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August 23, 1982

UNITED STATES of America, Plaintiff; Spokane Tribe of Indians, Plaintiff-in-Intervention,
Barbara J. ANDERSON, et al., Defendants

The opinion of the court was delivered by: QUACKENBUSH


 This action, filed by the United States in 1972, seeks an adjudication of water rights in the Chamokane Stream System which is located in the northeastern portion of the State of Washington. The government acted on its own behalf and as trustee for the Spokane Tribe of Indians. The court permitted the Tribe to intervene as plaintiff. Defendants include the State of Washington (Department of Ecology and Department of Natural Resources), Dawn Mining Co., Boise Cascade, and all other persons who claim an interest in the water of Chamokane Creek, its tributaries or its ground water basin. *fn1" Jurisdiction lies in this court under 28 U.S.C. § 1345.

 The case was tried in two segments before the Hon. Marshall A. Neill in 1974 and 1978. On July 23, 1979, Judge Neill filed his Memorandum Opinion and Order (Ct. Rec. 189); judgment was entered September 12, 1979 (Ct.Rec. 196). Judge Neill died October 6, 1979.

 Shortly thereafter, five of the parties filed motions to amend. There are two later motions to amend or supplement the judgment (Ct.Rec. 220, 227). Argument was heard before Magistrate Smithmoore P. Myers on February 29, 1980. All of the parties, pursuant to instructions of Magistrate Myers, submitted proposed changes in the Memorandum Opinion and Order and in the Judgment (Ct.Rec. 207, 209, 210, 211, 212 and 214) after which time oral argument was again heard. Magistrate Myers considered each of the proposals and submitted his Report and Recommendation on December 21, 1981 (Ct.Rec. 234, 235). Each party, except the United States has filed objections and moved to amend the Judgment (Ct.Rec. 237, 243, 244, 246, 248 and 249). The matter was then referred to this court for a final determination of the various motions. This court, by letter dated July 16, 1982, sought clarification from the parties as to their positions with regard to certain issues. The time for further response having passed, this court proceeds to address the issues before it.


 All parties to the litigation claim water in the Chamokane Creek area, either based upon Tribal reserved water rights or state appropriative rights, and the plaintiffs seek other relief in aid of their asserted water rights. The first section of this memorandum includes a description of the Chamokane Creek basin. Next, as in Judge Neill's memorandum, the parties' claims concerning water are discussed and determined in the following order: first, plaintiffs' claim to water, including the Indians' reserved water rights claims and the United States' water claim; second, defendants' claims to water pursuant to state law; and third, the plaintiffs' other requested relief, including request for permission to modify the judgment, and request to enjoin the state from exercising jurisdiction over water rights within the basin.




 As stated in Judge Neill's findings, Chamokane Creek has a drainage area of 178 square miles. The headwaters of the creek lie in the Huckleberry Mountains north of the Spokane Indian Reservation. The creek flows eastward through the Camas Valley in what is known as the Upper Chamokane area, carrying runoff from the mountains and precipitation which finds its way into the surface flow. Near the town of Springdale, Washington, the creek turns southeastward. At the northern boundary of the Spokane Indian Reservation, the creek flows south and southwesterly through the Mid-Chamokane area (Walter's Prairie) to Chamokane Creek Falls. The creek flows continuously in the northernmost two-mile section of the Mid-Chamokane area, and then for the next five miles is intermittent and is dry during the summer. At the end of the five mile intermittent-flow area, just above Ford, Washington, and for the next three miles, massive springs with a regular flow throughout the year feed the creek which flows to the falls. The groundwater flow from the basin drainage system surfaces either at the springs or at the falls. The water then flows from the falls another 1.5 miles to the mouth of the creek, where it joins the Spokane River. The area between the falls and the mouth of the creek is known as the Lower Chamokane area.

 Judge Neill also found the creek and the groundwater system to be interrelated. Water enters the Chamokane Creek basin in the form of precipitation. In the Upper Chamokane area, the precipitation absorbed into the ground area becomes part of an underground reservoir unconnected to the Chamokane drainage system. The surface flow of the creek from the Upper Chamokane area which reaches the Mid-Chamokane region does become part of the Chamokane system, either by entering the basin groundwater system as recharge or by remaining as surface flow and exiting over the falls, usually as spring floods. Precipitation falling on the Mid-Chamokane region which is not lost by evaporation or evapotranspiration also becomes part of the groundwater system or flows over the falls as spring surface runoff.

 The recharge to the basin aquifer, which comes from precipitation, varies from year to year. Groundwater withdrawals in the Upper Chamokane region have no impact upon the creek flow below the falls because groundwater in this area is part of a separate aquifer. Groundwater withdrawals in the Mid-Chamokane area, however, eventually do reduce the lower creek flow. This flow reduction occurs less immediately when the water removal occurs a greater distance upstream from the falls. Although the effect of groundwater removal near the springs sometimes is immediate, the effect of groundwater removal near the northern boundary of the reservation can be delayed up to two years.


