THE HISTORICAL EVOLUTION OF THE METHODOLOGY FOR QUANTIFYING FEDERAL RESERVED INSTREAM WATER RIGHTS FOR AMERICAN INDIAN TRIBES.

• Author: Hedden-Nicely, Dylan R.

1. INTRODUCTION II. The Winters Doctrine and Reserved Instream Water Rights III. The Historical Development of Reserved Instream Water Right Quantification Methodologies A. Early Stream Modeling Approaches B. The Early Cases: Walton and Anderson--Temperature is the Key C. Big Horn: The First Use of IF1M--But is Fishing a Purpose of the Reservation? D. Acquavella: The First Use of IFIM/PHABSIM "Diminished" but Resilient Water Rights E. Anderson Revisited: IFIM Comes to Chamokane Creek F. Modern Era: Klamath Reservation--IFIM/PHABSIM Becomes the Accepted Methodology G. Water for the Homeland: Instream Flows at the Coeur d'Alene Reservation IV. Conclusion I. INTRODUCTION

   This past summer, I had the opportunity to go fishing with one of my students, Gaylen Edmo, on a tributary of the Salmon River in Central Idaho. I have fished for many years, but this trip was special because Gaylen--who is a member of the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation--spears fish in the traditional way, much in the same way as his ancestors. Gaylen was taught this technique by his father, Wesley, who learned it from his father, and on it goes. The Shoshone-Bannock spears are long, up to ten feet or more, and traditionally they were made of willow. Today, the spears can be made of several types of wood. Willow is still used, but so is pine, as well as manufactured wooden dowels. To the end of these spears are affixed large steel hooks, about four inches in length. The hooks are attached to an approximately ten-inch line, which is in turn attached to the spear. The hooks are attached to the spear so that when they strike the fish they detach and spin through the fish, setting the hook. Hunters (1) congregate at constrictions in the river, below which fish collect and then run a gauntlet of spears. Spears are attached to the hunter by a long rope and, depending on the distance to the fish, the hunter may strike the fish while holding to the spear or by throwing the spear and dragging it back in by the rope.

   Unfortunately, the chinook salmon run this past year was not prolific, making the fishing a slow-going affair. Nonetheless, it was an experience to see Gaylen, his father, and his fellow tribal members come together to celebrate the fish, their culture, and occasionally harvest a fish. In so doing, they were taking part in a tradition that spans time, connecting to ancestors that hunted fish in much the same way and in the same places since time immemorial.

   Although Gaylen's Tribes' method of hunting fish is unique--indeed, every tribe's method is a little different--its historic reliance on aquatic species for subsistence is not. Tribes throughout the Northwest traditionally relied upon the fish in their territory for their survival. As a result, in the face of incredible odds, time after time the tribes of the Northwest demanded the United States recognize their right to continue their traditional way of life. (2) For many, the dependence on fish continues; much of the fish Gaylen harvests goes to elders and others in need back home at Fort Hall. As important, tribal members throughout the Northwest rely on the fish for their cultural survival. For them, these fish, which have sustained their ancestors since time immemorial, are inextricably intertwined with their identity as a person indigenous to the region now known as the Northwestern United States.

   In turn, the fish rely upon the tribes for their survival in an era of consumption, climate change, and dams. Whether fighting to maintain the fishery through the canneries and fish wheels of the 1800s to the massive hydroelectric projects of the twentieth century, the tribes of the Northwest have been steadfast in their defense of these aquatic relatives. That effort, through litigation, restoration, and conservation management, has focused on maintaining a good environment for culturally important aquatic species. Those fishes need many things; their success is predicated on good habitat, food, water quality, and water quantity. Tribal efforts have addressed each of these and each deserves considerable attention for their dedication and innovation in the face of incredible odds. This Article focuses on a sliver of that effort: the methods tribes have used to ensure adequate quantities of water remain in streams to maintain a healthy habitat for fish.

