State v. Acquavella

Decision Date18 November 2021
Docket NumberNo. 99373-4,99373-4
Citation498 P.3d 911
Parties In the MATTER OF the Determination of the RIGHTS TO the USE OF the SURFACE WATERS OF the YAKIMA RIVER DRAINAGE BASIN, IN ACCORDANCE WITH the PROVISIONS OF CHAPTER 90.03, REVISED CODE OF WASHINGTON, State of Washington, Department of Ecology, Respondent, v. James J. Acquavella et al., Appellants.
CourtWashington Supreme Court

Philip Thomas McDonald, Cascadia Law Group PLLC, 606 Columbia St., Nw Ste. 212, Olympia, WA, 98501-1093, Helen Joanne Brunner, US Attorney's Office, 700 Stewart St., Ste. 5220, Seattle, WA, 98101-4438, Rachel Heron, US Dept. of Justice Env. & Natural Res. Div., Po Box 7415, Washington, DC, 20044, Jeffrey S. Schuster, Attorney at Law, Po Box 31197, Seattle, WA, 98103-1197, Bryan P. Myre, Witherspoon Kelley, 222 N. 3rd St., Yakima, WA, 98901-2339, Jerry D. Talbott, Attorney at Law, 308 N. 2nd St., Yakima, WA, 98901-2335, Joseph Perrine Mentor Jr., Mentor Law Group PLLC, Po Box 1102, Eastsound, WA, 98245-1102, Peter McGillis Ritchie, Meyer, Fluegge & Tenney, P.S., Kindra Crawford, Attorney at Law, 230 S. 2nd St., Ste. 101, Yakima, WA, 98901-2865, for Appellant(s).

John Jay Carroll, Halverson Northwest Law Group PC, Po Box 22550, Yakima, WA, 98907-2550, Thomas Randolph Dreiling, Attorney at Law, 4475 Pleasant Beach Dr., Ne, Bainbridge Island, WA, 98110-3220, Bryan P. Myre, Witherspoon Kelley, 222 N. 3rd St., Yakima, WA, 98901-2339, Stephen H. North, Washington Attorney General's Office, 2425 Bristol Ct., Sw, Po Box 40117, Matthew Janz, Washington Attorney General's Office, Po Box 40117, Olympia, WA, 98504-0117, Paul Campbell Dempsey, Halverson Northwest Law Group, 405 E. Lincoln Ave., Yakima, WA, 98901-2469, Lawrence Edwin Martin, Halverson Northwest Law Group PC, Po Box 22550, Yakima, WA, 98907-2550, Joseph Anthony Brogan, Foster Garvey PC, 1111 3rd Ave., Ste. 3000, Seattle, WA, 98101-3296, Joseph Perrine Mentor Jr., Mentor Law Group PLLC, Po Box 1102, Eastsound, WA, 98245-1102, Adam Waldon Gravley, Van Ness Feldman LLP, 1191 2nd Ave., Ste. 1800, Seattle, WA, 98101-2996, Matthew Dyckman Wells, Tupper Mack Wells PLLC, 2025 1st Ave., Ste. 1100, Seattle, WA, 98121-2100, Philip Thomas McDonald, Cascadia Law Group PLLC, 606 Columbia St., Nw, Ste. 212, Olympia, WA, 98501-1093, Adrienne Elizabeth Smith, Attorney at Law, 1125 Washington St., Se, Po Box 40100, Olympia, WA, 98504-0100, Patrick Michael Andreotti, Attorney at Law, 4305 Avalanche Ave., Yakima, WA, 98908-2920, for Respondent(s).

Lawrence Edwin Martin, Halverson Northwest Law Group PC, Po Box 22550, Yakima, WA, 98907-2550, Paul Campbell Dempsey, Halverson Northwest Law Group, 405 E. Lincoln Ave., Yakima, WA, 98901-2469, Thomas A. Cowan Jr., Gravis Law PLLC, 503 Knight St., Ste. A., Richland, WA, 99352-4257, Jeffrey David Slothower, Attorney at Law, 201 W. 7th Ave., Ellensburg, WA, 98926-2816, for Respondent/Cross-Appellant.

Joseph Perrine Mentor Jr., Mentor Law Group PLLC, Po Box 1102, Eastsound, WA, 98245-1102, for Other Parties.

WHITENER, J.

¶ 1 This case presents the culmination of the fight for surface water rights that arguably began in 1855 with the Yakama Nation treaty that reserved water rights for the Yakama Nation. Since then, there have been multiple cases that purport to (at least partially) adjudicate and reserve water rights of various parties throughout the Yakima River Drainage Basin (the Basin). Some of the present parties have litigated these water rights in both federal and state court. The current litigation began in 1977 when the Washington State Department of Ecology filed a general water rights adjudication for all waters contained within the Basin. The Yakima County Superior Court divided the Basin into multiple distinct subbasins and issued conditional final orders (CFOs) for each subbasin at various points within the litigation. The superior court issued its final decree in May 2019, incorporating all of the prior CFOs as necessary. Multiple parties appealed the final decree, and, after briefing was received, Division Three of the Court of Appeals certified the case to this court.

