CHAPTER 17 TRIBAL RESERVED WATER RIGHTS: A TALE OF TWO BASINS -- LITIGATION VERSUS NEGOTIATION OF RESERVED WATER COMPACTS AND HOW DIFFERENT APPROACHES AFFECT MINERAL DEVELOPMENT AND WATER AVAILABILITY ON INDIAN LAND
| Jurisdiction | United States |
(Nov 2005)
TRIBAL RESERVED WATER RIGHTS: A TALE OF TWO BASINS -- LITIGATION VERSUS NEGOTIATION OF RESERVED WATER COMPACTS AND HOW DIFFERENT APPROACHES AFFECT MINERAL DEVELOPMENT AND WATER AVAILABILITY ON INDIAN LAND
Office of the Solicitor -- Rocky Mountain Region
Department of the Interior
Billings, Montana
Richard K. Aldrich is the Field Solicitor for the Department of Interior in Billings, Montana and he has been with the Field Solicitor's Office for over thirty years. He manages a small legal office for the Department, representing primarily the Bureau of Indian Affairs, Bureau of Reclamation, Bureau of Land Management, the National Park Service, and the Fish and Wildlife Service in all or parts of nine states from the Canadian Border to the Gulf of Mexico. In addition to managing and supervising the Field Office, he practices natural resources law and he has worked extensively in water rights litigation, negotiation, and administration in Montana, Wyoming, and Colorado.
He is the Solicitor's representative and chair of several reserved water rights negotiations in Montana and Wyoming, and he has assisted in successfully settling several Indian and non-Indian federal reserved water rights matters. In this capacity, he has successfully "carried water on both shoulders" for Indian and non-Indian water rights. He also is the Solicitor's representative on several reserved water rights settlement implementation teams and on several teams negotiating disputed Tribal land claims. He recently completed a detail of nearly one year to the Secretary of the Interior's Indian Water Rights Office as Special Counsel. He continues to serve the Water Office part-time as Special Counsel.
Mr. Aldrich frequently has spoken on legal topics relating primarily to grazing on the public lands and the litigation and negotiation of federal reserved water rights.
He is a member of the American Bar Association, the Montana Bar, and the Yellowstone County Bar Association. He is also a member of the ABA Section on Natural Resources, Energy and Environmental Law, the Section on Dispute Resolution, and the Senior Lawyer's Division. He has been named to Marquis Who's Who in America and Who's Who in American Law. In 1996, the Department of Justice recognized him for his efforts in the litigation and negotiation of Indian reserved water rights. In 1998, he received the Department of Interior's Meritorious Service Award, the second highest recognition offered by the Department of the Interior.
He earned his J.D. in 1969 from the University of Montana School of Law and his B.A. in History from the University of Montana in 1966. He also attended undergraduate school at Texas Tech University. He is admitted to practice law in Montana, in the Montana Federal District Courts, and the United States Supreme Court.
Revised Sept. 8, 2005
It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going the other way - in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. 2
I. INTRODUCTION:
In the 1970s, the States of Wyoming and Montana initiated general stream adjudications to determine and quantify existing state based, appropriative water rights and Indian and Federal reserved water rights. The two adjudications provide an interesting study in contrasts. The Big Horn Adjudication has resulted in a settlement of non-Indian reserved water rights, seven visits to the Wyoming Supreme Court, and one visit to the United States Supreme Court. In contrast, the Montana Adjudication, after one visit to the United States Supreme Court to determine state court jurisdiction under the McCarran Amendment and a determination by the Montana Supreme Court that the Montana Adjudication is facially adequate to determine Indian and Federal reserved water rights and to apply Federal law to that determination, 3 has resulted in negotiated settlements involving five Indian Tribes, the National Park Service, the Fish and Wildlife Service, and the Bureau of Land Management.
