Colville Confederated Tribes v. Walton, s. 79-4297

• Decision Date: 01 June 1981
• Docket Number: Nos. 79-4297,79-4309 and 79-4383,s. 79-4297
• Citation: 647 F.2d 42
• Parties: COLVILLE CONFEDERATED TRIBES, Plaintiff-Appellant, v. Boyd WALTON, Jr., et ux, et al., Defendants-Appellees, and State of Washington, Intervening Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. William Boyd WALTON et ux, Defendants-Appellants, and State of Washington, Defendant. UNITED STATES Of America, Plaintiff-Appellee, v. William Boyd WALTON, Jr., et ux, Defendants, and State of Washington, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 42

647 F.2d 42

COLVILLE CONFEDERATED TRIBES, Plaintiff-Appellant, v. Boyd WALTON, Jr., et ux, et al., Defendants-Appellees, and State of Washington, Intervening Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. William Boyd WALTON et ux, Defendants-Appellants, and State of Washington, Defendant.

UNITED STATES Of America, Plaintiff-Appellee, v. William Boyd WALTON, Jr., et ux, Defendants, and State of Washington, Defendant-Appellant.

Nos. 79-4297, 79-4309 and 79-4383.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1980.

Decided June 1, 1981.

Richard B. Price, Nansen, Price & Howe, Omak, Wash., for Walton.

Charles B. Roe, Jr., Olympia, Wash., for State of Wash.

Sanford Sagalkin, Washington, D.C., argued; Robert M. Sweeney, Asst. U.S. Atty., Spokane, Wash., for U.S.A.

William H. Veeder, Washington, D.C., for Colville et al.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT and SKOPIL, Circuit Judges, and CURTIS, ^* Senior District Judge.

WRIGHT, Circuit Judge:

Rehearing has been granted. The opinion filed on August 20, 1980 is withdrawn and is replaced by this opinion.

The Colville Confederated Tribes initiated this case a decade ago. They sought to enjoin Walton, non-Indian owner of allotted lands, from using surface and ground waters in the No Name Creek basin. The State of Washington intervened, asserting its authority to grant water permits on reservation lands, and the case was consolidated with a separate suit brought by the United States against Walton.

I. BACKGROUND

A.

In 1871 the predecessors of the Colville Confederated Tribes had no treaty with the United States and no reservation. ¹ These Indians were contemporaneously described as "good farmers, (who) raise extensive crops, make good improvements, and own stocks of cattle and horses." (1871) Report of the Commissioner of Indian Affairs, 277.

After the Civil War, settlers had begun to encroach on Indian lands. The Farmer in charge at Fort Colville reported that violence was likely unless a reservation was established to protect Indian interests. Id. In response to a request from the Commissioner of Indian Affairs, President Grant created the Colville Reservation. Executive Order of July 2, 1872, reprinted in 1 Kapler, Indian Affairs, Laws and Treaties, 915-16. (2d ed. 1904). ² Twenty years later, the northern half of the reservation was taken from the Indians and opened for entry and settlement. ³

In 1906, Congress ratified an agreement with the Colvilles that provided for distribution of reservation lands to the Indians pursuant to the General Allotment Act of 1887, 24 Stat. 388, and for disposition of the remainder by entry and settlement. Act of Mar. 22, 1906, Pub.L. No. 59-61, ch. 1126, 34 Stat. 80. The agreement was effectuated by Presidential proclamation in 1916. ⁴ 39 Stat. 1778.

In 1917, a row of seven allotments was created in the No Name Creek watershed. Walton, a non-Indian, now owns the middle three, numbers 525, 2371 and 894. He bought them in 1948 from an Indian, not a member of the Tribe, who had begun to irrigate the land by diverting water for 32 acres from No Name Creek. Walton immediately procured a permit from the state to irrigate 65 acres by diverting up to 1 cubic foot per second "subject to existing rights." He now irrigates 104 acres and uses additional water for domestic and stock water purposes.

The United States holds the remaining allotments in trust for the Colville Indians. Allotments 526 and 892 are north of Walton's property and allotments 901 and 903 are south. Allotments 892, 901 and 903 are held for heirs of the original allottees, but the Tribe has a long-term lease. Allotment 526 is beneficially owned by the Tribe. ⁵

B.

The No Name Creek is a spring-fed creek flowing south into Omak Lake, which has no outlet and is saline. The No Name hydrological system, consisting of an underground aquifer and the creek, is located entirely on the Colville Reservation.

