General Adjudication of All Rights to Use Water in Big Horn River System, In re

• Decision Date: 30 November 1990
• Docket Number: Nos. 89-219,89-220,s. 89-219
• Citation: 803 P.2d 61
• Parties: In re: The GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN the BIG HORN RIVER SYSTEM and All Other Sources, State of Wyoming (Two Cases). Dorothy ALEXANDER and Ronald Alexander; James R. Allen and Mary S. Allen; William J. Barmore; Diamond Z Land and Cattle Co.; Gordon Bradford Eastman and Mary Ann Eastman; James Fike, Sr. and James Fike, Jr.; Francis G. Fox and Loretta B. Fox; Griffin Brothers, Incorporated; Kenneth J. Hansen and Gladys E. Hansen; M.J. Heathman and Leah Heathman; George H. Hunker III and Paula L. Hunker; Johnson Cattle Co., Inc.; Lyle L. Klingaman and Connie Klingaman; Robert L. Mitchell and Jane G. Mitchell; Phyllis Shattuck and Kenneth Moore; David Neary and Carolyn Neary; Nirider Land and Cattle Co.; Larry Paxton; Gordon S. Pennoyer; Bob Peralta; W.L. Presgrove and Minnie Presgrove; Charles Roemer and Carol Roemer; Tim Schell; J. Thomas Scrivener and Mary S. Scrivener; Leland L. Shafer; Ralph A. Urbigkit and Eileen Urbigkit; Donald R. Van Riper; Weber Farms, Inc.; Robert A. Williams; Rudy Zupence and Nancy Zupence, Appellants, v. UNITED STATES of America, Shoshone Tribe and Northern Arapaho Tribe of the Wind River Reservation, et al., Appellees. The STATE of Wyoming, Appellant, v. UNITED STATES of America, Shoshone Tribe and Northern Arapaho Tribe of the Wind River Reservation, et al., Appellees.
• Court: Wyoming Supreme Court

Page 61

803 P.2d 61

In re: The GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN the BIG HORN RIVER SYSTEM and All Other Sources, State of Wyoming (Two Cases).

Dorothy ALEXANDER and Ronald Alexander; James R. Allen and Mary S. Allen; William J. Barmore; Diamond Z Land and Cattle Co.; Gordon Bradford Eastman and Mary Ann Eastman; James Fike, Sr. and James Fike, Jr.; Francis G. Fox and Loretta B. Fox; Griffin Brothers, Incorporated; Kenneth J. Hansen and Gladys E. Hansen; M.J. Heathman and Leah Heathman; George H. Hunker III and Paula L. Hunker; Johnson Cattle Co., Inc.; Lyle L. Klingaman and Connie Klingaman; Robert L. Mitchell and Jane G. Mitchell; Phyllis Shattuck and Kenneth Moore; David Neary and Carolyn Neary; Nirider Land and Cattle Co.; Larry Paxton; Gordon S. Pennoyer; Bob Peralta; W.L. Presgrove and Minnie Presgrove; Charles Roemer and Carol Roemer; Tim Schell; J. Thomas Scrivener and Mary S. Scrivener; Leland L. Shafer; Ralph A. Urbigkit and Eileen Urbigkit; Donald R. Van Riper; Weber Farms, Inc.; Robert A. Williams; Rudy Zupence and Nancy Zupence, Appellants, v. UNITED STATES of America, Shoshone Tribe and Northern Arapaho Tribe of the Wind River Reservation, et al., Appellees.

The STATE of Wyoming, Appellant, v. UNITED STATES of America, Shoshone Tribe and Northern Arapaho Tribe of the Wind River Reservation, et al., Appellees.

Nos. 89-219, 89-220.

Supreme Court of Wyoming.

Nov. 30, 1990.

Sky D. Phifer, Lander, for appellants, Dorothy Alexander, et al.

Joseph B. Meyer, Atty. Gen., S. Jane Caton, Asst. Atty. Gen., for appellant, State of Wyo.

Richard B. Stewart, Asst. Atty. Gen., and James J. Clear, Atty., Dept. of Justice, Washington, D.C. for appellee, U.S.

Susan M. Williams, W. Richard West, Jr., and Jane Marx, Gover, Stetson, Williams & West, P.C., Albuquerque, N.M., for appellee, Shoshone Tribe.

Andrew Baldwin, Ethete, for appellee, Northern Arapaho Tribe.

Before CARDINE, ^* C.J., THOMAS, MACY and GOLDEN, JJ., and BROWN, J., Retired.

THOMAS, Justice.

The resolution of this case demands that the court address two legal problems. The first is whether we can reach the merits of the case since it apparently involves an attempt to appeal from an order that is not final. We resolve that question by treating the attempted appeal as a petition for a writ of certiorari that has been granted for the purpose of accomplishing an appropriate interlocutory review. The second question presents the case on its merits and requires us to determine whether the doctrine of res judicata forecloses similarly situated parties who did not participate in an earlier appeal taken from an order entered pursuant to Rule 54(b), W.R.C.P. ¹ from the beneficial ruling by this court in favor of those parties who did appeal. We conclude that an appeal pursuant to Rule 54(b), W.R.C.P., is an interlocutory appeal authorized by our procedural rules and, if the final judgment that is appealed is reversed, the ruling in favor of the appellant becomes the law of the case as it continues in the trial court. As the law of the case, it applies to all parties who remain in the case and, even if those parties did not participate in the appeal, they are not foreclosed from the benefit of the ruling by the doctrine of res judicata. The trial court ruled to the contrary, invoking the doctrine of res judicata in favor of the appellees-respondents in this proceeding. We reverse the ruling of the district court and remand the case for appropriate further proceedings in accordance with this opinion.

