IN RE USE OF WATER IN BIG HORN RIVER SYS.

• Decision Date: 14 June 2002
• Docket Number: No. 00-296.,00-296.
• Citation: 48 P.3d 1040,2002 WY 89
• 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, Jack Appleby, Brad Bath, Jim Buline, Leah Heathman, Hornecker Livestock, Inc., Ralph Hornecker, Tim Schell, Ralph Urbigkit, Ralph F. "Rusty" and Kathy Urbigkit, and Donald Van Riper, Appellants (Petitioners).
• Court: Wyoming Supreme Court

48 P.3d 1040

2002 WY 89

In re the GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN the BIG HORN RIVER SYSTEM and all other Sources, State of Wyoming,

Jack Appleby, Brad Bath, Jim Buline, Leah Heathman, Hornecker Livestock, Inc., Ralph Hornecker, Tim Schell, Ralph Urbigkit, Ralph F. "Rusty" and Kathy Urbigkit, and Donald Van Riper, Appellants (Petitioners).

No. 00-296.

Supreme Court of Wyoming.

June 14, 2002.

Representing Appellants: Sky D Phifer of Phifer Law Office, Lander, WY.

Representing State of Wyoming: Thomas J. Davidson, Deputy Attorney General, Water and Natural Resources Division; Keith S. Burron, Special Assistant Attorney General, of Associated Legal Group, LLC, and Brian C. Shuck, Special Assistant Attorney General, of Dray, Thomson & Dyekman, P.C., Cheyenne, WY.

Representing Northern Arapaho Tribe: Richard M. Berley of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA.

Representing Eastern Shoshone Tribe: John Schumacher of Law Office of John Schumacher, Ft. Washakie, WY.

Representing United States of America: John C. Cruden, Acting Assistant Attorney General, Environment & Natural Resources Division; John R. Green, Interim United States Attorney, and Carol Statkus and Thomas Roberts, Assistant United States Attorneys, Cheyenne, WY; Lynn Johnson, Sean Donahue, and Jeffrey C. Dobbins, Attorneys, Department of Justice, Washington, DC; and Richard Aldrich, Field Solicitor, Office of the Solicitor, United States Department of the Interior, Billings, MN.

Before LEHMAN, C.J.; GOLDEN, KITE, and VOIGT, JJ.; and E. JAMES BURKE, D.J.

KITE, Justice.

[¶ 1] The appellants own lands within the Big Horn River System and claim federal reserved water rights as a result of their acquiring properties from Indian allottees. These claims are known as "Walton" claims based on the federal court cases which first identified them. To qualify, Walton claimants must demonstrate their lands were irrigated by their Indian allottee predecessors or the first non-Indian successors irrigated the lands within a reasonable time after they were conveyed. The district court denied these appellants' claims (unsuccessful claimants) finding they failed to show beneficial use of water within a "reasonable time" because they relied upon the construction of the Wind River Irrigation Project to make the water available to their lands and the project was not completed until approximately ten to thirty years after transfer of the allotments. Yet, the district court approved other Walton claims where transfers of the allotments to successor non-Indians occurred significantly later and closer in time to the completion of the irrigation project. We reverse in part and remand with instructions that unsuccessful claimants who can demonstrate beneficial use within a reasonable time after the federal project facilities became available to their properties are entitled to a reserved right. We affirm the district court's determination that the "reasonable time" to establish beneficial use begins to run when the property first passes from allotment status and is not restarted by a subsequent purchase by an Indian. We also affirm the special master's decision concerning the appropriate weight to be given a proof of appropriation executed in 1943 as evidence of actual irrigation prior to 1910.

FACTS

[¶ 2] This appeal arises out of the continuing, comprehensive adjudication of the water rights in the Big Horn River System initiated in 1977 in accordance with the provisions of Wyo. Stat. Ann. § 1-37-106 (Lexis-Nexis 2001) and the McCarran Amendment, 43 U.S.C. § 666 (1976). The purpose of the adjudication was to resolve the issue of what water rights the federal government reserved for the Wind River Indian Reservation's benefit. See Riverton Valley Irrigation District v. Big Horn Canal Association, 899 P.2d 848, 850 (Wyo.1995) (Big Horn V)

. This immense task resulted in more than 20,000 water rights claims being winnowed down to the seventeen disputed claims now before this court. Id. Through prior appeals to this court, we have provided summaries of the factual and legal background of this litigation. See State v. Owl Creek Irrigation District Members, 753 P.2d 76, 83-86 (Wyo. 1988),

cert. granted in part, 488 U.S. 1040, 109 S.Ct. 863, 102 L.Ed.2d 987, aff'd sub nom. Wyoming v. United States, 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342 (1989) (Big Horn I ); Alexander v. United States, 803 P.2d 61 (Wyo.1990) (Big Horn II ); In re General Adjudication of All Rights to Use Water in the Big Horn River System, 835 P.2d 273 (Wyo.1992); Big Horn V, 899 P.2d 848.

