Joint Bd. of Control of Flathead, Mission and Jocko Irr. Districts v. U.S.

• Decision Date: 29 November 1988
• Docket Number: No. 87-4106,87-4106
• Citation: 862 F.2d 195
• Parties: JOINT BOARD OF CONTROL OF the FLATHEAD, MISSION AND JOCKO IRRIGATION DISTRICTS, Plaintiff/Appellant, v. UNITED STATES of America; United States Department of the Interior; the Honorable Donald Hodel, Secretary of the Interior; the Bureau of Indian Affairs, an Agency within the Department of Interior; Stanley Speaks, Director, Portland Area Office, Bureau of Indian Affairs; and the Flathead Irrigation and Power Project, an Agency within the Bureau of Indian Affairs; Wyman Babby, Superintendent of the Flathead Agency; Defendants/Appellees, and The Confederated Salish and Kootenai Tribes of the Flathead Reservation, Intervenor-Defendant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 195

862 F.2d 195

JOINT BOARD OF CONTROL OF the FLATHEAD, MISSION AND JOCKO IRRIGATION DISTRICTS, Plaintiff/Appellant, v. UNITED STATES of America; United States Department of the Interior; the Honorable Donald Hodel, Secretary of the Interior; the Bureau of Indian Affairs, an Agency within the Department of Interior; Stanley Speaks, Director Portland Area Office, Bureau of Indian Affairs; and the Flathead Irrigation and Power Project, an Agency within the Bureau of Indian Affairs; Wyman Babby, Superintendent of the Flathead Agency; Defendants/Appellees and The Confederated Salish and Kootenai Tribes of the Flathead Reservation, Intervenor-Defendant/Appellee.

No. 87-4106.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 6, 1988.

Decided Nov. 29, 1988.

Stanley T. Kaleczyc, Helena, Mont., for plaintiff/appellant.

Maria U. Iizuka, U.S. Dept. of Justice, Washington, D.C., for defendants/appellees, and Patrick L. Smith, Pablo, Mont., for defendant-intervenor/appellee.

Appeal from the United States District Court for the District of Montana.

Before SCHROEDER, ALARCON and NORRIS, Circuit Judges.

ALARCON, Circuit Judge:

Plaintiff/Appellant the Joint Board of Control of the Flathead, Mission and Jocko Irrigation Districts ("Joint Board") filed an action in the district court for injunctive relief from operating procedures adopted by the Bureau of Indian Affairs ("BIA"), an agency within the Department of the Interior, to regulate instream flow and reservoir pool levels on the waters administered by the Flathead Irrigation and Power Project ("FIPP"), an agency within the BIA. Intervenor-Defendant/Appellee the Confederated Salish and Kootenai Tribes of the Flathead Reservation ("Tribes") intervened claiming that the Joint Board's complaint raises issues which affect tribal property interests and treaty rights. The Joint Board appeals from an order denying the Joint Board's motion for preliminary injunction for failure to exhaust administrative remedies and dismissing the complaint without prejudice pending the outcome of administrative proceedings.

We agree with the district court that the Joint Board failed to exhaust its administrative remedies and affirm.

FACTS AND PROCEDURAL HISTORY

This case concerns a continuing dispute over water supplies controlled by the FIPP and the operating strategies of the BIA to serve the competing demands of tribal fisheries and irrigated agriculture. In 1985 the Tribes initiated litigation which resulted in dismissal when all the parties stipulated to minimum water flows and reservoir levels for the 1985 Irrigation season. Confederated Salish and Kootenai Tribes v. Flathead Irrigation and Power Project, et al., 616 F.Supp. 1292 (D.Mont.1985). In 1986 the district court granted a preliminary injunction in an action brought by the Joint Board to enjoin the BIA from implementing an unequal water distribution plan. Joint Bd. of Control of the Flathead, Mission & Jocko Irrigation District v. United States, et al., 646 F.Supp. 410 (D.Mont.1986), rev'd, 832 F.2d 1127 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1732, 100 L.Ed.2d 196 (1988). As discussed below, we reversed this order.

                Joint Bd., 832 F.2d1127.    The Joint Board filed the present action in district court during the 1987 irrigation season while an appeal was pending in this court in the 1986 litigation
                

I. Litigation Concerning the 1985 Irrigation Season

This water litigation began in 1985 when the Tribes sued the United States and the BIA, which administers the FIPP. Confederated Salish and Kootenai Tribes, 616 F.Supp. at 1294. The Joint Board and the State of Montana intervened, claiming interests in the distribution of the Reservation waters. Id.

The Joint Board consists of representatives of the three irrigation districts served by the FIPP, and represents approximately 1700-1750 irrigation division operation and maintenance accounts. The BIA, an agency within the United States Department of the Interior, administers the FIPP. The FIPP supplies water to irrigate over 127,000 acres of land, some of which are held in trust by the United States for the Tribes and their members. Id. The FIPP maintains over one thousand miles of canals and approximately fourteen reservoirs for irrigation, which account for 55 to 65 percent of all surface waters occurring within the Reservation. Id.