The appellants, whom we treat and shall refer to as successful petitioners for a writ of certiorari, state these issues in their brief:

"1. Did the District Court err in finding that Eastmans, Klingamans and Fike were Indians and that they had an adequate remedy pursuant to Tribal law?

"2. Did the District Court err in finding that the Supreme Court did not have jurisdiction over non-appealing parties so as to preclude them from the benefit of the Wyoming Supreme Court's ruling in this matter in 1988, In re Rights to Use Water in Big Horn River, 753 P.2d 76 (Wyo.1988)?

"3. Did the District Court err in finding that Petitioners' claims were barred by the doctrine of res judicata?"

The State of Wyoming, which has aligned itself with these petitioners, states these issues:

"I. Whether the District Court erred in holding that Petitioners are not entitled to a hearing on their claims?

"II. Whether the District Court erred in denying further relief pursuant to § 1-37-110, W.S.1977?"

The Shoshone and Northern Arapaho Tribes, appellees, which we shall treat as respondents to the petition for writ of certiorari, say that the issues really are:

"I. Whether the District Court correctly determined that appellants received proper notice of the pendency of litigation concerning claims to 1868 treaty-based water rights and were therefore made parties to the litigation?

"II. Whether the District Court properly determined that appellants' failure to appeal and the doctrine of res judicata bar their untimely assertion of rights to water with an 1868 priority date?

"III. Whether the doctrine of laches bars appellants' belated attempts to litigate their claims to 1868 treaty-based water rights?

"IV. Whether the District Court correctly determined that the principle of finality in water rights adjudication bars appellants' attempts to relitigate claims to 1868 treaty-based water rights?"

The United States of America, also a respondent as these proceedings have been recast, submits the following issues:

"1. Whether the District Court's order of August 18, 1989, is an appealable order.

"2. Whether the State of Wyoming is a proper appellant.

"3. Whether the District Court had discretion to set aside a final judgment entered in this cause in 1985 against the appellants in 89-219.

"4. Whether, if the District Court had such discretion, it abused its discretion by refusing to set aside the judgment."

These proceedings are a part of an action instituted to accomplish a system-wide adjudication of water rights in Water Division No. 3, State of Wyoming, the Big Horn River Drainage Basin. A detailed recitation of the facts surrounding this litigation is found in In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo.1988), judgment aff'd sub nom. Wyoming v United States, 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342 (1989), reh. denied 492 U.S. 938, 110 S.Ct. 28, 106 L.Ed.2d 639 (1989), cert. denied sub nom. City of Riverton Wyoming v. United States, 492 U.S. 926, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989); cert. denied Shoshone Tribe and Northern Arapaho Tribe of Wind River Indian Reservation v. Wyoming, 492 U.S. 926, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989). In developing the resolution of this case, it is appropriate to touch upon some of the pertinent and peculiarly significant facts.

The action was commenced by the State of Wyoming, pursuant to § 1-1054.1, W.S.1957 (now found as § 1-37-106, W.S.1977), and the McCarran Amendment, 43 U.S.C. § 666 (1980), on January 24, 1977. The purpose of the action was to obtain a general adjudication of water rights in the Big Horn River system and all other sources of water within Water Division No. 3, State of Wyoming. It was intended that all claimants to the use of such water, whether potential or then existing, would be joined as parties defendant. The United States of America, the Shoshone and Arapaho Tribes, and the State of Wyoming were named specifically. In accordance with § 1-37-106, W.S.1977, service of process was made upon a list of unnamed defendants, known and unknown. Service was made upon several thousand known water rights holders by certified mail, return receipt requested. Unknown defendants were served by publication. The summons contained a statement to the effect that a default judgment would be entered against the claimant if the claimant did not file an answer within twenty days if a resident of Wyoming, or within thirty days if a non-resident. Numerous defendants answered, many of them appearing pro se.

After service of process had been accomplished and various preliminary matters had been completed, the case was assigned to a Special Master who, to facilitate the proceedings and avoid perceived unnecessary complexities, divided the proceedings into three phases. The focus of the first phase was on the claims of the United States of America and the Shoshone and Arapaho Tribes regarding reserved water rights on the Wind River Indian Reservation and any other water rights established by federal law. The second phase was to focus upon the consideration of claims asserted by non-Indian successors in interest to lands within the Wind River Indian Reservation that once had been owned by Indian allottees and subsequently conveyed. The third phase was reserved for litigation of all claims founded on state court decrees, state certificates of appropriation, state permits that had not been cancelled, or any additional state claims otherwise represented. Phase three was not to commence until phases one and two had been completed.

After reviewing the Special Master's reports and supplemental findings, the district court entered its initial decision on May 10, 1983. That decision was reconsidered and an Amended Judgment and Decree entered on May 15, 1985. In the Amended Judgment and Decree, a claim of an 1868 priority date for water rights was denied to non-Indian claimants. Pursuant to Rule 54(b), W.R.C.P., this ruling denying the 1868 priority date to non-Indian claimants was successfully appealed to this court, although not all parties who had been adversely affected by the district court judgment participated in the appeal.

On February 24, 1988, this court filed its opinion in which the ruling with respect to the claimed 1868 priority date was reversed. Big Horn, 753 P.2d 76. We there held that Indian or tribal purchasers of re-acquired lands are entitled...