U.S. v. Adair, No. CV 75-914-PA.

• Decision Date: 27 February 2002
• Docket Number: No. CV 75-914-PA.
• Citation: 187 F.Supp.2d 1273
• Parties: UNITED STATES, Plaintiff, and Klamath Indian Tribes, Plaintiff-Intervenor, v. Ben ADAIR, et al., Defendants, and State of Oregon, Defendant-Intervenor.
• Court: U.S. District Court — District of Oregon

187 F.Supp.2d 1273

UNITED STATES, Plaintiff, and Klamath Indian Tribes, Plaintiff-Intervenor, v. Ben ADAIR, et al., Defendants, and State of Oregon, Defendant-Intervenor.

No. CV 75-914-PA.

United States District Court, D. Oregon.

February 27, 2002.

As Amended April 9, 2002.

Michael W. Mosman, United States Attorney, James J. Sutherland, Assistant U.S. Attorney, District of Oregon, Eugene, OR, David W. Harder, United States Department of Justice, Denver, CO, for Plaintiff United States.

Carl V. Ullman, Attorney at Law, The Klamath Tribes Water Adjudication Project, Chiloquin, OR, Walter R. Echo-Hawk, K. Jerome Gottschalk, Native American Rights Fund, Boulder, CO, for Plaintiff-Intervenor Klamath Tribes.

Carol Dehaven Skerjanec, Attorney at Law, Vale, OR, for Defendants Kenneth J. Hufford, Leslie Hufford, Peggy Marenco, Hart Estate Investment Company, Boyd P. Braren, Boyd P. Braren Trust, John P. Mosby and Marilyn M. Mosby.

Hardy Myers, Attorney General, David E. Leith, Assistant Attorney General, Salem, OR, for Defendant-Intervenor.

AMENDED OPINION & ORDER

PANNER, District Judge.

I. BACKGROUND

In this action, the Court declared the existence, nature, scope and priority of the reserved Indian water rights of the Klamath Tribes, but left the quantification of those rights to the State of Oregon's Klamath Basin Adjudication ("KBA"). See, United States v. Adair, 478 F.Supp. 336 (D.Or.1979) ("Adair I"). The Court entered a Declaratory Judgment on April 21, 1980, which was affirmed in United States v. Adair, 723 F.2d 1394 (9th Cir.1983) ("Adair II"), cert. denied sub nom, Oregon v. United States, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). This Court retained continuing jurisdiction of this matter "for the purpose of enabling the parties or their successors in interest to apply to this court at any time for such orders and directions as may be necessary or appropriate for the construction and effectuation of this judgment, for the modification of any of the provisions hereof, and for the enforcement of compliance with this judgment." Declaratory Judgment, ¶ 15.

Pursuant to Paragraph 15 of the Declaratory Judgment, Plaintiffs filed motions for exercise of this Court's continuing jurisdiction. A dispute has arisen among the parties in the KBA over the proper interpretation of the Declaratory Judgment and how to effectuate rulings in this case to quantify the Tribes' water rights in the state proceeding. The motions were granted, and this Court is exercising its continuing jurisdiction to determine two narrow issues: (1) whether the Klamath Tribes have a water right to support reserved gathering rights; and (2) whether and to what extent the "moderate living" standard applies in quantifying the Tribes' water rights.¹

II. DISCUSSION

A. The Gathering Right

The Klamath Tribes have reserved gathering rights, along with supporting water rights. The 1980 Declaratory Judgment explicitly holds that the tribal water right included water for gathering purposes. Paragraph 3 of the Declaratory Judgment provides: "In creating the Reservation by treaty in 1864 the Government reserved land from the public domain to preserve the Tribe's hunting, fishing, trapping and gathering rights and to encourage agriculture. The treaty granted the Tribe an implied right to as much water on the Reservation as was necessary to fulfill these purposes." Paragraph 11 of the Declaratory Judgment provides: "The priority date of the Tribe's hunting, fishing, trapping and gathering rights, and their water rights necessary to preserve these hunting, fishing, trapping and gathering rights is time immemorial." The Court could not have been more clear in articulating its holding that gathering rights, and supporting water rights, are reserved to the Tribe. Moreover, the plain language of the 1864 Treaty, and a commonsense reading of Adair I & Adair II, and United States v. OWRD, 774 F.Supp. 1568 (D.Or.1991), aff'd. and modified, 44 F.3d 758 (9th Cir.1994), support this position. The Ninth Circuit's use of "hunting and fishing" language as a shorthand phrase shall not be construed to eliminate the Tribes' right to water for gathering purposes. There is nothing in Adair I or Adair II that is inconsistent with the Declaratory Judgment on this issue. Accordingly, the Klamath Tribes' water rights include a right to water to support resources the Tribes gather, in addition to the resources they hunt, fish, and trap.

