Agua Caliente Band of Cahuilla Indians V. Coachella Valley Water Dist., 2015 U.S

User Name: Chase Nielson Date and Time: 06 Jul 2016 3:05 p.m. MDT Job Number: 34384971

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1. Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 2015 U.S. Dist. LEXIS 49998 Client/Matter: -None- Search Terms: 2015 U.S. Dist. LEXIS 49998 Search Type: Natural Language

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist. United States District Court for the Central District of California March 20, 2015, Decided; March 20, 2015, Filed EDCV 13-883-JGB

Reporter 2015 U.S. Dist. LEXIS 49998 Agua Caliente Band of Cahuilla Indians v. Coachella Partial summary judgment was granted to the tribe and Valley Water District et al. the United States on the claim that the government impliedly reserved appurtenant water Prior History: Agua Caliente Band of Cahuilla Indians sources—including underlying groundwater—when it v. Coachella Valley Water Dist., 2014 U.S. Dist. LEXIS created the tribe's reservation; and partial summary 186223 (C.D. Cal., June 19, 2014) judgment was granted to the districts regarding the tribe's aboriginal title claims because those rights had been extinguished. Core Terms LexisNexis® Headnotes reservation, Tribe's, groundwater, rights, aboriginal, water rights, Phase, surface water, valley, purposes, Civil Procedure > ... > Summary Judgment > Motions for occupancy, appurtenant, reserved right, extinguished, Summary Judgment > Cross Motions impliedly, parties, federal law, resources, Treaty, courts, summary judgment, territory, right of occupancy, public Civil Procedure > Judgments > Summary Judgment > domain, Irrigation, continuous, fulfill, federal Entitlement as Matter of Law government, land claim, encompass HN1 A court shall grant a motion for summary judgment when there is no genuine dispute as to any material fact Case Summary and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary judgment is Overview appropriate if under the governing law, there can be but HOLDINGS: [1]-A tribe's federal reserved water rights one reasonable conclusion as to the verdict. Courts included groundwater, but the tribe's aboriginal right of consider cross-motions for summary judgment occupancy was extinguished, so the tribe had no independently of one another, each on their own merits, derivative right to groundwater on that basis; in light of all the evidence attached to both motions. [2]-Because the federal government intended to reserve water for the tribe's use on its reservation, rights to Civil Procedure > ... > Summary Judgment > Entitlement groundwater underlying the reservation were as Matter of Law > Genuine Disputes appurtenant, and the government impliedly reserved Civil Procedure > ... > Summary Judgment > Entitlement groundwater, as well as surface water, for the tribe; as Matter of Law > Appropriateness [3]-The reservation's purposes to provide the tribe with Civil Procedure > ... > Summary Judgment > Entitlement a permanent homeland had not changed, and Winters as Matter of Law > Materiality of Facts ensured a federal right to appurtenant water to realize that end; [4]-No claim was filed as part of the claims HN2 A genuine issue of material fact exists if the process under the Act of 1851, ch. 41, 9 Stat. 631, so evidence is such that a reasonable jury could return a the tribe's aboriginal claim was extinguished after the verdict for the non-moving party, and the underlying two-year claims window closed and the tribe could not substantive law identifies which facts are material. In assert an aboriginal groundwater right. ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the Outcome non-moving party.

