Confederated Salish & Kootenai Tribes v. Flathead Irr. and Power Project

• Citation: 616 F. Supp. 1292
• Decision Date: 20 August 1985
• Docket Number: No. CV 85-150-M.,CV 85-150-M.
• Parties: CONFEDERATED SALISH AND KOOTENAI TRIBES OF the FLATHEAD RESERVATION, MONTANA, Plaintiff, v. FLATHEAD IRRIGATION AND POWER PROJECT; August C. Mueller, Acting Project Engineer, Flathead Irrigation and Power Project; and United States of America, Defendants, and Joint Board of Control of the Flathead, Mission and Jocko Valley Irrigation Districts, Intervening Defendant.
• Court: U.S. District Court — District of Montana

616 F. Supp. 1292

CONFEDERATED SALISH AND KOOTENAI TRIBES OF the FLATHEAD RESERVATION, MONTANA, Plaintiff, v. FLATHEAD IRRIGATION AND POWER PROJECT; August C. Mueller, Acting Project Engineer, Flathead Irrigation and Power Project; and United States of America, Defendants and Joint Board of Control of the Flathead, Mission and Jocko Valley Irrigation Districts, Intervening Defendant.

No. CV 85-150-M.

United States District Court, D. Montana, Missoula Division.

August 20, 1985.

Stanley T. Kaleczyc, R. Stephen Browning, and J. Daniel Hoven, Browning & Kaleczyc, P.C., F. Woodside Wright, Helena, Mont., for defendants.

Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Helena, Mont., Deirdre Boggs, Hamilton, Mont., for Intervenor Joint Board of Control.

James H. Goetz, and Brigitte M. Anderson, Goetz, Madden & Dunn, P.C., Bozeman, Mont., Daniel F. Decker, John B. Carter, and Patrick L. Smith, Confederated Salish & Kootenai Tribes, for Intervnor State of Mont.

Robert Brooks, Asst. U.S. Atty., Vernon Peterson, Regional Sol., Portland, Or., and Ann Crichton, U.S. Dept. of Interior, Washington, D.C., for plaintiff.

MEMORANDUM OPINION AND ORDER

LOVELL, District Judge.

This is an action for injunctive relief by Plaintiff, (hereinafter also "Tribes"), to enjoin Defendants (hereinafter also the "Project") from endangering the Tribes' fishing and appurtenant water rights allegedly guaranteed by the Hell Gate treaty of July 16, 1855.¹

The parties are: Plaintiff, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, a duly recognized governing body organized pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 476 et seq.; Defendant Flathead Irrigation and Power Project, an Indian irrigation project operated by the Bureau of Indian Affairs, United States Department of Interior; Defendant August C. Mueller, Acting Project Engineer for the Flathead Irrigation and Power Project; Defendant United States of America; and Intervening Defendant The Joint Board of Control for the Flathead, Mission and Jocko Valley Irrigation Districts (hereinafter also "JBC"), which represents approximately 2,600 farmer-irrigators, both Indian and non-Indian, who receive water from the Project. The State of Montana also seeks to be made a party-defendant herein; that motion will be addressed later in the opinion.

This opinion is written because of the vigorous denial of this Court's jurisdiction, initially by the United States and the JBC, and later by the State of Montana.

FACTUAL AND PROCEDURAL BACKGROUND

The Flathead Reservation was established by the Treaty of Hell Gate, signed on July 16, 1855, and approved by Congress in 1859. By the terms of the Treaty, the Tribes relinquished all right, title and interest in and to what is now most of Montana. The Treaty reserved approximately 1.2 million acres of land for "the exclusive use and benefit of said Confederated Tribes as an Indian reservation."² It also secured to the Tribes the exclusive right of taking fish in all streams running through or bordering the Reservation. By the Flathead Act of 1904,³ Congress provided for allotments of reservation land to individual Indians on the Flathead Reservation, and for opening the surplus, unallocated lands to non-Indians. The Reservation was formally opened for non-Indian settlement by Presidential Proclamation on May 22, 1909.⁴

The Project was created by the Act of April 23, 1904,⁵ as amended by the Act of May 29, 1908.⁶ It is administered by the Bureau of Indian Affairs, United States Department of the Interior, and currently supplies water to irrigate some 127,079 acres of land, approximately 16,085 of which are held in trust by the United States for the Tribes and their members. The remaining acreage is held in fee, by both Indians and non-Indians. The Project maintains approximately 1,165 miles of canals and fourteen reservoirs for irrigation, accounting for 55 to 65 per cent of all surface waters occurring within the Reservation.

