favor on the Wind River Reservation, whereagricultural development potential is very large, but it could pose aproblem on some other reservations where the stated purposes do not holdmuch promise for justifying a water claim.The court asserted that it is not sufficient simply to assert that areservation is a homeland where Indians can establish a permanent place tolive. It said,'The district court correctly found that the reference to'permanent homeland' does nothing more than permanently setaside lands for the Indians; it does not define the purpose ofthe reservation." (p. 24)1. Agriculture and Access to Fishing - Acceptable PurposesThe court then focused on the economic activities which were the primarypurposes of the reservation. At Wind River, the court said that therewere two primary purposes/economic activities:-- agriculture, for which "practicably irrigable acreage" (PIA) wasdetermined to be the correct measureto preserve access to fishing (p. 23)By applying a very detailed analysis of PIA, the United States was able toobtain a large water rights award for agriculture uses. However, it wascurious that even though the court declared "access to fishing" as aprimary purpose of the Reservation, it overruled the special master and didnot award any instream flow rights to preserve the fisheries themselves.32. Fisheries: Not Acceptable for Water Rights Quantification"Instream fishery flows have . . . been recognized where theIndians were heavily if not totally, dependent on fish for theirlivelihood. . . . The master, erroneously concluding that areserved right for fisheries should be implied when the tribe is'at least partially dependent upon fishing,' awarded an instreamflow right for fisheries. The district court, however, findingneither a dependeng upon fishing for a livelihood nor atraditional lifestyle involving fishing, deleted the award. Thedistrict court did not err. The evidence is not sufficient toimply a fishery flow right absent a treat/ provision." (p. 26)The underlines are mine, not the court's.So, "access to fishing" (one of the reservation purposes) was not judged tobe the same as an instream fishery flow. No water right was given for"access to fishing". But it is not clear to me what the implication mightbe if the streams were to dry up because of water use by junior usersupstream from the reservation. Could the Tribes claim they had lost"access to fishing" and therefore claim a right to stream flow?Some implications for other reservations are indicated by the underlinedportions of the court's decision. If the Wyoming Supreme Court's decisioncan be used as a guide, reservations that (1) are totally dependent uponfish for their livelihood, (2) have a traditional lifestyle involving fishing,and/or (3) have a treaty provision specifically referring to fishing as aprimary purpose of the reservation would presumably be entitled to awater right for its fisheries.3. Minerals: Not a Reservation Purpose and Not Acceptablefor Water Rights QuantificationThe court said,"All parties to the treaty were well aware before it was signedof the valuable mineral(s) . . . underlying the Wind River IndianReservation. . . . The question of whether, because the Indiansown the minerals, the intent was that they should have the4,....,	 water necessary to develop them must be determined, of course,by the intent in 1868? (meaning the 1868 treaty) (p. 26)The court went on to assert that there was no indication in the treatythat the purpose of the reservation was to develop the minerals."The fact that the Tribes have since used water for mineral andindustrial purposes does not establish that water was impliedlyreserved in 1868 for such uses." (pp. 26 & 27)So, although the court conceded that:". . . it was known to all before the treaty was signed that theWind River Indian Reservation contained valuable minerals,nonetheless (the court) concluded that the purpose of thereservation was (only) agricultural." (p. 25)The court concluded that no water right should be awarded for mineral orindustrial development.4. Municipal, Domestic and Commercial: An Appropriate Use,But Not for Water Rights QuantificationThe court agreed that municipal, domestic and commercial water uses areappropriate. However, as I read the decision, the court did not award awater right for those uses based upon our analysis of the specificquantities which the uses would require. The court said that municipal,domestic and commercial uses are subsumed in agricultural reserved rights.In other words, it is all right for the Tribes to use the water quantifiedin the PIA analysis for municipal, domestic and commercial purposes.This decision confuses me, because the Tribes must use water for domesticand municipal purposes if they are going to live on the reservation, butany such use would take water away from agricultural use - a primarypurpose of the Reservation.r-I think the evident contradiction arises, because the court expectsmunicipal, domestic and commercial water to come from groundwater andnot surface water, and rights to groundwater are not tied to surface waterrights. I will discuss this issue below.5. Livestock: An Appropriate Use, But Not for Water RightsQuantificationThere was not much to indicate the court's thinking regarding thelivestock claim. It presented only a one-line comment.'The court did not err in finding a sole agricultural purpose forthe reservation or in subsuming livestock use within thatpurpose." (p. 27)I infer from the word "subsume", that the court is saying it is all right touse the water awarded on the basis of PIA for livestock (as it is all rightto use that water for municipal, domestic and commercial purposes), but noadditional quantity of water is awarded specifically for livestock.This decision confuses me, because I would have thought that livestockwould be considered an agricultural activity. My guess is that no waterwas awarded for livestock, because the court used PIA as the sole methodfor the agricultural water right quantification.Unfortunately, the Wyoming Supreme Court did not provide any guidanceon what should be the basis for a water rights claim where a reservation'sprimary purpose is not agriculture and/or little or no agriculture potentialexists.6. Wildlife and Aesthetics: Not