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

Decision Date24 February 1988
Docket NumberNos. 85-203,s. 85-203
Citation753 P.2d 76
PartiesIn re The GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE BIG HORN RIVER SYSTEM and all other sources, State of Wyoming. The STATE of Wyoming, Appellant, v. OWL CREEK IRRIGATION DISTRICT MEMBERS; Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees. OWL CREEK IRRIGATION DISTRICT MEMBERS, Appellants, v. The STATE of Wyoming, Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees. SHOSHONE AND ARAPAHOE TRIBES, Appellants, v. The STATE of Wyoming, Owl Creek Irrigation District Members, Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees. Landis WEBBER and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski, Appellants, v. The STATE of Wyoming; Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; United States; City of Riverton, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellees. CITY OF RIVERTON, Midvale Irrigation District, and Riverton Valley Irrigation District, Appellants, v. The STATE of Wyoming; Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Company, Bertha Jones and Grace Graboski; United States, Appellees. UNITED STATES, Appellant, v. The STATE of Wyoming, Owl Creek Irrigation District Members; Shoshone and Arapahoe Tribes; Landis Webber and Barbara Webber, individually and on
CourtWyoming Supreme Court

Joseph B. Meyer, Atty. Gen., S. Jane Caton, Asst. Atty. Gen., Steven F. Freudenthal, Sp. Asst. Atty. Gen., with Freudenthal, Freudenthal, Salzburg, Bonds & Rideout, Cheyenne, Houston G. Williams, Sp. Asst. Atty. Gen., with Williams, Porter, Day & Neville, Casper, Michael D. White and David F. Jankowski, Sp. Asst. Attys. Gen., with White and Jankowski, Denver, Colo., and Randall T. Cox, Sp. Asst. Atty. Gen., with Omohundro and Palmerlee, Buffalo, for State of Wyo. Argument presented by Michael D. White, for Type 1 and 2 Claims, and Randall T. Cox for Type 1, 2 and 3 Claims, also present at counsel table were A.G. McClintock, Wyoming Atty. Gen., and S. Jane Caton, Asst. Atty. General.

Ruth Clare Yonkee, Thermopolis, for Red Lane Watershed Imp. Dist., Town of East Thermopolis.

C. Edward Webster, II, Cody, for Owl Creek Irr. Dist.

Donald P. White of White & White, Riverton, for City of Riverton, Midvale Irr. Dist. and Riverton Irr. Dist.

Kenneth Guido, Jr., Washington, D.C., for Shoshone Tribe.

W. Richard West, Jr. and Susan M. Williams of Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C., and B. Kevin Gover and Susan M. Williams of Gover, Williams & Stetson, Albuquerque, N.M., and Thomas W. Fredericks, Dale T. White, and Robert S. Pelcyger of Fredericks & Pelcyger, Boulder, Colo., and William J. Thomson and W. Perry Dray of Dray, Madison & Thomson, Cheyenne, for Shoshone and Northern Arapahoe Tribes.

Michael S. Messenger of Messenger & Jurovich, Thermopolis, for Landis Webber and Barbara Webber, individually and on behalf of Red Creek Cattle Co.

Bertha Jones and Grace Graboski.

F. Henry Habicht II, Asst. Atty. Gen. and James J. Clear, Dept. of Justice, Washington, D.C., for U.S.

Sky D Phifer of Phifer & Phifer, Lander, for Albert Hornecker and Hornecker Livestock Co., Inc.

Donald Bath and DHB & Co., and PLB & Co., Bradford Bath, Griffin Brothers, Inc., Ralph Floyd Urbigkit, Charles Richardson and Richard and Elsie Martin.

Ross D. Copenhaver of Copenhaver, Kahl & Kath, Powell, for Willwood Irr. Dist. and Deaver Irr. Dist.

Oral argument presented by Robert S. Pelcyger for Arapahoe Tribes, Type 1, 2, and 3 Claims; C. Edward Webster II for Owl Creek Irr. Dist., Type 2 Claims; Donald P. White for private parties City of Riverton, et al., Type 1 Claims; James J. Clear for U.S., Type 1 and 2 Claims; Michael S. Messenger for private parties Type 3 Claims; Sky D Phifer for Hornecker, et al., Type 3 Claims; also present at counsel table were Ruth Clare Yonkee; Dale T. White; Thomas W. Fredericks; David F. Jankowski; and B. Kevin Gover, Arthur Lazarus, Jr., and W. Richard West, Jr., for the Shoshone Tribes.

Before BROWN, C.J., and THOMAS, CARDINE, and MACY, JJ., and HANSCUM, District Judge.

I INTRODUCTION

This appeal is from the district court's order adjudicating rights to use water in the Big Horn River System and all other sources within the State's Water Division No. 3. The district court modified the special master's recommended decree. All parties have appealed from the district court's amended judgment and decree. We affirm in part and reverse in part.

A. Geography and History

We begin by acknowledging the comprehensive reports of both the special master and the district court and our use of these reports in our preparation of this section of this opinion.

Water Division No. 3 is essentially identical with what is known as the Big Horn River drainage basin. (See map appended.) It is located in Fremont, Hot Springs, Washakie, Big Horn and Park counties in northwestern and west central Wyoming and includes parts of Yellowstone National Park. Other federal entities included are the Wind River Indian Reservation, located in the southeastern portion of the region, consisting of approximately 4,000 square miles of land area, the Shoshone and Big Horn National Forests, the East Fork Winter Elk Pasture, the Sheridan County Elk Winter Pasture, the Yellowtail Wildlife Habitat Management Area, the Middle Creek Drainage Area of Yellowstone National Park, the Big Horn Canyon National Recreation Area, and numerous public water reserves, water wells and stock driveways upon federal lands administered by the Bureau of Land Management.

The topography of the area is varied. It includes mountain peaks and valleys, high plateaus, terraced stream valleys and low desert badlands. Elevations range from 3,870 feet near the town of Basin to over 13,000 feet in the Wind River Range. On the reservation the elevation varies from 4,500 feet at the northeastern corner near the Wind River Canyon to 12,500 feet in the Wind River Range.

The primary drainage system in the division is the Wind River-Big Horn River which originates in northern Fremont County and leaves the Division at the Wyoming-Montana border in northern Big Horn County. By statutory definition the division also includes the Clark's Fork of the Yellowstone River, § 41-3-501(a)(iii), W.S.1977, originating in northwestern Park County, which drains much of the northwestern portion of the region. The Shoshone River, a major tributary of the Big Horn River which originates in northern Park County and joins the Big Horn at the Yellowtail Reservoir, is the other major drainage system in Division 3.

The history of the Big Horn Basin for purposes of this...

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