Colville Confederated Tribes v. Walton

• Citation: 752 F.2d 397
• Decision Date: 22 April 1985
• Docket Number: No. 83-4285,83-4285
• Parties: COLVILLE CONFEDERATED TRIBES, Plaintiffs/Appellants, v. Boyd WALTON, Jr., et ux, et al., Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 397

752 F.2d 397

COLVILLE CONFEDERATED TRIBES, Plaintiffs/Appellants, v. Boyd WALTON, Jr., et ux, et al., Defendants/Appellees.

No. 83-4285.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1984.

Decided Jan. 21, 1985.

Rehearing and Rehearing En Banc Denied April 22, 1985.

William H. Veeder, Washington, D.C., for plaintiffs/appellants.

Richard B. Price, Omak, Wash., for defendants/appellees.

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

Before WRIGHT, SNEED, and ALARCON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This dispute involves respective rights of the Colville Confederated Tribes (Tribe), Indian allottees and Walton to share in water from the No Name Creek Hydrological System, which was originally reserved for the Tribe under the Winters doctrine, when the Colville Reservation was created. See Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908).

Walton and the Indian allottees seek water for irrigation. The Tribe seeks additional water to establish the Omak Lake Fishery as spawning grounds for the Lahonton Cutthroat Trout as a replacement for fishing grounds lost to development on the Columbia River. The Tribe currently pumps water from the aquifer into No Name Creek during spawning season.

The factual and legal background to this 14-year-old dispute is thoroughly reviewed in Colville Confederated Tribes v. Walton, 460 F.Supp. 1320 (E.D.Wash.1978) (Walton I ) and Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 657, 70 L.Ed.2d 630 (1981) (Walton II ). We note only the most salient facts.

FACTS:

All the former reservation land involved in this case passed into private ownership pursuant to the General Allotment Act of 1887. 24 Stat. 388. A row of seven allotments in the No Name Creek watershed was created in 1917. Walton II, 647 F.2d at 45. The United States holds allotments 892 to the north of Walton's property, and 901 and 903 to the south, in trust for the heirs of the original Indian allottees. The Tribe farms and irrigates these allotments under long-term leases. Allotment 526, which is also held in trust by the United States, is beneficially owned by the Tribe, but was properly excluded from the district court's allocation pursuant to the remand. ¹

Walton owns allotments 525, 2371 and 894, which he purchased in 1948. These allotments originally passed out of the ownership of Indian allottees between 1921 and 1925.

No Name Creek is a spring-fed creek which originates on allotment 892 and flows through Walton's allotments and the Indians' southern allotments into Omak Lake, a saline lake with no outlet. The creek and an underground aquifer underlying the Indians' northern allotments and the northern tip of Walton's allotment, number 525, constitute the No Name Creek Hydrological System.

In Walton II, we held that the United States reserved sufficient water, when the Colville Reservation was created, to allow the irrigation of all practicably irrigable acreage on the reservation. 647 F.2d at 48. We held also that a ratable share of this water reserved for irrigation passed to Indian allottees. This ratable share could in turn be conveyed to a non-Indian purchaser. However, the non-Indian purchaser's share is subject to loss if not put to use. Id.

In addition to water for irrigation, we held that sufficient water was reserved to allow the establishment of the Omak Lake Fishery and permit natural spawning of the Lahonton Cutthroat Trout. Id. at 48. This quantity of water, unrelated to irrigation, was not affected by the allotment of reservation lands and passage of title out of the Indians' hands.

We remanded the case to the district court to calculate the respective rights of the Tribe, Walton, and the individual allottees. The district court, in an unreported opinion, awarded 384 acre feet per year ² to Walton, 428.8 acre feet per year to the Indian allottees for irrigation, and 187.2 acre feet per year to the Tribe for the trout spawning program. The Tribe appealed.

ANALYSIS:

I. Jurisdiction

We have jurisdiction over this appeal under 28 U.S.C. Sec. 1291. The district court's judgment and memorandum opinion were entered on August 31, 1983. On Monday, September 12, 1983, the Tribe served a copy of its motion for a new trial, Fed.R.Civ.P. 59(b), on Walton. The motion was filed the following day. An order was entered denying the motion on October 18, and the Tribe filed a notice of appeal on November 17, 1983.

The motion was served within the 10 day period required by Rule 59(b) and filed the following day and it was timely. See Clipper Exxpress v. Rocky Mountain Motor Tariff, 690 F.2d 1240 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983). The time for filing a Notice of Appeal was tolled, Fed.R.App.P. 4(a)(4), and the Notice of Appeal was timely filed.