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Governments > Federal Government > Property to provide a home for the Indians, which is a broad one Governments > State & Territorial Governments > and must be liberally construed. The rule of liberal Property > Water Rights construction should apply to reservations created by Executive Order. Congress envisioned agricultural Real Property Law > Water Rights pursuits as only a first step in the "civilizing process." It is obvious that the quantum is not measured by the use HN3 When the United States withdraws its land from being made at the time the treaty was made. The the public domain and reserves it for a federal purpose, reservation was not merely for present but for future the Government, by implication, reserves appurtenant use. To identify an Indian reservation's purposes, the water then unappropriated to the extent needed to Ninth Circuit considers the reservation's formative accomplish the purpose of the reservation. Impliedly document and circumstances surrounding its creation, reserved water rights vest on the date of the reservation and the history of the Indians for whom it was created, and are superior to the rights of future appropriators. as well as the tribe's need to maintain themselves under Winters rights arise under federal law, and are thus an changed circumstances. New Mexico, while not directly exception to the normal rule that assigns water applicable to Winters doctrine rights on Indian resources regulation to the states. reservations, at a minimum establishes several useful guidelines. Governments > Federal Government > Property Governments > Native Americans > Water Rights HN4 Generally, the phrase "public domain" refers to the land owned by the federal Government, mostly in the HN7 Cases addressing Winters rights proceed in two West, that was available for sale, entry, and settlement distinct analytical steps. Courts first examine the under the homestead laws, or other disposition under existence of reserved rights—usually a straightforward the general body of land laws. The government reserves inquiry. Then comes quantification, which addresses land, literally setting aside parcels of land belonging to the scope of the government's implication. the United States for various purposes, including Indian settlement, bird preservation, and military installations, Governments > Native Americans > Water Rights when it appears that the public interest would be served Real Property Law > Water Rights > Groundwater by withdrawing or reserving parts of the public domain. HN8 No case interpreting Winters draws a principled Governments > Native Americans > Water Rights distinction between surface water physically located on a reservation and other appurtenant water sources. HN5 In the context of a quantification of an Indian tribe's Reserved rights presumably attach to all water Winters rights, water was intended to satisfy the future sources—groundwater, streams, lakes, and as well as the present needs of the Indian Reservations springs—that arise on, border, traverse, underlie, or are and enough water was reserved to irrigate all the encompassed within Indian reservations. Instead, the practicably irrigable acreage on the reservation. The relevant legal constraints under Winters and its progeny federal government only reserves that amount of water are whether (1) the reserved water is necessary to fulfill necessary to fulfill the purpose of the reservation, no the purposes of the reservation and (2) the reserved more. The Supreme Court has drawn a distinction water is appurtenant to the reserved land. between a reservation's primary purpose, for which water is impliedly reserved under Winters, and Governments > Native Americans secondary uses, for which it is not. Governments > Federal Government > Property

Governments > Native Americans > Water Rights HN9 The specific purposes of an Indian reservation were often unarticulated. The general purpose, to HN6 The Ninth Circuit applies United States v. New provide a home for the Indians, is a broad one and must Mexico's primary use—secondary use distinction to be liberally construed. guide the implied reserved water rights analysis involving Indian tribes and reservations, although not Governments > Native Americans > Water Rights necessarily to control it. The general purpose of an Indian reservation, and thus the purpose for which the HN10 The Court must both construe the general federal government impliedly reserves water rights, is purposes of a tribe's reservation broadly, and take

Chase Nielson Page 3 of 14 2015 U.S. Dist. LEXIS 49998, *49998 account that Winters rights anticipate increased or novel Governments > State & Territorial Governments > future uses. Property > Water Rights Real Property Law > Water Rights > Groundwater Governments > Native Americans > Water Rights Real Property Law > Water Rights > Groundwater HN15 See Cal. Water Code § 10720.3. Real Property Law > Water Rights > Riparian Rights Governments > Native Americans > Water Rights Governments > State & Territorial Governments > Property > Water Rights HN16 The Ninth Circuit has held the reasoning of United States v. New Mexico only establishes useful HN11 California law recognizes that groundwater rights guidelines for tribal reservation cases, and courts should are inextricably linked to the overlying land.An overlying instead focus on the broader command that Winters right, analogous to that of a riparian owner in a surface stream, is the right of the owner of the land to take water rights encompass only that amount of water necessary from the ground underneath for use on his land within to fulfill the purpose of the reservation, no more. the basin or watershed; the right is based on ownership of the land and is appurtenant thereto. And federal law, Governments > NativeAmericans >Authority & Jurisdiction at least by implication, treats surface water and groundwater similarly. Taken together, these authorities HN17 A tribal reservation's reason for being is not suggest that groundwater provides an appurtenant etched in stone, but shifts to meet future needs. water source, in the Winters sense. Governments > Native Americans > Water Rights

Governments > Native Americans > Water Rights Real Property Law > Water Rights Real Property Law > Water Rights > Groundwater HN18 It is well-established that Indian allottees have a HN12 Winters rights encompass groundwater right to use a portion of reserved water. Additionally, the resources, as well as surface water, appurtenant to full quantity of water available to the Indian allottee thus reserved land. The significant question for the purpose may be conveyed to the non-Indian purchaser, which of the reserved rights doctrine is not whether the water logic surely translates to lessees. runs above or below the ground but whether it is necessary to accomplish the purpose of the reservation. Governments > Native Americans > Property Rights

