United States v. Ahtanum Irrigation District

• Citation: 330 F.2d 897
• Decision Date: 18 March 1964
• Docket Number: No. 17997.,17997.
• Parties: UNITED STATES of America, Appellant, v. AHTANUM IRRIGATION DISTRICT, a corporation, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

330 F.2d 897 (1964)

UNITED STATES of America, Appellant, v. AHTANUM IRRIGATION DISTRICT, a corporation, et al., Appellees.

No. 17997.

United States Court of Appeals Ninth Circuit.

March 18, 1964.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, William H. Veeder, and Edmund B. Clark, Attys., Dept. of Justice, Washington, D. C., for appellant.

Palmer, Willis & McArdle, and Fred C. Palmer, Gavin, Robinson, Kendrick & Redman, and John Gavin, Yakima, Wash., for appellees.

John J. O'Connell, Atty. Gen. for the State of Washington, Charles B. Roe, Jr., Asst. Atty. Gen., and E. P. Donnelly, Special Asst. Atty. Gen., Olympia, Wash., for appellee State of Washington.

James B. Hovis, Yakima, Wash., for the amicus curiae Yakima Tribe of Indians.

Before CHAMBERS, POPE and MERRILL, Circuit Judges.

POPE, Circuit Judge.

This case is here for the second time. On the first appeal from a judgment dismissing the action which was brought by the United States against numerous individuals claiming the right to use water from Ahtanum Creek in the State of Washington this court reversed the judgment and remanded the cause for trial upon answers to be filed and issues to be made in the court below. United States v. Ahtanum Irrigation District, 9 Cir., 236 F.2d 321 (1956).

We shall not here repeat much of what was said in our earlier decision as we assume complete familiarity with it and in consequence thereof an understanding of the facts which led to the prior appeal. As there noted, Ahtanum Creek constitutes a part of the north boundary of the Yakima Indian Reservation which was created by the Treaty with the Yakima Nation of Indians, June 9, 1855, 12 Stat. 951. This court held that by reason of the rules laid down in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340, and other decisions of this court applying the rule of the Winters case, including Conrad Inv. Co. v. United States, 9 Cir., 161 F. 829, and United States v. Walker River Co., 9 Cir., 104 F.2d 334, all of the waters of Ahtanum Creek, or so much thereof as could be beneficially used on the Indian Reservation were, by virtue of the treaty, reserved for use by the Indian tribe upon their lands.¹

The record then before us showed that by 1915, the Indian Irrigation Service had completed the construction of irrigation canals and ditches and other works sufficient to provide irrigation water for approximately 5000 acres on the Indian Reservation. We held that as of 1915, in the ordinary course, the Indian tribe and the owners and possessors of their land would be entitled to the right to the waters of Ahtanum Creek measured by the needs of the Indian irrigation project at that date.

The main problem presented by the previous record in the case arose out of the fact that in 1908 Chief Engineer Code of the Indian Bureau executed an agreement, dated May 9, 1908, between the United States, on the one hand, and a large number of white users of water from Ahtanum Creek, who owned and were located on lands north and outside of the Indian Reservation, on the other. The terms of that agreement are set out in our former opinion where it is discussed at great length. Its main provision purported to limit and define the claim of the United States, as trustee for the Indians of the waters of Ahtanum Creek, to 25 per cent of the natural flow of the Creek, and to assign 75 per cent of the natural flow to the white landowners who were parties to and executed the said agreement. All of them purported to claim rights in and to the waters of the stream. The agreement was approved by the Secretary of the Interior.

We upheld the validity of the agreement, basing our determination in that regard upon our construction of the agreement itself, and our determination that the white landowners may have acquired some rights in the waters of the stream. Dealing with the contention of the United States that the Secretary of the Interior was without power to make such an agreement, we held that the Secretary in making it was undertaking to "deal with certain relations between the Indians on the one hand and their white neighbors on the other."²

We went on to say: "The rights of the white settlers to the use of the waters were subordinate to the rights of the Indians, but they were not nonexistent. Until the Indians were able to make use of the waters there was no legal obstacle to the use of those waters by the white settlers. And after the Indian irrigation works were completed, there would still be the right of the non-Indian appropriators to make use of any surplus available within the stream." 236 F.2d at 335. We think this made it plain that in executing the 1908 agreement, and in determining whether there was authority to make it, the Secretary necessarily considered, as did we, that the white settlers had water rights (necessarily acquired under local law) which, while subordinate to the rights of the Indians, were still "not nonexistent".

