General Adjudication of All Rights to use Water in Big Horn River System, In re, s. 91-83

• Decision Date: 05 June 1992
• Docket Number: 91-91,Nos. 91-83,91-84,s. 91-83
• 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. State of Wyoming; Midvale Irrigation District; G.A. Brown Testamentary Trust through Langford Keith, Co-Trustee; LeClair Irrigation District; Riverton Valley Irrigation District; and James R. Allen, et al., Appellants (Plaintiffs). to 91-94, 91-96 and 91-97.
• Court: Wyoming Supreme Court

Page 273

835 P.2d 273

In re the GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE BIG HORN RIVER SYSTEM and All Other Sources, State of Wyoming.

State of Wyoming; Midvale Irrigation District; G.A. Brown Testamentary Trust through Langford Keith, Co-Trustee; LeClair Irrigation District; Riverton Valley Irrigation District; and James R. Allen, et al., Appellants (Plaintiffs).

Nos. 91-83, 91-84, 91-91 to 91-94, 91-96 and 91-97.

Supreme Court of Wyoming.

June 5, 1992.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Senior Asst. Atty. Gen., and Michael D. White, David F. Jankowski, and Thomas J. Davidson, Special Asst. Attys. Gen., of White & Jankowski, Denver, Colo., for the State.

Jay E. Vincent of Vincent & Vincent, Riverton, and Richard A. Simms and Jay F. Stein and James C. Brockmann, of Simms & Stein, P.A., Santa Fe, N.M., for Midvale Irrigation Dist.

Michael S. Messenger of Messenger & Jurovich, Thermopolis, for G.A. Brown Testamentary Trust.

Norman E. Young of Hill, Young & Barton, P.C., Riverton, for LeClair Irrigation Dist.

Donald P. White of White, White & Roberts, P.C., Riverton, for Riverton Valley Irrigation Dist.

Sky D. Phifer of Phifer Law Office, Lander, for James R. Allen, et al.

Richard B. Stewart, Asst. Atty. Gen., and Judith Rabinowitz and James J. Clear, Attorneys, Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., for the U.S.

William J. Thomson, III of Dray, Madison & Thomson, Cheyenne, and Susan M. Williams and Jane Marx of Gover, Stetson & Williams, P.C., Albuquerque, N.M., for Shoshone Indian Tribe.

Andrew Baldwin and Robert F. Thompson, Ethete, for Northern Arapaho Tribe.

Don W. Riske of Riske & Arnold, Cheyenne, and Thomas D. Lustig of the National Wildlife Federation, Boulder, Colo., for amicus curiae Wyoming Wildlife Federation and National Wildlife Federation.

Before THOMAS, CARDINE, MACY and GOLDEN, JJ., and BROWN, J. (Retired).

MACY, Justice.

The State of Wyoming and non-Indian water users appeal from a judgment entered by the district court which (1) decreed that the Shoshone and Northern Arapaho Tribes on the Wind River Indian Reservation may change the use of their reserved water right as they deem advisable without regard to Wyoming water law; and (2) substituted the tribal water agency for the state engineer as the administrator of both reserved and state-permitted water rights within the Wind River Indian Reservation.

We reverse.

The core issues stated in various ways by the several appellants are:

1. Whether the Tribes may change their right to divert future project water for agricultural purposes to a right to maintain an instream flow for fishery purposes without regard to Wyoming water law; and

2. Whether the Tribes have the right to administer all the water rights within the reservation to the exclusion of the Wyoming state engineer.

This is another appeal of an ongoing general adjudication of all water rights in the Big Horn River System, involving over 20,000 claimants. Because of its size and complexity, the adjudication is being conducted in phases. The dispute presently before this court relates to the interpretation of the amended judgment and decree entered on May 24, 1985, by Judge Alan B. Johnson (the 1985 decree) involving Phase I, wherein the Tribes were granted the right to divert water for agricultural purposes on reservation land historically irrigated, as well as on reservation land included within certain future projects. In Big Horn I, ¹ this court affirmed the 1985 decree, granting the Tribes the right to divert water from the Big Horn River System for agricultural purposes and subsuming livestock, municipal, domestic, and commercial uses within those purposes. This court also affirmed the district court's finding that an instream flow right for fisheries was not a subsuming use. The United States Supreme Court affirmed the Big Horn I decision in 1989. ² After the United States Supreme Court affirmed the Wyoming Supreme Court's decision, the Tribes announced their intent to dedicate a portion of their reserved water right, which had been awarded for future projects, to instream flow for fisheries and other nonsubsumed uses in the Wind River. To that end, the Tribes adopted a Wind River Interim Water Code, created the Wind River Water Resources Control Board, and, on April 12, 1990, granted themselves Instream Flow Permit No. 90-001, which authorized Shortly after the issuance of Permit No. 90-001, the Tribes complained to the state engineer that the diversion of water by holders of state-awarded water rights caused the Wind River flows to be less than that amount authorized by the permit. The state engineer informed the Tribes that their permit was unenforceable because the Tribes had been awarded only the right to divert water and that any change in the use of future project water covered by their reserved water right must be made following a diversion. The Tribes nevertheless thereafter requested that the state-awarded water rights of Midvale Irrigation District be curtailed so that the instream flows could be maintained. The state engineer refused to honor this request, which he viewed as being an unlawful selective call.