Governments > Native Americans > Water Rights Real Property Law > Title Quality > Aboriginal & Recognized Titles Real Property Law > Water Rights > Groundwater HN19 Federal law recognizes a tribe's property right HN13 Appurtenance, as that term is used by the Winters arising out of original territorial occupancy. Indian's doctrine, must provide some legal limitation to impliedly aboriginal title derives from their presence on the land reserved water rights; but persuasive authority suggests before the arrival of white settlers. A tribe with original that limit should not be drawn between surface and Indian title may bring a federal common law action to groundwater sources. enforce ownership rights. Aboriginal property rights which arise under federal law are not ownership rights, Governments > Native Americans > Water Rights but rather are rights of occupancy granted by the Governments > State & Territorial Governments > conquering sovereign and are therefore necessarily a Property > Water Rights creature of the conquering sovereign's law. The HN14 Winters rights derive from federal law, and thus conquering government acquires the exclusive right to displace state law when in conflict. The case law extinguish Indian title. Any such divestment of original specifically holds that the Winters doctrine does not Indian title is purely a matter of Congressional entail a balancing test of competing interests to prerogative.And although the Supreme Court has noted determine the existence or scope of reserved rights. extinguishment could be accomplished by treaty, sword, Moreover, the California legislature acknowledges the exercise of complete dominion adverse to the right of supremacy of federal water rights, and acquiesces in occupancy, or otherwise, a federal statute embodies a their priority. Cal. Water Code § 10720.3. more typical legislative divestment.

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Real Property Law > Title Quality > Aboriginal & Governments > Native Americans > Property Rights Recognized Titles Real Property Law > Title Quality > Aboriginal & HN20 In the absence of any argument that the Spanish Recognized Titles or Mexican law of aboriginal title differs from that of the Governments > Federal Government > Property United States, the Court will assume that it does not. HN25 Aboriginal rights are based on actual, exclusive, Governments > Native Americans > Property Rights and continuous use and occupancy for a long time of the claimed area. Accordingly, an aboriginal right of Governments > State & Territorial Governments > Property occupancy is fundamentally incompatible with federal Governments > Federal Government > Property ownership.

HN21 See Act of March 3, 1851, ch. 41, § 8, 9 Stat. 631. Governments > Native Americans > Water Rights

Governments > Native Americans > Property Rights Real Property Law > Water Rights > Groundwater Governments > State & Territorial Governments > Property Governments > Native Americans > Property Rights Governments > Federal Government > Property Real Property Law > Title Quality > Aboriginal & Recognized Titles HN22 See Act of March 3, 1851, ch. 41, § 13, 9 Stat. HN26 A tribe's asserted right to groundwater based on 631. aboriginal title must actually connect to its claim for aboriginal title. That is, no such freestanding aboriginal Governments > Federal Government > Property rights to natural resources exist, all derive from a right to Governments > Native Americans > Property Rights occupancy. Real Property Law > Title Quality > Aboriginal & Recognized Titles Civil Procedure > Appeals > Appellate Jurisdiction > Interlocutory Orders HN23 Federal courts construe the Act of March 3, 1851, Civil Procedure > Appeals > Appellate Jurisdiction > Final ch. 41, §§ 8 and 13, 9 Stat. 631 broadly; together they Judgment Rule bar Indians who failed to assert original occupancy claims within the statutory two-year window from relying HN27 Usually litigants may only appeal final judgments on such a right in future disputes. There could be no of district courts. 28 U.S.C.S. § 1291. 28 U.S.C.S. § doubt of the power of the United States, consistently 1292, however, confers appellate jurisdiction over a with such obligation, to provide reasonable means for limited class of interlocutory decisions by district courts, determining the validity of all titles within the ceded including decisions which involve a controlling question territory, to require all claims to lands therein to be of law as to which there is substantial ground for presented for examination, and to declare that all not difference of opinion and that an immediate appeal from presented should be regarded as abandoned. The the order may materially advance the ultimate 28 U.S.C.S. 1292(b). purpose of the Act of 1851 was to give repose to titles as termination of the litigation. well as to fulfill treaty obligations, and it not only Civil Procedure > Appeals > Appellate Jurisdiction > permitted, but required, all claims to be presented to the Interlocutory Orders commission, and barred all from future assertion which were not presented within the two years. HN28 To determine if a substantial ground for difference of opinion exists under 28 U.S.C.S. § 1292(b), courts Real Property Law > Title Quality > Aboriginal & must examine to what extent controlling law is unclear. Recognized Titles Courts traditionally will find that a substantial ground for Governments > Native Americans > Property Rights difference of opinion exists where the circuits are in dispute on the question and the court of appeals of the HN24 Despite the text of the Act of March 3, 1851, ch. circuit has not spoken on the point or if novel and 41, 9 Stat. 631, the land confirmation proceedings were difficult questions of first impression are presented. intended to be all-encompassing and a failure to assert aboriginal title within the terms of the statute precludes Counsel: [*1] For Agua Caliente Band of Cahuilla subsequent claims to land. Indians, Plaintiff: Emil W Herich, LEAD ATTORNEY,

