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In re Determination of Rights to Use of Surface Waters of Yakima River Drainage Basin

April 24, 1997

IN THE MATTER OF THE DETERMINATION OF THE RIGHTS TO THE USE OF THE SURFACE WATERS OF THE YAKIMA RIVER DRAINAGE BASIN, IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 90.03, REVISED CODE OF WASHINGTON, THE STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, PLAINTIFF/RESPONDENT/CROSS APPELLANT,
v.
IRRIGATION DISTRICT, BENTON IRRIGATION DISTRICT, BROADGAUGE DITCH COMPANY, CASCADE IRRIGATION DISTRICT, COLUMBIA IRRIGATION DISTRICT, ELLENSBURG WATER COMPANY, FOWLER DITCH COMPANY, FRUITVALE-SCHANNO DITCH COMPANY, CITY OF GRANDVIEW, GRANDVIEW IRRIGATION DISTRICT, GRANGER IRRIGATION DISTRICT, HOME IRRIGATION DISTRICT, CITY OF GRANGER, KIONA IRRIGATION DISTRICT, KONEWOCK DITCH COMPANY, TOWN OF MABTON, MOXEE DITCH AND MOXEE DITCH SUB A, MOXEE-HUBBARD DITCH COMPANY, NACHES-SELAH IRRIGATION DISTRICT, NEW SCHANNO DITCH COMPANY, OLD UNION DITCH COMPANY, OUTLOOK IRRIGATION DISTRICT, PIETY-FLAT DITCH COMPANY, CITY OF PROSSER, PROSSER FALLS LAND & POWER CO., PROSSER IRRIGATION DISTRICT, R. S. & C. IRRIGATION COMPANY, CITY OF RICHLAND, SELAH-MOXEE IRRIGATION DISTRICT, SNIPES MOUNTAIN IRRIGATION DISTRICT, SPECIAL WARREN ACT TRACTS (MICHELL & RANK), SUNNYSIDE VALLEY IRRIGATION DISTRICT, CITY OF SUNNYSIDE, UNION GAP IRRIGATION DISTRICT, WEST SIDE IRRIGATION COMPANY, YAKIMA VALLEY CANAL COMPANY, CITY OF ZILLAH, AND ZILLAH IRRIGATION DISTRICT, DEFENDANTS, YAKIMA-TIETON IRRIGATION DISTRICT, KENNEWICK IRRIGATION DISTRICT, KITTITAS RECLAMATION DISTRICT, ROZA IRRIGATION DISTRICT, SUNNYSIDE DIVISION BOARD OF CONTROL, UNITED STATES OF AMERICA, CITY OF YAKIMA, AND YAKIMA RESERVATION IRRIGATION DISTRICT, DEFENDANTS/APPELLANTS, AND YAKAMA INDIAN NATION, DEFENDANT/CROSS APPELLANT.



Appeal from Superior Court of Yakima County. Docket No: 772014845. Judgment or order under review. Date filed: 09/14/95. Judge signing: Hon. Walter A. Stauffacher.

Authored by James M. Dolliver. Concurring: Charles Z. Smith, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders. Dissenting: Richard P. Guy, Charles W. Johnson, Barbara Durham.

The opinion of the court was delivered by: Dolliver

En Banc

DOLLIVER, J.--In a direct appeal, the Yakima-Tieton Irrigation District (YTID) challenges several aspects of the trial court's ruling on YTID's water right. The Department of Ecology and numerous other parties have cross-appealed.

This direct appeal arises from a general adjudication of water rights in the Yakima River Basin that began in 1977. Other matters concerning the adjudication have been before this court two previous times. In the first appeal, this court allowed the general adjudication to proceed even though personal service of process had not been served on over 40,000 individual parties who used water from the basin. Instead, the court approved service on the 4,000-plus water distributing entities who serve the individual users. Department of Ecology v. Acquavella, 100 Wash. 2d 651, 674 P.2d 160 (1983) (Acquavella I). The second appeal involved the quantity of water reserved by the federal government for the Yakima Indian Nation. Department of Ecology v. Yakima Reservation Irrigation Dist., 121 Wash. 2d 257, 850 P.2d 1306 (1993) (Acquavella II). This third appeal involves the trial court's water award to just one of many water claimants, the Yakima-Tieton Irrigation District.