 A. The Nature of the Indians' Reserve Water Rights :

 When the United States has set aside a reservation of land, it impliedly reserves water then unappropriated in sufficient quantity to accomplish the purposes of the federal reservation. United States v. New Mexico, 438 U.S. 696, 698-700, 98 S. Ct. 3012, 3013-3014, 57 L. Ed. 2d 1052 (1978); Winters v. United States, 207 U.S. 564, 577, 28 S. Ct. 207, 211, 52 L. Ed. 340 (1908). "The reservation is implied, rather than express . . . because of the history of congressional intent in the field of federal-state jurisdiction with respect to water". United States v. New Mexico, 438 U.S. at 701-02, 98 S. Ct. at 3015. Indian tribes hold reserved water rights under the Winters doctrine. Winters v. United States, 207 U.S. at 564, 28 S. Ct. at 207.

 The Winter's doctrine is antithetical to the prior appropriation rights ripen through actual diversion of and continued beneficial use of waters from their natural channels. Since these rights are not appurtenant to the land they can be filed separately. They are, however, subject to loss through non-use. Priority relates back to the specific date and hour of appropriation. There is no proration. Therefore, in times of shortage, the prior appropriator's rights are filled before junior holders are permitted to take water. See United States v. Big Bend Transit Co., 42 F. Supp. 459 (E.D.WA 1941).

 In contrast to appropriative rights created under state law, Indian Winters rights implicitly reserve to the Tribe a paramount right to the use of as much water which comes in contact with their reservations as is needed to fulfill the primary purposes for which the land was reserved. Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir.1981) cert. denied, 454 U.S. 1092, 102 S. Ct. 657, 70 L. Ed. 2d 630 (1981). This is so regardless of whether the water was actually used at the time of the creation of the Reservation, and priority of rights relates back to the date of formation. Accordingly, actual diversion and beneficial use does not create the Tribe's reserved right and disuse does not destroy it. In other words, Winters rights are subject only to private appropriative rights which have vested prior to the establishment of the reservation, and which have not been subsequently lost through abandonment or non-use. See Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963); United States v. Ahtanum Irrigation District, 236 F.2d 321 (9th Cir.1956), cert. denied, 352 U.S. 988, 77 S. Ct. 386, 1 L. Ed. 2d 367 (1957).

 1. Reserved Water Rights for the Fishery.

 The plaintiffs correctly claim that one of the purposes for creating the Spokane Indian Reservation was to insure the Spokane Indians access to fishing areas and to fish for food. See, Ct.Rec. 189, at 9. Therefore, under the Winters doctrine the Tribe has the reserved right to sufficient water to preserve fishing in the Chamokane Creek. See, e.g., United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089 (1905). The quantity of water needed to carry out the reserved fishing purposes is related to water temperature rather than to simply minimum flow. Ct. Rec. 189, at 10. The volume of water needed to preserve fishing in the creek below Chamokane Falls, was a furiously disputed issue at trial. Judge Neill held that the flow from the Falls into Lower Chamokane Creek must be sufficient to maintain the water temperature at 68 deg. F or below, and in any event, at least 20 C.F.S. The Tribe has moved to amend this finding contending that current evidence shows the 20 C.F.S. flow is inadequate to maintain the required temperature, and that the minimum flow should be 30 C.F.S. Ct. Rec. 237 at 1-2. Magistrate Myers recommended that no changes be made regarding allocation of water to preserve the Chamokane Fisheries, and this court agrees with the recommendation. It is clear that a flow of 20 C.F.S. would not always maintain the water temperature at 68 deg. or below. A flow of 30 C.F.S., on the other hand, will not always be required to keep the water temperature at that point. Thus, if the appointed Water Master finds, as a result of his experience, that a higher flow is necessary at any time to accomplish the purpose, he is empowered to make the adjustment. If, however, over a period of time, flow and temperature records demonstrate that 20 C.F.S. flow is not realistically related to the maintenance of water temperature at 68 deg. or below, the judgment is subject to modification. Therefore, Judge Neill's factual determination and allocation of water for the Chamokane Fisheries should not be disturbed.

 2. Recharge Storage Capacity of the Aquifer.

 The Tribe has moved the court to amend Judge Neill's findings regarding the Chamokane drainage system. See Ct.Rec. 193. The Tribe agrees with the finding that the average output of the Chamokane drainage system is 35,000 acre-feet per year. The Tribe requests that the finding additionally reflect that the average of 16,000 acre-feet are lost in the annual runoff, and that the recharge storage capacity of the aquifer is approximately 19,000 acre-feet, with an annual flow out of the springs of about 21,000 acre-feet. Magistrate Myers concluded that adding these additional findings to the amended memorandum and judgment is ...

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