a Reservation Purpose andNot Acceptable for Water Rights QuantificationThe court said,(there is no) "tradition of wildlife and aesthetic preservationwhich would justify finding this to be a purpose for which thereservation was created and for which water was impliedlyreserved." (p. 27)67. Appropriate Future UsesAlthough the court based the Tribes' water right award exclusively onirrigated agriculture uses, it was very interesting to me that bothdissenting opinions (there were only two) said that the water right shouldriol be limited exclusively to an agricultural purpose. Specifically, thefirst dissenter wrote,'The fault that I find with such a limitation (that is, anagricultural limitation) is that it assumes that the Indian peopleswill not enjoy the same style of evolution as other people, norare they to have the same benefits of modern civilization. Iwould understand that the homeland concept assumes that thehomeland will not be a static place frozen in an instant of timebut that the homeland will evolve and will be used in differentways as the Indian society develops. For that reason, I wouldhold that the imolied reservation of water rights attaching to anIndian reservation assumes p.ny use that is appropriate to theIndian homeland as it progresses and develops." (First page ofthe dissenting opinions.)The underlines are mine.I think the dissenters saw this important issue very clearly. Using PIA asthe exclusive measure of the tribes' water rights resulted in a reasonablewater rights quantification in Wind River, because the Reservation hassuch a large irrigated agriculture requirement, and the non-agriculturalclaim was only 4 percent of the irrigated claim. But non-agricultural usepotentials will be more important to tribes on other reservations, andhopefully the courts deciding those cases will understand that.B. Groundwater - Logic versus LawThe court said,'The logic which supports a reservation of surface water tofulfill the purposes of the reservation also supports reservationof groundwater." (p. 28)7That seems clear enough. Nevertheless, the court said that because nocase law was cited applying the reserved water doctrine to groundwater,"there is no reserved groundwater right." (p. 28)The wording of the decision sounded like the court was asking for lawwhich could be applied to the logic of the situation, but since it wasshown none it felt unable to tie groundwater and surface water together.This seems to me to be a serious problem that needs to be remedied.C. Exportation of Water Off the ReservationThe district court held that the Tribes can "sell or lease any part of thewater" within the Reservation but not off the Reservation. The SupremeCourt did not address the issue, because:"The Tribes did not seek permission to export (the water and)the U.S. conceded that there is no federal law which permitsthe sale of reserved water to non-Indians off the reservation."(p. 29)But, I do not know of any law which prohibits the off-Reservation sale ofreserved water either. And, it was interesting that one of the court's twodissenters asserted that the Tribes should be able to sell their water offthe Reservation. After all, why should the Indians be allowed to usewater to grow crops which are sold off the reservation and not sell thewater itself off the reservation?D. Use of Water for My PurposeThe court did not specifically address the issue of whether the Tribeswould be restricted to using the water for only those purposes for which aright was awarded or whether they could use the water awarded for anypurposes. However, the court did allow the tribes to use their water forlivestock, domestic, municipal and commercial purposes. And, it did letstand the district court's opinion that the Tribes can sell their water foruse on the reservation. Therefore, I infer that the Tribes can use theirwater for any purpose.8E. Sensitivity DoctrineThe "sensitivity doctrine" comes from a dissenting opinion of JusticePowell, of the U.S. Supreme Court, in which he said,". • . the implied reservation doctrine should be applied withsensitivity to its impact upon those who have obtained waterrights under state law and to Congress' general policy ofdeference to state water law." (p. 47)The court recognized that doctrine. However, the decision was clear instating that the Tribes did not have to provide upstream storage toreplace any water lost to downstream, and presumably junior, users due tothe Tribes' diversion of their water. It said,"Deletion of the upstream storage requirement which wasintended to protect appropriators from sudden depletion by thediversion of water for the five future projects does not manifestinsensitivity to other water users. The doctrine of reservedwater rights entitles the Indians to a certain quantity of water.The requirement that they must first construct storage facilitiesto supply their entitlement flies in the face of the object of thereserved water right -- a prior entitlement to the waters."(p. 48)The court concluded by saying,"The sensitivity doctrine does not preclude the award of a fairwater right." (p. 48)Therefore, the analysis which quantifies Indian water rights does not haveto consider impacts on other users. This issue is settled entirely by theway appropriative water rights law works. If appropriators outside thereservation have a senior right, they are entitled to water before thereservation. Those senior appropriators cannot lose any water as a resultof the reservation's withdrawal, and therefore, they cannot be damaged bythe reservation's withdrawal. If appropriators outside the reservation havea right that is junior to the reservation, the reservation is served first.Therefore, the junior appropriators have no claim to damages which mayresult from less water remaining after the reservation's withdrawal.9N•-_-

The Wind River Litigation: Effects of the Wyoming Supreme Court’s Decision on the Wind River Reservation’s Water Use and Implications for Other Reservations’ Water Rights

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The Wind River Litigation: Effects of the Wyoming Supreme Court’s Decision on the Wind River Reservation’s Water Use and Implications for Other Reservations’ Water Rights

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