2. THE WINTERS DOCTRINE AND RESERVED INSTREAM WATER RIGHTS

   Due to the unique combination of an historical abundance of fish and a contemporary shortage of water, conflict surrounding instream flows primarily takes place in the northwestern portion of the United States. Tribes throughout this region traditionally relied upon fish and other aquatic life for subsistence; a reliance that continues to this day. (3)

   The states of the Northwest, like all western states, apply the water rights doctrine known as prior appropriation. (4) In a prior appropriation state,

   [O]ne acquires a right to water by diverting it from its natural source and applying it to some beneficial use. Continued beneficial use of the water is required in order to maintain the right. In periods of shortage, priority among confirmed rights is determined according to the date of initial diversion. (5) Because of a longstanding federal deference to state water rights law, states are said to generally have plenary authority over water management. (6) This general rule is subject to two broad exceptions: the navigational servitude and the water rights reserved by the federal government for the benefit of federal reservations of land. (7) Although the reserved water rights doctrine applies to all federal reservations, it was born at the Fort Belknap Indian Reservation in northeast Montana. (8) It was the water rights appurtenant to that reservation that were at issue before the Court in 1908 when it laid the foundations for what would become the Winters doctrine: "when the Federal Government withdraws ... land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." (9)

   The differences between state-based non-Indian water rights and water rights reserved by Indian tribes are well documented. (10) Water rights reserved for Indian tribes are based upon the treaties, executive orders, congressionally ratified agreements, and other operative documents that were negotiated between the United States and each Indian Tribe for the creation of Indian reservations. (11) Although these documents are invariably silent regarding water rights, the Supreme Court has long held that the tribes and United States nonetheless intended to acquire a reserved water right "if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created." (12) As a result, the reserved water rights doctrine is one of implied rights. (13) Further, although reserved rights are administered in priority along with state-based water rights, the priority date for non-consumptive instream flow water rights is "time immemorial," because "[t]he rights were not created by the ... [t]reaty, rather, the treaty confirmed the continued existence of these rights." (14)

   Winters (15) was not a general adjudication but was instead limited to the question of whether the Tribes in that case had reserved water for irrigation. (16) In fact, all of the early cases regarding the development of the Winters doctrine were factually limited to reserved irrigation water rights. (17) These cases culminated in the Supreme Court decision Arizona v. California (18) wherein the Court affirmed the practicably irrigable acreage (PIA) methodology to quantify irrigation water rights reserved by Indian tribes. (19) Later, the Ninth Circuit established that tribes may also be entitled to water rights sufficient to preserve their hunting, fishing, gathering, and other traditional subsistence rights. (20) In those cases, the Ninth Circuit recognized that the Supreme Court had never required it to "choose a single essential purpose" for the creation of Indian reservations. (21) Instead, courts have almost universally recognized that in addition to the development of an agricultural economy, "preservation of the tribe's access to fishing grounds was one purpose for the creation of," many Indian reservations in the Northwestern United States. (22)

3. THE HISTORICAL DEVELOPMENT OF RESERVED INSTREAM WATER RIGHT QUANTIFICATION METHODOLOGIES

   1. Early Stream Modeling Approaches

      As the United States began to shift its attention to environmental concerns in the late 1960s, public values shifted away--if only slightly-from an emphasis solely on water use to recognize the importance of maintaining some minimum amount of water in streams to support fish and other aquatic habitat. (23) However, the relationship between flow and habitat was not well understood at that time. (24) As a result, "[p]rior to about 1973, instream flow assessments typically arrived at a single streamflow value--a 'minimum flow' above which all flows were considered available for out-of-stream use." (25) These single values were typically derived from "analyses of hydrologic records and/or fish population studies," rather than a more robust analysis of the interrelationship between stream hydrology and fish biology. (26)

      Numerous methods were developed during this time. (27) Most common was to simply apply some percentage of a stream's mean annual flow. (28) This method, known as the "Montana Method" or "Tennant Method," after its creator Don Tennant, develops an empirical relationship between flow and habitat. (29) Through analysis of empirical data on many streams, Tennant concluded that 60%-100% of mean annual flow represents optimal flow conditions for fish; 30% to be adequate conditions; and 10% of the mean annual flow to be the "absolute low flow for...