[¶ 3] In the initial appeal, Big Horn I, 753 P.2d 76, this court was called upon to determine whether non-Indian water users could claim a federal reserved right with an 1868 priority date as successors in interest to Indian allottees who received fee lands under the General Allotment Act of 1887 (now 25 U.S.C. §§ 331-358) and reserved water rights through the 1868 Treaty of Fort Bridger, which established the Wind River Indian Reservation. Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). Relying on the authority of United States ex rel. Ray v. Hibner, 27 F.2d 909 (D.Idaho 1928), and Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) (Walton II ), we approved Walton rights and held non-Indian purchasers of land from Indian allottees do obtain reserved water rights with an 1868 priority date for the practicably irrigable acreage they can show was irrigated by their Indian predecessors or put under irrigation within a reasonable time after transfer from allotment status. Big Horn I, 753 P.2d at 112-14. These claims became known as Walton claims based upon a series of Ninth Circuit Court of Appeals cases dealing with rights of non-Indian purchasers of allotments. Colville Confederated Tribes v. Walton, 460 F.Supp. 1320 (E.D.Wash.1978) (Walton I ); Walton II, 647 F.2d 42; Colville Confederated Tribes v. Walton, 752 F.2d 397 (9th Cir.1985) (Walton III). The Big Horn I, 753 P.2d 76, holding was further clarified in Big Horn II, 803 P.2d 61.¹ The matter was remanded with instructions that claimants be granted a reserved right if they met the burden of proof that their lands were either irrigated by their Indian predecessors or placed into irrigation within a reasonable time after the lands were transferred out of Indian ownership.

[¶ 4] Much of the land within the Wind River Indian Reservation could not be irrigated without construction of substantial storage and conveyance structures. In 1905, H.E. Wadsworth, superintendent and special disbursing agent of the Shoshone Agency, an employee of the Bureau of Indian Affairs, filed multiple state diversion and appropriation permit applications, covering over 123,000 acres of reservation land. These state applications were made preparatory to the United States government's development of the Wind River Irrigation Project, which proposed construction of storage and conveyance structures to allow irrigation of reservation lands. Throughout the development of the project, from 1905 through the early 1960s, the United States requested, and the state engineer granted for "good cause shown," numerous extensions of time to put the water initially claimed in 1905 to beneficial use pursuant to Wyo. Stat. § 41-4-506. Progress on the project, which entailed the construction of a huge network of laterals, canals, and water storage facilities, was steady and continuous yet protracted due to the sheer enormity of the task, incremental appropriation and provision of federal funds, and intervening world events.

[¶ 5] In the adjudication of over 200 of these Walton claims, only the eleven claimants, the subjects of this appeal, were denied reserved water rights for failure to show beneficial use of the water either by their Indian allottee predecessors or within a reasonable time after transfers of ownership. The special master acknowledged in her report that, absent the United States' assistance in constructing the Wind River Irrigation Project, irrigation would not have been possible on any of the Walton claimants' lands.

[¶ 6] The special master and the district court referred to the unsuccessful claimants as the "tacking claimants" because of their assertion they were entitled to rely on the efforts of the United States in developing the federal irrigation project to establish their reasonable diligence for Walton rights.² The unsuccessful claimants further asserted that, having acquired the reserved water rights through the doctrine of relation back, they should also be entitled to an 1868 reserved water rights priority date like the successful claimants.

[¶ 7] The unsuccessful claimants' properties passed out of allotment status during the period of 1900-1920, substantially earlier than the successful claimants' properties. The federal project did not begin delivering water for use until the 1930s and 1940s. Because of the early transfer from allotment status, the period between the transfer and actual use of the project waters by the unsuccessful claimants was ten to twenty years as compared to a shorter period for the successful claimants who obtained title to the Indian lands much closer in time to the federal project's completion. The special master's conclusions, adopted by the district court, determined the unsuccessful claimants failed to demonstrate beneficial use within a reasonable time after the lands were transferred from the allottees in order to retain the federal reserved water rights they had acquired upon transfers of the allotments. Instead, the special master and district court concluded the unsuccessful claimants held state water rights which were entitled to a 1905 priority based on relation back of the state permit applications.

[¶ 8] Eleven unsuccessful claimants have appealed the district court's order, which affirmed and adopted the special master's report rejecting their...