Rethinking General Stream Adjudications

1. Rethinking General Stream Adjudications Larry MacDonnell Prospective Panel September 12, 2014

2. Overview • Question: To what extent have general stream adjudications succeeded or failed in accomplishing the goals they have been implemented to achieve?

3. Stated Purposes of the Big Horn Adjudication (1) confirm existing decreed or adjudicated rights; (2) confirm the status of uncancelled permits and adjudicate those that had been perfected; and (3) determine the extent and priority date of any other right to use water and adjudicate such rights.

4. Outcomes – Big Horn • All certificated/decreed water rights incorporated in decree without examination • About 30% of the 4,600 surface water permits were adjudicated; about 8,200 gw permits included in decree (out of 10,600) • Tribal “historic lands” reserved rights of 290,000 acre-feet; “future lands” of 209,000 acre-feet; about 3,000 federal lands claims included in decree

5. Goals Achieved? • From state perspective, probably yes though costly and time consuming • From state-law-based water user perspective, probably mixed; clarity about extent of federal and tribal claims; limited other benefits • From federal lands perspective, probably yes since worked out through settlement • From tribal perspective, probably no because of limitations on future uses

6. General stream adjudications:a 19th century tool • Long ago replaced by expert administrative processes (see Farm Investment Co v. Carpenter (1900)) • Can require anyone, either permitted or not, using water to obtain certification (or equivalent) using existing state process • Make clear there is no vested water right without certification

7. General adjudications and federal/Indian reserved rights • Ok’d by U.S. Sup. Ct. in Colorado River District and San Carlos Apache decisions • Basis: avoid “duplicative litigation, tension and controversy between the federal and state forums, hurried and pressured decision making, and confusion over the disposition of property rights.”

8. Concerns • Justice Stewart in dissent in Colorado River District: -issues of federal law better decided in federal courts; federal circuit court review rather than just by certiorari in U.S. Supreme Court -” federal court is a more appropriate forum than a state court for determination of questions of life-and-death importance to Indians”

9. Concerns • Justice Stevens in dissent in San Carlos: • “Not all of the issues arising from the application of the Winters doctrine have been resolved, because in the past the scope of Indian reserved rights has infrequently been adjudicated. The important task of elaborating and clarifying these federal law issues in the cases now before the Court, and in future cases, should be performed by federal rather than state courts whenever possible.”

10. State Supreme Court rulings re:federal reserved rights • Reserved rights based on Multiple Use-Sustained Yield Act -Colorado: no -Idaho: no 2. Reserved rights for Public Water Reserves -Colorado: yes, for stockwatering and domestic -Idaho: yes, for stockwatering only

11. State Supreme Court rulingsfederal reserved rights 3. Reserved rights for wilderness areas -Idaho: initially yes, then no 4. Reserved right for national recreation area -Idaho: no, based on interpretation of primary purpose and need for water 5. Reserved rights for national wildlife refuge -Idaho: no, based on interpretation of primary purpose and need for water

12. State Supreme Court rulings on Indian reserved water rights • Does U.S. Supreme Court precedent for federal reserved rights apply to Indian reserved rights? -Big Horn – as “guidance,” but effectively adopted the primary/secondary purposes analysis of New Mexico -Montana – no, distinctive kinds of rights (ownership; purposes; quantification) -Arizona (Gila) – the primary/secondary distinction does not apply to Indian rights

13. State Supreme Court rulings on Indian reserved water rights 2. Do Indian reserved water rights extend to groundwater? -Big Horn Adjudication (Wyoming) – no -Gila River Adjudication (Arizona) – yes 3. Purposes of Indian reservations -Big Horn Adjudication – agriculture -Montana Statewide Adjudication – Indian self-sufficiency -Gila River Adjudication – Indian self-sufficiency

14. State Supreme Court rulings on Indian reserved water rights 4. Standard for quantifying Indian reserved water rights -Big Horn Adjudication – practicably irrigable acreage -Gila River – multiple factor analysis (land use plans, tribal history, tribal culture, geography, topography, natural resources, economic base, past water use, population) -Montana – amount necessary for Indian self-sufficiency

15. State Supreme Court rulings on Indian reserved water rights 5. Dispute management -Big Horn – State Engineer and then courts -Washington (Yakima) – courts 6. Issuance of new permits/change of use authorization for on-reservation uses -Montana – initially not allowed, pending quantification of Indian reserved rights -Montana – now allowed

16. Summary • Some form of state process necessary to incorporate valid but uncertificated/unadjudicated uses • Burden should be on water user to obtain certification • GSA’s a problematic forum for determining federal and Indian reserved water rights