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Kilpatrick Townsend and Stockton LLP, Beverly Hills, Valley Water District, Castulo R Estrada, in [*3] his CA; Catherine F Munson, PRO HAC VICE, Kilpatrick official capacity as a Member of the Board of Directors Townsend and Stockton LLP, Washington, DC; David J of the Coachella Valley Water District, Defendants: Masutani, AlvaradoSmith APC, Los Angeles, CA; Steven B Abbott, Redwine & Sherrill, Riverside, CA. Heather Whiteman Runs Him, Steven C Moore, PRO HAC VICE, Native American Rights Fund, Boulder, CO; Judges: Present: The Honorable JESUS G. BERNAL, Mark H Reeves, PRO HAC VICE, Kilpatrick Townsend UNITED STATES DISTRICT JUDGE. and Stockton LLP, Augusta, GA. Opinion by: JESUS G. BERNAL For United States of America, Intervenor Plaintiff: Daron T Carreiro, Yosef M Negose, LEAD ATTORNEYS, US Department of Justice, Indian Resources Opinion Section-Environmental and Natural Resource, Washington, DC; F Patrick Barry, LEAD ATTORNEY, CIVIL MINUTES—GENERAL US Department of Justice, Indian Resources Section, Washington, DC. Proceedings: Order GRANTING IN PART and DENYING IN PART Plaintiffs' and Defendants' For Coachella Valley Water District, Ed Pack, in Official motions for partial summary judgment Capacity as Member of the Board of Directors of the Coachella Valley Water District, John Powell, Jr, in "It is probable that no problem of the Southwest section Official Capacity as Member of the Board of Directors of of the Nation is more critical than that of scarcity of the Coachella Valley Water District, Peter Nelson, in water." Colorado River Water Conservation Dist. v. Official Capacity as Member of the Board of Directors of United States, 424 U.S. 800, 804, 96 S. Ct. 1236, 47 L. the Coachella Valley Water District, Defendants: Steven Ed. 2d 483 (1976). B Abbott, LEAD ATTORNEY, Gerald D Shoaf, Julianna The Agua Caliente Band of Cahuilla Indians ("Agua [*2] K Strong, Redwine & Sherrill, Riverside, CA. Caliente" or "Tribe") claims to have lived in the Coachella valley, which sits just to the east of the San Jacinto For Desert Water Agency, Defendant: Roderick E mountains in southern California, since before California Walston, LEAD ATTORNEY, Gene Tanaka, Best Best was admitted as a State in 1850. The Coachella valley and Krieger LLP, Walnut Creek, CA; Steven George forms part of the Sonoran desert, where water is scarce. Martin, LEAD ATTORNEY, Best Best and Krieger LLP, The Agua Caliente sued the Coachella Valley Water San Diego, CA; Arthur L Littleworth, Best Best and District ("CVWD") and the Desert Water Agency Krieger, Riverside, CA; Piero C Dallarda, Best Best and ("DWA"),1 seeking, among other things, a declaration Krieger LLP, Riverside, CA. that their federal reserved water rights, which arise under the doctrine of Winters v. United States, 207 U.S. For Patricia G Oygar, in Official Capacity as Member of 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908), extend to the Board of Directors of the Desert Water Agency, Thomas Kieley, III, in Official Capacity as Member of the groundwater. The parties, plus the United States as Board of Directors of the Desert Water Agency, James Plaintiff-intervenor, all filed motions for partial summary Cioffi, in Official Capacity as Member of the Board of judgment. [*4] (Doc. Nos. 82, 83, 84, 85.) After Directors of the Desert Water Agency, Craig A Ewing, in considering all the papers, the exhibits submitted with Official Capacity as Member of the Board of Directors of them, and the parties' arguments at the March 16, 2015 the Desert Water Agency, Joseph K Stuart, in Official hearing, the Court concludes the Tribe's federal Capacity as Member of the Board of Directors of the reserved water rights may include groundwater, but the Desert Water Agency, Defendants: Steven George Tribe's aboriginal right of occupancy was extinguished Martin, LEAD ATTORNEY, Best Best and Krieger LLP, long ago, so the Tribe has no derivative right to San Diego, CA; Roderick E Walston, LEADATTORNEY, groundwater on that basis. Best Best and Krieger LLP, Walnut Creek, CA. I. BACKGROUND For G Patrick O'Dowd, in his official capacity as a Member of the Board of Directors of the Coachella A. Factual allegations

