U.S. v. Adair
| Decision Date | 24 January 1984 |
| Docket Number | 80-3245,Nos. 80-3229,80-3246 and 80-3257,s. 80-3229 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, and Klamath Indian Tribe, Plaintiff-Intervenor-Appellee, v. Ben ADAIR, et al., Defendants-Appellants, and The State of Oregon, Defendant-Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard B. Collins, Kim Jerome Gottschalk, Boulder, Colo., for plaintiff-intervenor-appellee.
Stephen D. Dillon, Santa Fe, N.M., amicus curiae, for New Mexico.
Robert L. Klarquist, Dept. of Justice, Washington, D.C., for U.S.
Charles F. Adams, Jere M. Webb, Steol, Rives, Bole, Fraser & Wyse, Portland, Or., Theodore R. Conn, Lakeview, Or., Jan P. Londahl, Asst. Atty. Gen., Salem, Or., for State of Or.
Andrew P. Kerr, David Sweeney, Gilbertson, Brownstein, Sweeney, Kerr & Grim, Portland, Or., for defendants-appellants.
Appeal from the United States District Court for the District of Oregon.
Before KILKENNY, GOODWIN and FLETCHER, Circuit Judges.
In 1975 the United States filed suit in district court, pursuant to 28 U.S.C. Sec. 1345 (1976), for a declaration of water rights within an area whose boundaries roughly coincide with the former Klamath Indian Reservation. The suit named as defendants some 600 individual owners of land within the former reservation. The Klamath Tribe intervened as a plaintiff and the State of Oregon as a defendant.
After a trial on stipulated facts, supplemented by exhibits and affidavits, the district court issued an opinion declaring: (1) the Tribe and its members have water rights sufficient to maintain their treaty rights to hunt and fish on the former reservation; (2) individual Indian landowners have water rights, subject to the paramount rights of the Tribe, sufficient to maintain agriculture on their lands; and, (3) individual non-Indian landowners could acquire the water rights of their predecessor Indian landowners. The State of Oregon and the individual landowners filed a timely appeal from the district court decision, as did the United States and the Tribe.
Our jurisdiction rests on 28 U.S.C. Sec. 1291 (1976). We modify the district court's judgment in part, and as modified, affirm.
This suit concerns water rights in a portion of the Williamson River watershed. The Williamson River is part of the larger Klamath River watershed of Southern Oregon and Northern California. That part of the Williamson River watershed involved in this litigation drains an area of low, forested mountains, flat, grassy valleys and marshes east of the Cascade Range in south-central Oregon. The average rainfall in the area is low; summers are dry and winters are severe.
The major feature of the subject area is a large flat valley historically known as the Klamath Marsh. As the Williamson flows into the north end of this valley, it spreads out and soaks into the porous, pumice soil. During the wet months of the year, open water and aquatic vegetation cover the lower portion of the valley, the water to a depth of a few feet. The remainder of the valley is grassland. During dry summer months, as the water recedes, the grassland in the valley increases. This fluctuating marsh has been an important feeding and resting area for migratory ducks, geese and other waterfowl for thousands of years. In addition, the Marsh has always supported a variety of other indigenous wildlife. More recently, large parts of the Klamath Marsh have been used for grazing cattle.
The Klamath Indians have hunted, fished, and foraged in the area of the Klamath Marsh and upper Williamson River for over a thousand years. In 1864 the Klamath Tribe entered into a treaty with For 20 years, until 1887, the Klamath lived on their reservation under the terms of the 1864 treaty. In 1887 Congress passed the General Allotment Act, ch. 119, 24 Stat. 388 (1887) (current version at 25 U.S.C. Secs. 331-34, 348, 349, 381 (1976)), which fundamentally changed the nature of land ownership on the Klamath Reservation. Prior to the Act, the tribe held the reservation land in communal ownership. Pursuant to the terms of the Allotment Act, however, parcels of tribal land were granted to individual Indians in fee. Under the allotment system, approximately 25% of the original Klamath Reservation passed from tribal to individual Indian ownership. Over time, many of these individual allotments passed into non-Indian ownership.
