Lamp, John E.

Sweeny, Robert M.

English

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Response by United Sates to statements of issues

University of Idaho College of Law

UIdaho LawDigital Commons @ UIdaho LawConfederate Colville Tribes v. Walton (ColvilleTribes) Hedden-Nicely3-8-1982Response by United Sates to statements of issuesRobert M. SweenyAssistant United States AttorneyJohn E. LampUnited States AttorneyFollow this and additional works at: https://digitalcommons.law.uidaho.edu/waltonThis Brief is brought to you for free and open access by the Hedden-Nicely at Digital Commons @ UIdaho Law. It has been accepted for inclusion inConfederate Colville Tribes v. Walton (Colville Tribes) by an authorized administrator of Digital Commons @ UIdaho Law. For more information,please contact annablaine@uidaho.edu.Recommended CitationSweeny, Robert M. and Lamp, John E., "Response by United Sates to statements of issues" (1982). Confederate Colville Tribes v. Walton(Colville Tribes). 53.https://digitalcommons.law.uidaho.edu/walton/531 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 FORM 080-93 SEP 77 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON COLVILLE CONFEDERATED TRIBES, ) ) Plaintiff, ) ) vs. ) ) BOYD WALTON, JR., et al., ) ) Defendants. ) ________________________________ ) ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) WILLIAM BOYD WALTON, et al., ) and THE STATE OF WASHINGTON, ) ) Defendants. ) ______________________________ ) I. PREAMBLE No. 3421 V RESPONSE BY UNITED STATES TO STATEMENTS OF ISSUES No. 3831 FILED IN THE .U. S. DISTRICT COURT Eastern D:s 1 ict ot Washington n ·- n l~lt-1.1( 0 1982 J. R. FV ST, Clerk , _ , _ ........ Deputy Pursuant to the directive of the Court, the parties to these consolidated proceedings have submitted lists of issues to be determined on remand of the proceeding from the Ninth ·circuit , together with statements as to the propriety of reopening the record to receive additional evidence upon a particular issue. Each of the parties was given the opportunity to file responses to the other parties' statements of issues. The following constitutes the response of the United States to the various statement of issue. II. ISSUES TO BE DETERMINED The United States submits the following is sues should be determined : 1. Does the State of Washington have a continued role in 1 these proceedings? 2 The State of Washington asserts it has standing to remain 3 in these proceedings to (1) argue the validity of state permits 4 for the use of water within the Colville Reservation from water 5 systems other than No Name Creek, and (2) because of the state 6 adjudication of the waters of Omak Creek pending in this Court 7 in In re Omak Creek. 8 With reference to the State's first assertion to justify 9 its continued participation in the case, the Ninth Circuit held 10 that the State of Washington has no jurisdiction to regulate the 11 use of water in the No Name Creek water shed and that 12 Mr. Walton's state permit is null and void. The Supreme Court 13 refused to review this issue and the State has no further 14 legitimate interest in this case. 15 With reference to the State's second assertion, the In re 16 Omak Creek state water adjudication, this creek rises and flows 17 through lands within the Colville Reservation and empties into 18 the Okanogan River, the Reservation boundary and it would appear 19 that eh Colville Tribe's right to the use of Omak Creek water 20 would not properly be the subject of a state water adjudication 21 proceeding. See also the recent 9th Circuit decision in Northern 22 Cheyenne Tribe vs. Adsit, F.2d (9th Cir. Feb. 22, 23 1982), holding that where a state has disclaimed jurisdiction 24 over Indian lands [and waters] upon its entry into the union, 25 it cannot assert jurisdiction over the regulation of Indian waters 26 until soverign immunity has been waived and the disclaimers 27 repealed. 28 2. What is the amount of water reserved to the Tribe to 29 protect and maintain replacement fishing grounds? 30 The Ninth Circuit held that the Tribe's have a reserved 31 right for a fishery to maintain the replacement fishery grounds. 32 At trial Dr. Koch was presented as a witness by the Tribe and he FOAM OB0-93 SEP 71 RESPONSE BY UNITED STATES -2-DOJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 FORM 080-93 SEP 77 . -testified to an amount of flow necessary at various times during the year to protect the fishery. The amount of water in acre feet can easily be calculated from Dr. Koch's testimony and the record need only be opened on this issue to calculate the total amount of water required annually for this purpose (285 acre feet). Further, the reserved fishery right is in addition to and not included within the Tribe's reserved agricultural right. In this regard, the United States disagrees with Walton's assertion that the fishery right is included in the irrigation right. The United States also disagrees with the State's assertion that water for fishery must first be used for agricul-tural purposes. 3. Should the Court confirm that the Tribe has a reserved right in the waters of the No Name Creek basin to irrigate Allotment 526? The trial court declined to award the Tribe a reserved right from the No Name Creek basin to irrigate allotment 526 and this holding was affirmed by the circuit court. In view of the time required to determine a right to the use of Omak Creek waters, the United States requests that the water necessary to irrigate 526 from No Name Creek be confirmed. 4. Do the defendants Walton have a reserved right to water from the No Name Creek basin? The record in this case shows that the Lands now owned by the Waltons passed out of Indian ownership in the 1920's and that the use of water on this property did not occur until the 1940's. The application of water to the land by Walton after he purchased the property in 1948 cannot be construed Ill Ill Ill Ill RESPONSE BY UNITED STATES -3-DOJ 1 as diligent application of water to allow a sharing of the 2 reserved water right. In this regard, a definition of the 3 "diligent application" would be appreciated. 4 Respectfully submitted, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 FORM 080·93 SEP 71 Post Office Box 1494 Spokane, WA 99210-1494 Telephone: (509) 456-3811 RESPONSE . BY UNITED STATES -4-DOJ 

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Response by United Sates to statements of issues

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