¶ 2 The current appeal contains what can be categorized as three separate appeals, each seeking to modify the trial court's final decree (or the incorporations of the CFOs within). Although each distinct appeal is unrelated as to the disputed issues, some parties have an interest in more than one appeal. Further, all three appeals are tied together by slight variations on one common procedural gatekeeping issue: the appealability of CFOs and how that relates to an appeal of the final decree.

¶ 3 Overall, we reverse the superior court in part and affirm in part, as follows. We hold that RAP 2.2(d) and CR 54(b), which govern the appealability of a partial final judgment in a case with multiple parties, are permissive rules and that a failure to appeal from an order certified for appeal under these rules does not preclude an appeal from the final judgment. In addition, res judicata does not bar Ahtanum Irrigation District (AID) from appealing issues in the final decree. Further, we hold that the Yakama Nation, the Yakama Reservation Irrigation District (YRID), and the United States are appealing a conflict between a prior order and the final judgment in this case. Accordingly, we hold that all three appeals in this case are timely and reach the merits of the issues presented.

¶ 4 We accept the concession of Ecology and reverse the superior court's acreage limits on the Yakama Nation's specified water rights and remand to strike the limits. Further, given that no party opposes the merits, we reverse the superior court's calculation of Rattlesnake Ditch Association's (RDA) members’ water rights and remand to recalculate the members’ water rights using the expert testimony as set forth in RDA's opening brief. We affirm the superior court's holding that AID may not open the headgates at Bachelor Creek and Hatton Creek for nondiversionary stockwater or to rehydrate the creeks. However, we hold that AID does have a nondiversionary stockwater right to the natural waters at Bachelor and Hatton Creeks from Ahtanum Creek outside of irrigation season. However, because this right is junior to the water rights of the Yakama Nation, it may be exercised only in the unlikely event that the Yakama Nation is not making beneficial use of all the waters of Ahtanum Creek. Finally, we affirm the superior court's holding that AID's water duty was adjudicated in the federal Ahtanum1 cases and affirm the superior court's denial of conveyance loss water, as conveyance loss is part of water duty.

¶ 5 Due to the lengthy litigation and the large number of parties in this case, a brief history of the Acquavella litigation and an overview of each of the three appeals, including the parties and issues presented, is instructive in understanding the issues presented in this case.

A BRIEF HISTORY OF THE ACQUAVELLA LITIGATION

¶ 6 As a whole, this case concerns the litigation surrounding the water rights in the Basin. "By way of geographic orientation, the Yakima River is a tributary of the Columbia River, commencing at the crest of the Cascade Range near Snoqualmie Pass and generally flowing southeasterly for 175 miles before emptying into the Columbia." In re Yakima River Drainage Basin , 177 Wash.2d 299, 305, 296 P.3d 835 (2013) ( Acquavella V ).

¶ 7 In 1977, Ecology initiated a general adjudication pursuant to chapter 90.03 RCW to determine the priority of water rights held within the Basin. "A general adjudication, pursuant to RCW 90.03, is a process whereby all those claiming the right to use waters of a river or stream are joined in a single action to determine water rights and priorities between claimants." Dep't of Ecology v. Acquavella , 100 Wash.2d 651, 652, 674 P.2d 160 (1983) ( Acquavella I ). "It is akin [to] a quiet title action." Acquavella V , 177 Wash.2d at 306, 296 P.3d 835. By 1981 this included over 2100 claimants, although only a handful are parties to this appeal.

¶ 8 Pursuant to RCW 90.03.160, the Yakima County Superior Court appointed a referee to assist the court in evaluating the claims. The referee set forth the process for each interested party to submit their claim to water rights within the Basin. The court divided the adjudication into multiple subbasins and divided the water rights at issue into four procedural pathways:

"1. Federal reserved rights for Indian claims.
"2. Federal reserved rights for non-Indian claims.
"3. State-based rights of major claimants.
"4. State-based rights for other claimants, by subbasin."

Dep't of Ecology v. Yakima Reservation Irrig. Dist. , 121 Wash.2d 257, 262, 850 P.2d 1306 (1993) ( Acquavella II ).

¶ 9 Throughout this case, there have been various appeals decided: four by this court and one by Division Three of the Court of Appeals. In Acquavella I , we held that "under the special circumstances of this case the notice provided by [Ecology] was adequate to meet constitutional due process requirements." 100 Wash.2d at 659, 674 P.2d 160. In Acquavella II , we addressed multiple issues related to the Yakama Nation and whether some congressional acts limited the Yakama Nation's water rights. 121 Wash.2d at 272-73, 850 P.2d 1306. In Department of Ecology v. Acquavella , 131 Wash.2d 746, 750, 935 P.2d 595 (1997) ( Acquavella III ), we addressed the superior court's award of water rights to the Yakima-Tieton Irrigation District. In Department of Ecology v. Acquavella , 112 Wash. App. 729, 732, 51 P.3d 800 (2002) ( Acquavella IV ), Division Three of the Court of Appeals examined res judicata as it related to the denial of water rights to a party that did not assert its rights in a previous adjudication. Finally, in Acquavella V , this court addressed many discrete issues affecting the Ahtanum Subbasin. 177 Wash.2d at 304, 296 P.3d 835. Significant to the present appeal, we held that the federal Ahtanum litigation was a water rights adjudication that is binding on...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT