In re CSRBA Case No.49576 Subcase No. 91-7755, 090519 IDSCCI, 45381
|Docket Nº:||45381, 45382, 45383, 45384|
|Opinion Judge:||STEGNER, JUSTICE.|
|Party Name:||UNITED STATES OF AMERICA and COEUR D'ALENE TRIBE, Claimants-Respondents on Appeal, v. STATE OF IDAHO, Objector-Appellant on Appeal, and HECLA MINING, CITY OF COEUR D'ALENE, HAGADONE HOSPITALITY CO., HARMON PROPERTY OWNERS ASSN., NORTH KOOTENAI WATER & SEWER, PINEHURST WATER DISTRICT, POTLATCH FOREST HOLDINGS, INC., POTLATCH LAND & LUMBER, LLC, ...|
|Attorney:||Lawrence G. Wasden, Idaho Attorney General, Boise, for the State of Idaho. Steven W. Strack argued. United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. and Boise, for the United States of America. Erica B. Kranz argued. Sonosky, Chambers, Sachse, Mielke...|
|Judge Panel:||Justices BRODY and BEVAN CONCUR. BURDICK, Chief Justice, concurring in part and dissenting in part. Justice HORTON CONCURS.|
|Case Date:||September 05, 2019|
|Court:||Supreme Court of Idaho|
Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Twin Falls County. Eric J. Wildman, District Judge.
The judgment of the district court is affirmed in part and reversed in part.
Lawrence G. Wasden, Idaho Attorney General, Boise, for the State of Idaho. Steven W. Strack argued.
United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. and Boise, for the United States of America. Erica B. Kranz argued.
Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, Albuquerque, NM, and Office of Legal Counsel Coeur d'Alene Tribe, Plummer, for the Coeur d'Alene Tribe. Vanessa L. Ray-Hodge argued.
Barker Roshold & Simpson LLP, Boise, for Hecla Mining. Albert P. Barker argued.
Parsons Behle & Latimer, Boise, for North Idaho Water Rights Alliance, et al., Norman M. Semanko argued.
These four appeals arise from a consolidated subcase that is a part of the broader Coeur d' Alene-Spokane River Basin Adjudication (CSRBA).1 The United States Department of the Interior2 (the United States), as trustee for the Coeur d' Alene Tribe (the Tribe), filed 353 claims in Idaho state court seeking judicial recognition of federal reserved water rights to fulfill the purposes of the Coeur d' Alene Tribe's Reservation (the Reservation).3 The Tribe joined the litigation. The State of Idaho (the State) and others objected to the claims asserted by the United States and the Tribe. The district court bifurcated the proceedings to decide only the entitlement to water at this stage, with the quantification stage to follow. After cross-motions for summary judgment, the district court allowed certain claims to proceed and disallowed others.
The district court specifically allowed reserved water rights for agriculture, fishing and hunting, and domestic purposes. The district court allowed reserved water rights for instream flows within the Reservation, but disallowed those for instream flows outside the Reservation. The district court disallowed other claims, including a claim on behalf of the Tribe to maintain the level of Lake Coeur d' Alene. The district court then determined priority dates for the various claims it found should proceed to quantification. Generally speaking, the district court held that the Tribe was entitled to a date-of-reservation priority date for the claims for consumptive uses, and a time immemorial priority date for nonconsumptive uses. However, in regard to lands homesteaded on the Reservation by non-Indians that had since been reacquired by the Tribe, the district court ruled the Tribe was entitled to a priority date of a perfected state water right, or if none had been perfected or it had been lost due to nonuse, the Tribe's priority date would be the date-of-reacquisition.
The district court's holdings are now the subject of appeals by the State of Idaho (Supreme Court Docket No. 45381), the United States (Supreme Court Docket No. 45382), the Tribe (Supreme Court Docket No. 45383), and a group of private parties who will collectively be referred to as the North Idaho Water Rights Group (the NIWRG)4 (Supreme Court Docket No. 45384). Because all of the appeals arise out of the same decisions of the district court and significantly overlap one another, we will address them together in one opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. History of the Tribe and the Reservation.
In its summary judgment order, the district court adopted the history of the Tribe and the creation of the Reservation as set out by the United States Supreme Court in Idaho v. United States (hereafter Idaho II), 533 U.S. 262 (2001). That history, as articulated by the U.S. Supreme Court, is as follows: The Coeur d' Alene Tribe once inhabited more than 3.5 million acres in what is now northern Idaho and northeastern Washington, including the area of Lake Coeur d' Alene and the St. Joe River. Tribal members traditionally used the lake and its related waterways for food, fiber, transportation, recreation, and cultural activities. The Tribe depended on submerged lands for everything from water potatoes harvested from the lake to fish weirs and traps anchored in riverbeds and banks.
. . . In 1867, in the face of immigration into the Tribe's aboriginal territory, President Johnson issued an Executive Order setting aside a reservation of comparatively modest size, although the Tribe was apparently unaware of this action until at least 1871, when it petitioned [Tribe's 1872 Petition] the Government to set aside a reservation. The Tribe found the 1867 boundaries unsatisfactory, due in part to their failure to make adequate provision for fishing and other uses of important waterways. When the Tribe petitioned the Commissioner of Indian Affairs a second time, it insisted on a reservation that included key river valleys because "we are not as yet quite up to living on farming" and "for a while yet we need [to] have some hunting and fishing."
Following further negotiations, the Tribe in 1873 agreed to relinquish (for compensation) all claims to its aboriginal lands outside the bounds of a more substantial reservation that negotiators for the United States agreed to "set apart and secure" "for the exclusive use of the Coeur d' Alene Indians, and to protect . . . from settlement or occupancy by other persons." The reservation boundaries described in the agreement covered part of the St. Joe River (then called the St. Joseph), and all of Lake Coeur d' Alene except a sliver cut off by the northern boundary.
Although by its own terms the agreement was not binding without congressional approval, later in 1873 President Grant issued an Executive Order directing that the reservation specified in the agreement be "withdrawn from sale and set apart as a reservation for the Coeur d' Alene Indians." The 1873 Executive Order set the northern boundary of the reservation directly across Lake Coeur d' Alene . . . .
As of 1885, Congress had neither ratified the 1873 agreement nor compensated the Tribe. This inaction prompted the Tribe to petition the Government again [Tribe's 1885 Petition], to "make with us a proper treaty of peace and friendship . . . by which your petitioners may be properly and fully compensated for such portion of their lands not now reserved to them...
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