II. Law Applied

Reserved rights are "federal water rights" and "are not dependent upon state law or state procedures." Cappaert v. United States, 426 U.S. 128, 145, 96 S.Ct. 2062, 2073, 48 L.Ed.2d 523 (1976); see also United States v. Adair, 723 F.2d 1394, 1411 n. 19 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). It is appropriate to look to state law for guidance, see Colorado v. New Mexico, 459 U.S. 176, 184, 103 S.Ct. 539, 545, 74 L.Ed.2d 348 (1982) (prior appropriation "guiding principle" for equitable apportionment between two prior appropriation states), although the "volume and scope of particular reserved rights ... [remain] federal questions." Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976) (quoting United States v. District Court for Eagle County, 401 U.S. 520, 526, 91 S.Ct. 998, 1003, 28 L.Ed.2d 278 (1971)). This dispute involves relative shares of Colville's reserved waters, and is governed by federal law. We look to state law only for guidance.

III. Walton's Allocation

The extent to which Walton succeeded to a share of the water reserved for irrigation when the Colville Reservation was created is determined by reference to the criteria set forth in Walton II, 647 F.2d at 51. On remand the district court "[was] without power to do anything ... contrary to either the letter or spirit of the mandate construed in the light of the opinion of this court deciding the case." Firth v. United States, 554 F.2d 990, 994 n. 3 (9th Cir.1977), quoting Thornton v. Carter, 109 F.2d 316, 319-20 (8th Cir.1940) (emphasis added); see also In re Beverly Hills Bancorp, 752 F.2d 1334 at 1337-38 (9th Cir.1984). This is true even if the mandate was in error. Firth, 554 F.2d at 994.

A. Irrigable Acreage

An Indian allottee's share of water reserved for purposes of irrigation is limited by the relationship between the number of irrigable acres owned and the number of irrigable acres contained within the reservation. For example, an allottee who owns ten percent of the total number of irrigable acres within a reservation, is entitled to ten percent of the water reserved for irrigation purposes when the reservation was created. This in turn creates an upper limit on the share that may be conveyed to a non-Indian purchaser. Walton II, 647 F.2d at 51.

The district court found that Walton owned 170 irrigable acres. This is a finding of fact which we uphold unless clearly erroneous. United States v. Timberland Paving & Construction Co., 745 F.2d 595, 598 (9th Cir.1984). A finding of fact is clearly erroneous if a reviewing court is "left with the definite and firm conviction that a mistake has been committed." Id. (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

The Tribe argues that almost all of Walton's land is waterlogged and not irrigable. ³ We need not determine whether Walton owns 170 acres of irrigable land. As we discuss more fully below, we conclude that Walton's predecessors exercised reasonable diligence in irrigating only 30 acres. If Walton owns at least 30 irrigable acres, irrigable acreage is no longer a limiting factor.

Walton's property beyond question contains at least 30 irrigable acres. Wilson W. Walton (Walton, Sr.) and W.B. Walton (Walton, Jr.) both testified they successfully farmed and irrigated 104-155 acres. Reporter's Transcript, Aug. 9, 1982 (testimony of Walton, Sr.) and May 5, 1982 (testimony of Walton, Jr.). The Waltons' testimony was supported by that of Al Blomdahl, former Chief Soil Conservation Officer for the Okanogan Office of the United States Department of Agriculture Soil Conservation Service, who testified that Wilson Walton was named Regional Conservation Farmer of the Year in the early 1960's. Reporter's Transcript, May 5, 1982, p. 217.

B. Reasonable Diligence

In Walton II, 647 F.2d at 51, we said:

On remand [the district court] will need to determine the number of irrigable acres Walton owns and the amount of water he appropriated with reasonable diligence in order to determine the extent of his right to share in reserved water.

The district court interpreted this to mean that Walton's diligence in applying water beneficially was the determinative factor in calculating his share of the reserved waters. The district court found that "Walton exercised reasonable diligence in irrigating a minimum of 104 acres," and calculated his allocation accordingly. Memo.Dec. at 5. The court then made alternative findings as to the diligence of the preceding owners of the property dating back to the immediate grantees of the original Indian allottees.

1. Scope of the Mandate

In Walton II, we established the criteria governing the transfer of reserved water rights from an Indian allottee to a non-Indian purchaser. Our mandate must be "construed in light of [our] opinion." Firth, 554 F.2d at 994 n. 3. In Walton II we said:

The non-Indian...