Yakima River Basin History The Reclamation Act, 43 U.S.C. sec. 371 (originally enacted as Act of June 17, 1902, ch. 1093, 32 Stat. 388), authorized the Secretary of the Interior to construct large federal irrigation projects to reclaim and render productive arid and semi-arid lands. The projects set up under the Reclamation Act were to be operated by the Bureau of Reclamation (BOR). In carrying out the provisions of the Act, the Secretary had to comply with applicable state laws. 43 U.S.C. sec. 383. Because of this requirement, the Secretary would not undertake any project in a state without the approval of that state's legislature.

In 1905 the Washington State Legislature passed laws expressly allowing the United States to acquire lands and water rights in order to construct and operate reclamation projects. Laws of 1905, ch. 88, at 180 (codified in RCW 90.40 -- any reference to acts done under the authority of these 1905 laws will cite the current codification of the laws). In that same year, pursuant to RCW 90.40.010 and RCW 90.40.030, the United States began to withdraw all unappropriated waters in the Yakima River Basin. This federal withdrawal was extended numerous times until 1951, at which point any remaining unappropriated waters reverted back to the state. Any water rights perfected during the period of federal withdrawal date back to the initial application in 1905. RCW 90.40.040.

The Yakima-Tieton Irrigation District was formed in 1918, and it is one of the several districts that receives its water from reservoirs constructed and maintained by the United States pursuant to the Reclamation Act. In 1939, the United States and two irrigation districts initiated a lawsuit to determine how to recover certain costs arising from the operation of the Yakima Project. The defendants cross-claimed for a general adjudication of water rights in the Yakima Basin, and in 1945, to avoid further litigation, the parties signed a Consent Decree which set out the United States' obligations -- in terms of quantity of water it had to deliver -- to each of the parties involved. Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., Civil Action No. 21 (E.D. Wash. S. Div. Jan. 31, 1945). The United States District Court for Eastern Washington has maintained jurisdiction over issues arising from the 1945 Consent Decree. See, e.g., Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 626 F.2d 95 (9th Cir. 1980), cert. denied, 449 U.S. 1079, 66 L. Ed. 2d 802, 101 S. Ct. 861 (1981); Schinmann v. United States, 618 F. Supp. 1030 (E.D. Wash. 1985), aff'd mem., 811 F.2d 1508 (9th Cir.), cert. denied, 484 U.S. 924 (1987).

YTID was a party to the 1945 Consent Decree. Under the decree, YTID's primary water right was listed as 96,000 acre feet (a.f.) for annual use during the irrigation season, and YTID was also assigned another 18,000 a.f., which was transferred from another irrigation district that did not need the water. The decree stated the BOR would sell the 18,000 a.f. to YTID. The decree placed no restrictions on the 18,000 a.f. awarded to YTID.

Pursuant to the 1945 Consent Decree, YTID amended its contract with the BOR. The contract mentioned that the amount of water delivered to YTID in prior years had been insufficient, and the contract also noted YTID's desire to have an additional water supply in low water years. The contract then granted the 18,000 a.f. to YTID, on the condition that delivery of the 18,000 a.f., in addition to YTID's normal entitlement of 96,000 a.f., did not exceed the safe carrying capacity of YTID's canals. The contract required YTID to pay the construction costs for storage works to hold the 18,000 a.f., and YTID also had to pay an annual maintenance fee for the use of the water. YTID has never been able to accept delivery of 114,000 a.f. (96,000 plus 18,000) because that quantity of water could not be delivered without exceeding the safe carrying capacity of YTID's canals.