As judicial proceedings in Wyoming seem to be winding down with the completion of appeals and remands in the last two proceedings (involving both Indian and non-Indian issues), the Montana negotiation process still has work to do to complete settlements for several Indian Tribes, the National Forests, three Fish and Wildlife Refuges, and the Missouri Breaks National Monument.
Both adjudications have extensive work remaining regarding state based, appropriative rights.
Interestingly, while litigation has raged in Wyoming regarding Indian reserved water rights with seven visits to the Wyoming Supreme Court and one to the United States Supreme Court, Wyoming has proven quite successful in resolving non-Indian reserved water rights through settlement and resolving appropriation rights without judicial proceedings. Wyoming is nearly done with the appropriation water rights and Wyoming estimates that the final appropriation rights will be reported to the Court in 2006. To the author's knowledge, the Big Horn General Stream Adjudication has resulted in only one matter going to the Wyoming Supreme Court so far 4 and two related additional matters are pending in District Court. 5 In contrast, as is discussed more fully below, Montana has been particularly successful in resolving both Indian and non-Indian water rights through settlement, however the resolution of appropriation rights has resulted in numerous visits to the Montana Supreme Court on issues such as in-stream fish and wildlife water rights, 6 ownership of water rights on State School Trust Lands, 7 abandonment, 8 and the authority of the Montana Department of Natural Resources to continue to issue surface and groundwater permits and change authorizations on the Flathead Indian Reservation. 9 Current estimates for completion of the Montana adjudication anticipate at least an additional twenty years.
II. BIG HORN IN THE COURTS:
A. BACKGROUND AND PROCEDURAL HISTORY:
For a more detailed factual and procedural summary, please refer to Big Horn I, 723 P.2d 76 (Wyo. 1988). On January 24, 1977, the State of Wyoming filed the Big Horn adjudication in response the enactment of § 1-37-106 (W.S. 1977), on January 22, 1977, by the Wyoming Legislature. The complaint named the United States as a defendant and was filed in the District Court of the Fifth Judicial District of Wyoming. The United States removed the case to Federal District Court, but the Federal District Court granted Wyoming's motion to remand to the state court on June 1, 1977, finding that the McCarran Amendment, 43 U.S.C. § 666 and § 1 -37-106 (W.S. 1977) provided for jurisdiction in the state court. After further procedural sparring, the Shoshone and Arapaho Tribes of the Wind River Indian Reservation, Wyoming intervened, and the court referred the case to Special Master Teno Roncalio.
The Special Master divided the case into three phases: Phase I, Indian reserved water rights (which are the subject matter of all but one of the contested opinions in Big Horn); Phase II, non-Indian federal reserved water rights; and Phase III (which includes Big Horn VII), state appropriative water rights evidenced by a permit or certificate. Phase I is nearly complete with one appeal of Walton rights (water rights held by non-Indians which are based upon the ownership of formerly allotted lands and entitled to a treaty priority date; see below, Big Horn VI) pending in the District Court on remand from the Wyoming Supreme Court. The District Court entered final judgment on non-Indian federal reserved water rights in Phase II on February 9, 1983 pursuant to stipulation and no appeals resulted. Phase III is still ongoing and is still pending. In May of 1985, the District Court entered an order confirming all existing, adjudicated and certificated water rights and no appeals were filed.
B. PHASE I-INDIAN RESERVED WATER RIGHTS:
The Special Master's Report-1982 and District Court Proceedings-1983 and 1985:
The Special Master entered his 451 page report regarding the federal reserved water rights for the Tribes on December 15, 1982, after nearly a year of trial. The Master found reserved water rights for the Tribes for historic, present and future practicably irrigable acreage (PIA) agricultural uses, stock water, municipal water, industrial and mineral development, and in-stream flow for fish and wildlife and aesthetics. The Master also imposed restrictions on future Tribal development regarding the development of off-setting storage and phasing of development.
In 1983, District Court Judge Joffe entered findings and conclusions approving the Special Masters report for PIA, declining an award of reserved water rights for other than agricultural purposes and from groundwater, although the court did confirm...
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