We held that the action should not have been dismissed since the suit was one to procure an adjudication of water rights and was "in its purpose and effect one to quiet title to realty" and that it presented claims and issues which required the court to determine and adjudicate the extent of the rights of the parties with respect to the waters of the stream. Obviously those rights, so far as the Indians were concerned, arose from the provisions of the treaty, and so far as the rights of the defendants were concerned, arose under the laws of the State of Washington. We said that the defendants should have been required to appear by answer and set forth "their claims of right to the use of the waters of the stream"; we criticized the answers previously filed for not having disclosed "who these water users are, what lands they claim and have the right to irrigate, or how they deraign their title to any water rights" and directed that on remand the court must "determine and adjudicate the respective rights of the parties, during which defendants must be required to show and disclose their rights and titles", and that appropriate answers must be required from all defendants.

We also proceeded to construe the meaning of the agreement of 1908 by way of giving directions as to the issues and questions to be determined upon remand. We shall have occasion to refer to these hereafter.

We assumed that on remand of this case the defendants would by answer set forth their claimed rights to the use of water, how those rights were deraigned, and what lands they claimed the right to irrigate; it was plain that the only water rights which the court would be required to measure and ascertain would be the water rights of the specific individuals who entered into the 1908 agreement. As we said, that agreement was not made between Engineer Code and all citizens of the State of Washington — it was made with specified individuals — and that their right to the use of 75 per cent of the waters must have been limited to their need as of 1908.

At the trial below the defendants proceeded initially to conform to the directions given by the court. They filed numerous answers setting forth, as we had directed, "who these water users are, the lands they claim to have the right to irrigate, and how they deraigned their titles to any water rights," and generally set forth their claims to water rights in the stream as to the various dates of acquisition.³

To support the allegations of these answers the defendants called numerous witnesses who testified respecting the use of the waters of Ahtanum Creek upon the various tracts of land involved as of the year 1908, when the agreement was executed.⁴ These were witnesses who were familiar with the land in question and Ahtanum Creek in the years 1907-1908 — generally neighbors residing in the vicinity of the property at that time and who testified that they knew about the irrigation of the lands set forth in the answers.⁵

Although a very substantial amount of similar testimony was offered with respect to the lands owned or claimed by the various defendants, and although the trial court found which lands were actually using water in 1908, the acreage irrigated on each parcel, and the duty of water, it made no formal conclusions as to the extent or validity of the water rights of defendants or their predecessors as of 1908. While there was no testimony as to the dates when water was initially diverted for these lands, the conclusion seems plain that if these lands were, as found, actually being irrigated in 1908, their owners then had acquired water rights, subject, of course, to the rights of the Indians.

On remand the case was referred to a special master who made a report and recommended findings which in general were approved and accepted by the trial court. The master made no determination as to water rights as such, or as to the existence or validity of such rights under the Washington law, whether based on appropriation or by virtue of riparian location.

It appears that the master, disregarding our prior admonition that the water rights of these owners claimed as of 1908 must be set up in the answer and determined by the court, was unduly impressed by the language which we used to the effect that these water rights are necessarily limited by the needs of the owners as of 1908. In no manner did our former opinion state that the rights of the defendants were as great as their needs for water. Our reference to needs was a reference to a limitation upon the extent of the water rights.

Obviously we contemplated that in each case the defendant must establish that he had a right for a stated quantity or amount of water; that he must establish how he acquired it; and that this in turn could not exceed his needs. The report accompanying the master's proposed findings discloses his misapprehension of our holding. Thus the report states: "This conclusion refers to need, of course; it is not believed there was...