B. Legal Standard for Measuring Water Rights

The parties dispute how to apply the legal standard for quantifying the Tribes' water rights. The Oregon Department of Justice ("ODOJ") attempted to provide legal advice to the Adjudicator in the KBA on this issue, but admitted it was uncertain how to apply the relevant standards. The parties dispute not only what standard should be applied, but how it should be applied, and which party has the burden of proof. The primary dispute revolves around applying the "moderate living" doctrine announced in Adair II. The parties also struggle to interpret the phrase "as currently exercised" from Adair II.

At the outset, it is worth noting that any argument that would have the practical effect of quantifying the Tribes' reserved water right at a level that would not support productive habitat is rejected. That would result in abrogating the Tribes' treaty rights to hunt, fish, gather, and trap on the reservation lands. The Ninth Circuit has recently confirmed, in the context of the Klamath Tribes' water rights, that "[o]nly Congress can abrogate Indian treaty rights, see United States v. Dion, 476 U.S. 734, 738, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986), and it has not done so here." Klamath Water Users Prot. Ass'n v. Patterson, 204 F.3d 1206, 1213 (9th Cir.1999), cert. denied, 531 U.S. 812, 121 S.Ct. 44, 148 L.Ed.2d 14 (2000). Moreover, both Adair I and Adair II announce that water must be maintained at some level on the land to fulfill the purpose of the reservation. In Adair II, the Ninth Circuit could not have been more clear that it intended to "prevent other appropriators from depleting the streams and waters below a protected level in any area where the non-consumptive [water] right applies." Adair II, 723 F.2d at 1411.

With these arguments put to rest, this Court must reconcile the quantification standard announced in Adair I, with the "moderate living" standard announced in Adair II. The two standards are not in conflict and what Defendants have apparently lost sight of is that the initial quantification of water rights is a separate analysis from the "moderate living" standard. The adjudicator is called upon to first quantify the Tribes' water rights to establish an allocation of water to fulfill the purpose of the reservation. Only after the quantification stage can the "moderate living" doctrine be considered to possibly adjust the quantification.

1. Step One—Quantifying the Water Right

Adair I announced the legal standard for quantifying the Tribes' water rights by holding:

The Indians are still entitled to as much water on the Reservation lands as they need to protect their hunting and fishing rights. If the preservation of these rights requires that the Marsh be maintained as wetlands and that the forest be maintained on a sustained-yield basis, then the Indians are entitled to whatever water is necessary to achieve those results.

Adair I, 478 F.Supp. at 345-46. Adair II and the "moderate living" standard did not change this threshold quantification standard.

The quantification standard does not involve an analysis of any actual beneficial use of the water, or any actual harvest of treaty protected resources on a fixed day or time in history. Adair II, 723 F.2d at 1406 n. 11; see also Arizona v. California, 373 U.S. 546, 598, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963) ("Arizona I") (reserved water rights measured by "practicably irrigable acres" to fulfill treaty purposes, and not based upon number of Indians on reservation or actual use of land). Instead, the focus must be on fulfilling the purpose of the reservation. Id.

Adair II held that there were two primary purposes of the reservation and accompanying implied water rights. One was to support Klamath agriculture, and the other, which is at issue here, was "for the purpose of maintaining the Tribe's treaty right to hunt and fish on reservation lands." Adair II, 723 F.2d at 1409. In order to provide the Tribe an opportunity to continue hunting and fishing on the reservation lands, it is axiomatic that there be sufficient water to support productive habitat so there may be game to hunt, and fish to fish, as well as edible plants to gather. As Adair I announced, this may require that the "Marsh be maintained as wetlands" and that the "forest be maintained on a sustained-yield basis." Adair I, at 345-46. Quantifying the reserved water right so that productive habitat can be supported is the only meaningful way to measure the water requirements to meet the goal of fulfilling the purpose of the reservation.

Defendants interpret the rulings in this case to hold that Plaintiffs are "entitled to the minimum amount of water necessary to protect the Tribes' hunting and fishing water rights," and that "the minimum amount necessary is a factual determination that must be made based upon the material supplied by the claimants." Although there seems to be no dispute that Plaintiffs carry the initial burden of proving that a certain amount of water is needed to support productive habitat, the assertion that the tribes are entitled only to some "minimum amount" of water is an incorrect statement of the law. In quantifying the right under Adair I, the Tribe is entitled to "whatever water is necessary to achieve" the result of supporting productive habitat. Adair I, 478 F.Supp. at 346. Once the adjudicator has quantified the Tribes' water rights under the principles announced in Adair I, the moderate living standard may be considered.

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