The aquifer lies under the Indians' northern allotments and the northern tip of Walton's allotment, number 525. No Name Creek originates on the southern tip of the Indians' allotment number 802 and flows through Walton's allotments and the Indians' southern allotments.

C.

Salmon and trout were traditional foods for the Colville Indians, but the salmon runs have been destroyed by dams on the Columbia River. In 1968, the Tribe, with the help of the Department of the Interior, introduced Lahonton cutthroat trout into Omak Lake. The species thrives in the lake's saline water, but needs fresh water to spawn. The Indians cultivated No Name Creek's lower reach to establish spawning grounds but irrigation use depleted the water flow during spawning season. The federal government has given the Indians fingerlings to maintain the stock of trout.

II. THE CASE BELOW

The trial court found that 1,000 acre feet per year of water were available in No Name Creek Basin in an average year. It calculated the quantity of the Colvilles' reserved water rights on the basis of irrigable acreage. The court excluded the northern-most allotment, number 526, because the evidence showed that it was formerly irrigated with the surface waters of Omak Creek, and the Tribe had not demonstrated that water to irrigate it was required from the No Name system.

The trial court determined the Indians had a reserved right to 666.4 acre feet per year of water from the No Name Creek Basin. It held that Walton was not entitled to share in the Colvilles' reserved water rights. The trial court found, however, that the Colvilles were irrigating only a portion of the irrigable acres included in its calculation.

Under the district court's findings, in an average year there are 333.6 acre feet per year of water not subject to the Indians' reserved right. There are an additional 237.6 acre feet per year of water to which the Indians have a reserved right, but which they are not currently using. This water is available for appropriation by non-Indians, subject to the Indians' superior right. The court held that Walton had a right to irrigate the 32 acres under irrigation at the time he acquired his land, with a priority date of the actual appropriation of water for that use.

The court also held that the Indians were potentially entitled to use water to propagate trout, but refused to award water for that purpose. It concluded that spawning was unnecessary because fingerlings were provided free by the federal government.

By post-trial motion, the Indians sought permission to use some of their irrigation water for trout spawning. The motion was granted and the Tribe has since pumped aquifer water from their wells into No Name Creek during spawning season.

Finally, the court decided that the state could regulate No Name water not reserved for Indian use.

Walton, the Tribe and the State appeal parts of the decision. Colville Confederated Tribes v. Walton, 460 F.Supp. 1320 (E.D.Wash.1978). ⁶

III. THE TRIBE'S WATER RIGHTS

The Colvilles argue they have a right to use the waters of the No Name system under the implied-reservation, or Winters doctrine. We first consider the existence and the extent of that right.

A.

Congress has the power to reserve unappropriated water for use on appurtenant lands withdrawn from the public domain for specific federal purposes. United States v. New Mexico, 438 U.S. 696, 698, 98 S.Ct. 3012, 3013, 57 L.Ed.2d 1052 (1978). Where water is needed to accomplish those purposes, a reservation of appurtenant water is implied. Id. at 700, 98 S.Ct. at 3014; Cappaert v. United States, 426 U.S. 128, 139, 96 S.Ct. 2062, 2069, 48 L.Ed.2d 523 (1976). The United States acquires a water right vesting on the date the reservation was created, and superior to the rights of subsequent appropriators. Cappaert, 436 U.S. at 138, 96 S.Ct. at 2069.

An implied reservation of water for an Indian reservation will be found where it is necessary to fulfill the purposes of the reservation. In United States v. Winters, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908), the Court found an implied reservation because the land of the Fort Belknap reservation would have been valueless without water. Similarly, an implied reservation was found where water was "essential to the life of the Indian people." Arizona v. California, 373 U.S. 546, 599, 83 S.Ct. 1468, 1497, 10 L.Ed.2d 542 (1963).

In those cases, if water had not been reserved, it would have been subject to appropriation by non-Indians under state law. Because the Indians were not in a position, either economically or in terms of their development of farming skills, to compete with non-Indians for water rights, it was reasonable to conclude that Congress intended to reserve water for them. ⁷

The Colvilles were in a similar position when their reservation was created. As in Winters, the Indians relinquished extensive land and water holdings when the reservation was created. Some gave up valuable tracts with extensive improvements. Note 2, supra.

Congress intended to deal fairly with the Indians by reserving waters without which their lands would be useless. Arizona v. California, 373 U.S. at 600, 83 S.Ct. at 1497. We hold that water was reserved when the Colville Reservation was created.

B.

The more difficult question concerns the amount of water reserved. In determining the extent of an implied reservation of water for a national forest, the Supreme Court held:

Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress' express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States...