U.S. & Coeur D'Alene Tribe v. State (In re Csrba Case No. 49576 Subcase No. 91-7755), Docket Nos. 45381

CourtIdaho Supreme Court
Writing for the CourtSTEGNER, Justice.
Citation165 Idaho 517,448 P.3d 322
Parties IN RE: CSRBA CASE NO. 49576 SUBCASE NO. 91-7755 (353 Consolidated Subcases). 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, Potlatch Trs Idaho, LLC, Benewah County Board of Commissioners, Buell Bros, Inc., Jack A. Buell, Eleanor L. Buell, City of Harrison, City of St. Maries, Whiteman Lumber Co., Inc., North Idaho Water Rights Group, Ratliff Family LLC #1, John T. McFaddin, Ronald D. Heyn, and William M. Green, Objectors, and Avista Corporation, Respondent. United States of America, Claimant-Appellant on Appeal v. State of Idaho, Hecla Mining, North Idaho Water Rights Alliance, North West Property Owners Alliance, Coeur d'Alene Lakeshore Property Owners Association, Rathdrum Power, LLC, Hagadone Hospitality Co., Objectors-Respondents On Appeal and City of Coeur d'Alene, Harmon Property Owners Assn., North Kootenai Water & Sewer, Pinehurst Water District, Potlatch Forest Holdings, Inc., Potlatch Land & Lumber, LLC, Potlatch Trs Idaho, LLC, Benewah County Board of Commissioners, Buell Bros, Inc., Jack A. Buell, Eleanor L. Buell, City of Harrison, City of St. Maries, Whiteman Lumber Co., Inc., Coeur d'Alene Tribe, Ratliff Family LLC #1, John T. McFaddin, Ronald D. Heyn, and William M. Green, Objectors and Avista Corporation, Respondent. Coeur d'Alene Tribe, Claimant-Appellant on Appeal v. State of Idaho, Hecla Mining, North Idaho Water Rights Alliance, North West Property Owners Alliance, Coeur d'Alene Lakeshore Property Owners Association, Rathdrum Power, LLC, Hagadone Hospitality Co., Objectors-Respondents, and City of Coeur d'Alene, Harmon Property Owners Assn., North Kootenai Water & Sewer, Pinehurst Water District, Potlatch Forest Holdings, Inc., Potlatch Land & Lumber, LLC, Potlatch Trs Idaho, LLC, Benewah County Board of Commissioners, Buell Bros, Inc., Jack A. Buell, Eleanor L. Buell, City of Harrison, City of St. Maries, Whiteman Lumber Co., Inc., United States of America, Ratliff Family LLC #1, John T. McFaddin, Ronald D. Heyn, and William M. Green, Objectors. and Avista Corporation, Respondent. United States of America, and Coeur d'Alene Tribe, Claimants-Respondents, v. North Idaho Water Rights Alliance, North West Property Owners Alliance, Coeur d'Alene Lakeshore Property Owners Association, Rathdrum Power, LLC, Hagadone Hospitality Co., Objectors-Appellants.
Decision Date05 September 2019
Docket Number45383,Docket Nos. 45381,45384,45382

165 Idaho 517
448 P.3d 322

IN RE: CSRBA CASE NO. 49576 SUBCASE NO. 91-7755 (353 Consolidated Subcases).

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, Potlatch Trs Idaho, LLC, Benewah County Board of Commissioners, Buell Bros, Inc., Jack A. Buell, Eleanor L. Buell, City of Harrison, City of St. Maries, Whiteman Lumber Co., Inc., North Idaho Water Rights Group, Ratliff Family LLC #1, John T. McFaddin, Ronald D. Heyn, and William M. Green, Objectors,
and
Avista Corporation, Respondent.


United States of America, Claimant-Appellant on Appeal
v.
State of Idaho, Hecla Mining, North Idaho Water Rights Alliance, North West Property Owners Alliance, Coeur d'Alene Lakeshore Property Owners Association, Rathdrum Power, LLC, Hagadone Hospitality Co., Objectors-Respondents On Appeal
and
City of Coeur d'Alene, Harmon Property Owners Assn., North Kootenai Water & Sewer, Pinehurst Water District, Potlatch Forest Holdings, Inc., Potlatch Land & Lumber, LLC, Potlatch Trs Idaho, LLC, Benewah County Board of Commissioners, Buell Bros, Inc., Jack A. Buell, Eleanor L. Buell, City of Harrison, City of St. Maries, Whiteman Lumber Co., Inc., Coeur d'Alene Tribe, Ratliff Family LLC #1, John T. McFaddin, Ronald D. Heyn, and William M. Green, Objectors
and
Avista Corporation, Respondent.


Coeur d'Alene Tribe, Claimant-Appellant on Appeal
v.
State of Idaho, Hecla Mining, North Idaho Water Rights Alliance, North West Property Owners Alliance, Coeur d'Alene Lakeshore Property Owners Association, Rathdrum Power, LLC, Hagadone Hospitality Co., Objectors-Respondents,
and
City of Coeur d'Alene, Harmon Property Owners Assn., North Kootenai Water & Sewer, Pinehurst Water District, Potlatch Forest Holdings, Inc., Potlatch Land & Lumber, LLC, Potlatch Trs Idaho, LLC, Benewah County Board of Commissioners, Buell Bros, Inc., Jack A. Buell, Eleanor L. Buell, City of Harrison, City of St. Maries, Whiteman Lumber Co., Inc., United States of America, Ratliff Family LLC #1, John T. McFaddin, Ronald D. Heyn, and William M. Green, Objectors.

and
Avista Corporation, Respondent.


United States of America, and Coeur d'Alene Tribe, Claimants-Respondents,
v.
North Idaho Water Rights Alliance, North West Property Owners Alliance, Coeur d'Alene Lakeshore Property Owners Association, Rathdrum Power, LLC, Hagadone Hospitality Co., Objectors-Appellants.

Docket Nos. 45381
45382
45383
45384

Supreme Court of Idaho, Boise, November 2018 Term.

Filed: September 5, 2019
Petition for Rehearing Denied November 4, 2019


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.

STEGNER, Justice.

165 Idaho 525

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

448 P.3d 331
165 Idaho 526

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, 121 S.Ct. 2135, 150 L.Ed.2d 326 (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
448 P.3d 332
165 Idaho 527
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; [and] that their present reserve may be confirmed to them." In response, Congress authorized new negotiations to obtain the Tribe's agreement to cede land outside the borders of the 1873 reservation. In 1887, the Tribe agreed to cede

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