the dedication for the 1990 irrigation season of up to 252 cfs of water in the Wind River for "fisheries restoration and enhancement, recreational uses, ground water recharge downstream benefits to irrigators and other water users."

On July 30, 1990, the Tribes filed a motion in the district court for an order to show cause why the state engineer should not be held in contempt, why he should not be relieved of his duties, and why a special master should not be appointed to enforce the Tribes' reserved water right. The State filed its own motion for a determination of certain administrative matters. The district court referred the motions to a special master for a report. The special master agreed to hear all the issues raised except for the contempt issue involving the state engineer.

The specific issues which the Tribes presented to the special master were: (1) Whether the Tribes were permitted to convert their water right reserved for future agricultural projects to an instream flow; (2) whether the Tribes properly accomplished the allocation of future project water to instream flow use pursuant to the Wind River Interim Water Code and Permit No. 90-001; and (3) whether the state engineer had an obligation to enforce the tribal instream flow permit. A partial list of the State's issues presented to the special master included: (1) Whether the state engineer had the authority to administer the Tribes' reserved water right; (2) whether, if the Tribes' future project water may be changed to instream uses, the change must be made in accordance with Wyoming water law; and (3) whether a change in use of future project water may be made without consideration of injury to junior appropriators.

After hearing oral arguments on exceptions to the special master's report, the district court entered its judgment and decree on March 11, 1991, declaring that the Tribes were entitled to use their reserved water right on the reservation as they deemed advisable, including instream flow use, without regard to Wyoming water law. The district court did not distinguish that portion of the Tribes' reserved water right quantified on the basis of historical use from that portion quantified on the basis of future practicably irrigable acres when it issued its judgment and decree. The only issue properly before the district court was whether the Tribes could dedicate their future project water to instream flow for the purposes of maintaining fisheries, et cetera, without regard to Wyoming water law. We limit the scope of review on appeal accordingly. The court also ordered the substitution of the Tribes for the state engineer as the administrator of Indian and non-Indian water rights within the Wind River Indian Reservation. On May 3, 1991, this court stayed the judgment and decree from which this appeal is taken.

The Tribes interpret the findings of fact, conclusions of law, and judgment entered on May 10, 1983, by Judge Harold Joffe (the 1983 decision), approving the master's report which awarded them a reserved water right to irrigate practicably irrigable acres within the Wind River Indian Reservation, as not restricting the Tribes' use of their future project water so long as consumptive use was not increased and the use was confined to the reservation. The Tribes contend that the agricultural purposes relied upon to quantify their water right do not limit their uses of This Court, thus, calculates the Tribes['] entitlement to a reserved water right, with a priority date of 1868, based on the purpose of agriculture (which term includes livestock use and domestic use) and denies such reserved water right for other multi-purpose uses as claimed by the Tribes. The Court by such finding does not intend to dictate to the Tribes that they are restricted as to the use of said reserved water only for the purpose of agriculture, inasmuch as it recognizes that it cannot tell the Tribes how they must use water that comes under a reserved water permit. If the Tribes desire to use so much of their water for other purposes, they may do so.

the water. They reason that Judge Joffe made it clear in his 1983 decision that the methodology used to quantify the Tribes' reserved water right, whether by historical use or by practicably irrigable acreage, in no way limited their use of the water by stating:

1983 decision at 20.

The Court states again the premise that the determination of "historic" acreage and "practicably irrigable acreage" is used only as a measuring device to calculate the Tribes['] present and future needs.... When the Tribes determine where and how they wish to use the water granted in this decree, they will inform the proper authorities who will then be able to make the specific...