The Tribes sought to enjoin the BIA from dewatering streams and reservoirs on the Reservation in order to meet the Joint Board's irrigation demands. Id. The Tribes alleged the streams and reservoirs serve as a natural habitat for tribal fisheries consisting largely of native and wild naturally reproducing trout. Accordingly, dewatering could cause irreparable injury to the fisheries. Id. In 1985, the Flathead Reservation experienced unusually dry conditions which threatened a severe drought before the close of the irrigation season as a result of diminished precipitation and snowpack levels. Id. The Tribes claimed the FIPP threatened the existence and preservation of tribal fisheries, in violation of the Treaty of Hell Gate, signed on July 16, 1855, and approved by Congress in 1859. 12 Stat. 975.

At the hearing on the Tribes' motion for a preliminary injunction, the Tribes and the United States presented the district court with a stipulation, expiring October 31, 1985, setting forth procedures to establish instream flows and providing designated minimum instream flows for particular streams and minimum levels for particular reservoirs. All of the parties, including the intervenors, joined in the stipulation. The BIA agreed to implement emergency instream flow levels for the 1985 irrigation season and to initiate a more comprehensive planning effort for the 1986 irrigation season. Id. The district court accepted the stipulation by all parties and dismissed the action without prejudice as moot. Id.

II. Litigation Concerning the 1986 Irrigation Season

On August 4, 1986, the Joint Board filed an action in the district court for injunctive relief, claiming that the BIA had abused its discretion in developing a 1986 water allocation plan by failing to consider the rights and interests of the Joint Board. Joint Bd., 646 F.Supp. at 413. The Joint Board named the United States and pertinent agencies as defendants. Id. The district court granted the Tribes' motion to intervene and issued a temporary restraining order enjoining implementation of the 1986 water allocation plan. Id.

On October 16, 1986, the district court granted a preliminary injunction prohibiting the BIA from implementing the 1986 plan, or any plan which failed to consider the rights of any interested party. Id. at 426. The trial judge directed the BIA to allocate all of the waters of the reservation in accordance with the principle of "just and equal distribution" using the 1985 and 1986 district court opinions as parameters to reach a fair middle ground in allocating the water resources until such time as the State of Montana adjudicates the priority of the competing rights of the parties. Id.

The Tribes appealed the district court's decision in the 1986 irrigation season litigation and on November 17, 1987, we reversed the district court's order and vacated the preliminary injunction. Joint Bd The action of the BIA in establishing stream flow and pool levels necessary to protect tribal fisheries is not unreviewable. In making its determination, however, the BIA is acting as trustee for the Tribes. Because any aboriginal fishing rights secured by treaty are superior to all irrigation rights, neither the BIA nor the Tribes are subject to a duty of fair and equal distribution of reserved fishery waters. Only after the fishery waters are protected does the BIA, acting as Officer-in-Charge of the irrigation project, have a duty to distribute fairly and equitably the remaining waters among irrigators of equal priority.

                832 F.2d 1127.    In explaining our decision, we stated
                

Id. at 1132 (emphasis in original).

We also determined that the issues presented by the parties were not rendered moot even though the most recent interim agreement covering the 1986 irrigation season had expired. Id. at 1129-30. We stated that the "[o]perating strategy for each irrigation season had such a short life that it cannot effectively be subjected to appellate review." Id. at 1130. We also concluded that the challenged operating strategies would continue to recur. Id. In explaining our determination that a live controversy existed, we stated that "there is a continuing public interest in determining the appropriate legal principles by which the BIA should distribute water, which transcends the particular distribution strategy selected in any given year." Id.

III. Litigation Concerning the 1987 Irrigation Season

On June 8, 1987, the Joint Board filed a complaint for injunctive relief and judicial review and a motion for a preliminary injunction to enjoin the continued operation and implementation of the 1987 Operating Procedures for Irrigation and Fisheries ("1987 Operating Procedures") issued by the BIA on April 3, 1987. The complaint named as defendants the United States of America, the United States Department of Interior, Donald Hodel as Secretary of the Interior, the BIA, Stanley Speaks as Director of the Portland Area Office of the BIA, the FIPP, and Wyman Babby as Superintendent of the Flathead Agency. The district court granted the Tribes' motion to intervene on June 19, 1987.

The BIA initiated a planning process in the spring of 1987 "for the purpose of disseminating information to the interested parties and to solicit verbal and/or written input from those parties" in order to develop and implement the 1987 Interim Water Management Planning for the Bureau of Indian Affairs, Flathead Agency Irrigation and Fishery Programs ("1987 Interim Water Management Plan"). The Joint Board asserts that the BIA abused its discretion in determining the...