As a result of diminished precipitation and snowpack levels in 1985, combined with above-average summer temperatures, the Flathead Reservation has experienced unusually dry conditions, threatening to result in a severe drought before the close of the 1985 irrigation season. This action was commenced to prevent the dewatering, for irrigation, of streams and reservoirs which serve as natural habitat for tribal fisheries, consisting largely of native and wild naturally reproducing trout, as well as other species. The Tribes allege violation by the Project of treaty fishing rights and reserved water rights appurtenant thereto as well as breach of fiduciary duty and abuse of discretion in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2) (1977). They further allege that immediate injunctive relief is necessary to prevent irreparable injury to the fisheries.

On August 1, 1985, Plaintiffs moved for a temporary restraining order which the Court heard in open court. Although it considered Plaintiff's motion an ex parte request, as provided by Rule 65(b) Fed.R. Civ.P., the Court made certain that other interested parties were requested to appear and be fully heard on the matter. During the hearing, the United States was joined as a party, and the court entertained a motion to intervene by the JBC, pursuant to Rule 24(a)(2) Fed.R.Civ.P. The JBC appeared on behalf of the 2,600 irrigators within the regulatory area of the Project who stand to incur substantial hardship were the Project enjoined from delivering water for irrigation. JBC adequately demonstrated that the interests of the irrigators would be significantly impaired by curtailing irrigation flows; since such interests were not represented by existing parties to the litigation, the Court ruled that intervention would be granted upon JBC's filing of an answer, and JBC was allowed to present its arguments in opposition to the restraining order.

The evidence submitted to the Court during the hearing demonstrated the immediacy of the water crisis facing the Flathead Reservation. The exclusive fishing rights guaranteed to the Tribes were not the subject of opposition; rather, the dispute concerned the implied reservation of water to support a core population of fish on the Reservation. Additionally, the United States and JBC contested the Court's jurisdiction to consider the matter at all. After a showing by the Tribes of a possibility of irreparable injury to tribal fisheries, and a likelihood of successfully proving that a right to a minimum quantity of water for preservation of the fisheries was impliedly reserved by the Treaty of Hell Gate, the Court entered an order temporarily restraining the Project from allowing diversions in excess of sufficient waters to maintain and preserve the native and wild trout fishery within the Reservation.⁷ A hearing for preliminary injunction was set for August 9, 1985, and was subsequently continued to August 12, 1985.

On August 12, 1985, the Court convened to hear the Tribes' motion for preliminary injunction. At the commencement of the hearing, the State of Montana appeared for the first time and moved to intervene as a party-defendant in the action pursuant to Rule 24(a)(2), Fed.R.Civ.P. The state claims to have a unique interest in the subject matter of the action arising out of its comprehensive water rights adjudication plan, and has predicated its motion for intervention on the inadequate representation of its interest by existing parties. The motion was resisted by the Tribes but unopposed by all other parties. It was at this stage of the proceedings that the Tribes submitted to the Court a stipulation, being a written agreement between the Tribes and the Project, and signed by the United States, by the terms of which all differences between the original parties hereto are resolved and settled, to be effective from the date thereof until October 31, 1985. Thereafter the United States suggested to the Court that the matter had become moot, to which the Tribes agreed and suggested dismissal of the case without prejudice. The terms of the dismissal ultimately received the consent of both the JBC and the State of Montana.

JURISDICTION

Jurisdiction lies with this Court pursuant to 28 U.S.C. § 1362 (1966).⁸ The Tribes commenced this action alleging breach of treaty-guaranteed fishing rights which the United States has a duty to protect. As a general rule, federal courts have jurisdiction to hear and decide claims by an Indian tribe against the United States arising under federal law. Gila River Indian Community v. Henningson, Durham and Richardson, 626 F.2d 708, 711 (9th Cir.1980). The Supreme Court has construed the McCarran Amendment, 43 U.S.C. § 666 (1952), as providing an exception to federal jurisdiction where Indian water rights are at issue. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), reh. den., 426 U.S. 912, 96 S.Ct. 2239, 48 L.Ed.2d 839; Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983). The Colorado River and San Carlos cases dictate deferral of water rights adjudication to state courts in the interests of wise judicial administration. It is clear, however, that the Supreme Court's statement that state courts have jurisdiction over Indian water rights "does not imply that state courts have exclusive jurisdiction over such rights." United States v. Adair, 723 F.2d 1394 (9th Cir.1983) emphasis in original.

The State of Montana's intervention is in essence exclusively for the purpose of asserting the lack of this Court's jurisdiction over the matter. The State, joined by JBC, contends that the Tribes' claims are barred by res judicata and collateral estoppel as a result of the San Carlos decision and the subsequent Ninth Circuit remand order in Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th Cir.1983). It is JBC's and the State's position that any...