the United States whereby it relinquished its aboriginal claim to some 12 million acres of land in return for a reservation of approximately 800,000 acres in south-central Oregon. This reservation included all of the Klamath Marsh as well as large forested tracts of the Williamson River watershed. Treaty between the United States of America and the Klamath and Moadoc Tribes and Yahooskin Band of Snake Indians, Oct. 14, 1864, 16 Stat. 707. Article I of the treaty gave the Klamath the exclusive right to hunt, fish, and gather on their reservation. Id.; Kimball v. Callahan, 493 F.2d 564, 566 (9th Cir.), cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974) (Kimball I.) Article II provided funds to help the Klamath adopt an agricultural way of life. 16 Stat. 708
The next major change in the pattern of land ownership on the Klamath Reservation occurred in 1954 when Congress approved the Klamath Termination Act. Act of Aug. 13, 1954, c. 732, Sec. 1, 68 Stat. 718 (codified at 25 U.S.C. Secs. 564-564w (1976)). Under this Act, tribe members could give up their interest in tribal property for cash. A large majority of the tribe chose to do this. In order to meet the cash obligation, in 1961, the United States purchased much of the former Klamath Reservation. The balance of the reservation was placed in a private trust for the remaining tribe members. See Kimball I, 493 F.2d at 567 (describing termination process); Klamath and Modoc Tribes v. United States, 436 F.2d 1008, 1010-13 (Ct.Cl.) (same), cert. denied, 404 U.S. 950, 92 S.Ct. 271, 30 L.Ed.2d 267 (1971). In 1973, to complete implementation of the Klamath Termination Act, the United States condemned most of the tribal land held in trust. Payments from the condemnation proceeding and sale of the remaining trust land went to Indians still enrolled in the tribe. This final distribution of assets essentially extinguished the original Klamath Reservation as a source of tribal property.
Even though the Klamath Tribe no longer holds any of its former reservation, the United States still holds title to much of the former reservation lands. In 1958 the Government purchased approximately 15,000 acres of the Klamath Marsh, the heart of the former reservation, to establish a migratory bird refuge under the jurisdiction of the United States Fish and Wildlife Service. Pub.L. No. 85-731, 72 Stat. 816 (1958) (). In 1961 and again in 1973, the Government purchased large forested portions of the former Klamath Reservation. This forest land became part of the Winema National Forest under the jurisdiction of the United States Forest Service. 25 U.S.C. Secs. 564w-1(d), 564w-2 (1976). By these two purchases, the Government became the owner of approximately 70% of the former reservation lands. The balance of the reservation is in private, Indian and non-Indian, ownership either through allotment or sale of reservation lands at the time of termination.
In September of 1975, the United States filed suit in federal district court seeking a declaration of water rights within the Williamson River drainage above the "reef" near Kirk, Oregon. 1 In January of 1976 This order, in listing the issues to be decided, significantly limited the nature of the federal proceeding. The district court did not agree to decide any question concerning the actual quantification of water rights. The questions listed fell within three basic categories: (1) whether water rights had been reserved for the use of Klamath reservation lands in the 1864 treaty; (2) whether such rights passed to the Government and to private persons who subsequently took fee title to reservation lands; and (3) what priorities should be accorded the water rights of each of the present owners and users of former reservation lands. Although the district court agreed to specify the proper method for measuring the reserved water rights originally attached to the reservation, it declined to quantify that measure. Rather, it declared that "[a]ctual quantification of the rights to the use of waters of the Williamson River and its tributaries within the litigation area will be left for judicial determination, consistent with the decree in this action, by the State of Oregon under the provisions of 43 U.S.C. Sec. 666 [the McCarran Amendment]."
the State of Oregon initiated formal proceedings under state law to determine water rights in the Klamath Basin including that portion of the Williamson River drainage covered by the Government's suit. See Or.Rev.Stat. Secs. 539.010-539.110 (1979). Later in 1976, the State of Oregon moved to intervene as a defendant in the United States suit. The Klamath Tribe also moved to intervene in the federal suit as a plaintiff. Both motions were granted. Subsequently, the State, joined by the individual defendants, moved for dismissal of the federal court water rights adjudication in favor of the state proceeding under the rule announced by the Supreme Court in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The district court in effect denied the defendants' motion to dismiss when on November 14, 1977, it entered a Pretrial Order to govern the conduct of the federal suit.
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