Vol. 32, No. 5, 7. The Big Horn River General Stream Adjudication.

• Author: By Hon. Gary P. Hartman

Wyoming Bar Journal

2009.

Vol. 32, No. 5, 7.

The Big Horn River General Stream Adjudication

Wyoming LawyerIssue: October, 2009The Big Horn River General Stream AdjudicationBy Hon. Gary P. Hartman "Tis better to be upstream with a shovel than downstream with a right," so goes the old adage of the West. Not true in the Big Horn River Stream Adjudication which has been one of the longest running court cases in Wyoming. Commenced on January 24, 1977, two days after the Wyoming Legislature passed the enabling legislation, the State of Wyoming brought suit in the 5th Judicial District Court in Worland. The purpose was to institute an action to determine the nature, extent and relative priority of water rights of all persons on the river which included Indian reserved rights, federal reserved rights and more complexing, the individual water rights of hundreds of irrigators on the system.

Some initial problems of the case were how to handle this complex case, who was entitled to notice and who or what entity was going to foot the bill for this costly litigation. Such were the problems that confronted the first judge to handle the case. Judge Joffee began this monumental task by bringing several of the key players together to hammer out a case plan for management and procedure. It was decided that the litigation should be addressed in three phases: Phase I would determine the Indian reserved right, Phase II would determine the federal reserved rights and Phase III would address the water rights of all other irrigators on the Big Horn. Subsumed within these phases were a multitude of issues such as quantifying "practicable irrigable acres" for the Indian reserved rights, determining the criteria for a valid "Walton Right" and managing the River to insure delivery of water to Indian as well as other irrigator's head gate.

To assist the court, a series of Special Masters were appointed to hold hearings, issue Findings of Fact and to keep the litigation moving forward. The first of these Special Masters was former U.S. Representative Teno Roncolio. Master Roncolio was instrumental in the Phase I work and recommended to Judge Joffee the "practicable irrigable acres" as well as reserved storage rights of the Arapahoe and Eastern Shoshone Tribes. While not accepting all of Master Roncolio's findings, Judge Joffee quantified the...