The United States ended its withdrawal of water under RCW 90.40.030 in 1951. Afterward, the BOR filed a surface water application with the Department of Ecology's predecessor, the Department of Conservation and Development, Division of Water Resources, for the use of irrigation water in the Tieton District. The State agency determined YTID's water use pre-dated the 1917 Water Code, such that a water permit was unnecessary to maintain YTID's water usage.

In 1974, pursuant to RCW 90.14.041, the BOR filed a water rights claim for waters used by YTID. It is unknown if the Department of Ecology (DOE) ruled on the claim prior to the initiation of this adjudication in 1977.

The adjudication and YTID's award For a detailed history of the adjudication, see Acquavella I and II. Prior to ruling on any of the claimants' water rights, the trial court divided the water claimants into four different categories. See Acquavella II, 121 Wash. 2d at 262. YTID is classified as a major claimant with state-based water rights. In 1992 the trial court made several threshold rulings as to how the major claimants' water rights were to be determined. Clerk's Papers at 371-408; Clerk's Papers at 409-12. DOE sought direct review of those threshold rulings, but this court denied review. Department of Ecology v. Ellensburg Water Co., No. 59630-1 (Jan. 15, 1993) (Commissioner's Ruling Den. Mot. For Discretionary Review). The trial court conducted further proceedings to hear evidence on YTID's water claims, after which the court ruled on YTID's entitlement. The ruling specifies the quantity of YTID's water entitlement, and it also describes the land to which the water right is appurtenant.

In determining the quantity of water awarded to YTID, the trial court gave much deference to the amount specified in the 1945 Consent Decree. As mentioned above, the Consent Decree and YTID's contract listed YTID's water rights as 114,000 a.f. during the irrigation season, but only to the extent that YTID could accept delivery of the water without exceeding the safe carrying capacity of YTID's canals. The trial court determined that YTID could, at most, carry 110,700 a.f. safely in its canals. The trial court then awarded YTID the 110,700 a.f. for the irrigation season. Two assignments of error have been raised pertaining to the quantification aspect of the trial court's order.

Besides specifying the quantity of a claimant's water entitlement, a water rights certificate resulting from a general adjudication must describe "the land to which said water right is appurtenant . . . ." RCW 90.03.240. In accordance with this requirement, the trial court entered a finding of fact and order describing YTID's water right as being appurtenant to 27,900 irrigable acres. The trial court also stated that YTID's "current irrigable acreage is subject to change based on future reclassification of the Bureau of Reclamation." Clerk's Papers at 764. Two assignments of error have been raised as to the classification of acreage. ISSUES PRESENTED FOR REVIEW:

YTID assigns two errors to the trial court's orders. First, YTID does not dispute the total quantity of water awarded, but YTID argues 18,000 a.f. of the amount awarded should have been classified specifically as standby/reserve water. If the water is classified as standby/reserve, according to YTID's argument, then the water will not be subject to relinquishment through nonuse of five years or more. See RCW 90.14.140(2)(b). This first assignment of error will be referred to as the Standby/Reserve Issue. YTID's second error challenges the appropriateness of the statement, quoted in the previous paragraph, concerning the BOR's reclassification of irrigable acres within YTID. This will be referred to as the Reclassification Issue.

DOE assigns two errors to the trial court's order. First, DOE challenges the trial court's reliance on the 1945 Consent Decree as evidence of YTID's water right. DOE claims the trial court should have established YTID's right by looking at actual, past beneficial use of the water; and DOE asserts YTID's past actual use does not support the quantity awarded. This will be referred to as the Beneficial Use Issue. The question of whether YTID may have relinquished any water by reason of nonuse will also be addressed under the beneficial use section. DOE's second assignment of error challenges the trial court's use of the irrigable acres category instead of the actual irrigated acres category. DOE alleges YTID's water right should be limited by the number of actual acres previously irrigated. This second assignment of error will be referred to as the Irrigable/Irrigated Issue.

To sum up, four central issues are properly before this court on appeal. They are listed in the order in which they will be discussed:

1. Beneficial Use and Relinquishment;

2. Standby/Reserve;

3. Irrigable/Irrigated; and 4. Reclassification of ...


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