1 The Court refers to CVWD and DWA collectively as "Defendants."

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The Agua Caliente have lived in the Coachella valley including housing, schools, government offices, and since before American or European settlers arrived in cultural and commercial enterprises," for which the what is now southern California, and the Tribe has used Tribe relies upon its reserved groundwater resources. both surface water and groundwater resources there (Compl. ¶ 51.) The Agua Caliente seek relief in this case for "cultural, domestic and agricultural subsistence to "satisfy the present and future needs of the Tribe and purposes." (Compl. ¶ 4.) Those uses included "stock its members" and to protect the Tribe's reserved water watering and agricultural irrigation," and the Tribe raised rights from overdraft and degradation. (Compl. ¶¶ "abundant crops of corn, barley and vegetables" in the 52-54.)2 1850s. (Compl. ¶ 14-15.) President Ulysses S. Grant established the Tribe's reservation in an Executive Order B. Procedural history issued May 15, 1876, and the reservation was expanded by President Rutherford B. Hayes on September 29, The Agua Caliente filed this action for declaratory and 1877. (Id. ¶5.) The United States, pursuant to statute, injunctive relief against both defendants in May 2013. holds the lands of [*5] the reservation in trust for the (Doc. No. 1.) In June 2014 the Court granted the United tribe. (Id.) The Agua Caliente claim the "establishment States' motion to intervene as a Plaintiff in its capacity of the Reservation pursuant to federal law impliedly as trustee for the Tribe's reservation. (Doc. Nos. 62, reserved to the Tribe and its members the right to 70.) surface water and groundwater sufficient to accomplish the purposes of the reservation, including establishing The parties stipulated to trifurcate this action into three a homeland for the Tribe and its members." (Id. ¶ 6.) In phases. (Doc. No. 49.) Phase I seeks to resolve the the Tribe's view, those reserved rights "are the most primarily legal questions regarding the existence of (1) senior" in the region, and, accordingly, theAgua Caliente the Agua Caliente's federal reserved rights to may prevent CVWD and DWA from adversely affecting groundwater under the Winters doctrine, and (2) the the quantity and quality of their water. (Id. ¶¶ 7, 8.) Tribe's aboriginal rights to groundwater. Phase II, contingent to a certain extent on Phase I's resolution, Defendants are creatures of California statutes, or will address (1) the ownership of certain "pore space" individuals sued in their official capacities who control beneath the reservation; (2) the legal question of or manage the CVWD or DWA. The CVWD is a county whether a right to a quantity of groundwater water district, and is responsible for developing encompasses a right to water of a certain quality; and groundwater wells in the Coachella valley and extracting (3) some of the equitable defenses asserted by the groundwater. (Compl. ¶ 10.) The DWA is an CVWD and DWA. If necessary, in Phase III the Court "independent special district" created to provide water will undertake the fact-intensive tasks of quantifying the to the city of Palm Springs and areas that surround it by Agua Caliente's rights to groundwater and pore space, developing groundwater wells and extracting and crafting appropriate injunctive relief. groundwater. (Id. ¶ 12.) Throughout the twentieth century, Californians displaced the Agua Caliente from All four parties have filed motions for summary [*8] the Coachella valley, and fueled agricultural expansion judgment. The Tribe's motion, (Doc. No. 85), argues [*6] in the desert through the increased use of federal law recognizes the Tribe's reserved right to groundwater for commercial irrigation. (Compl. ¶¶ groundwater, and that it also holds aboriginal title to 23-24.) land in the Coachella valley to which groundwater rights The Tribe's pleading further states the groundwater attach. The United States' motion, (Doc. No. 83), echoes underlying the Coachella valley is in a continual state of the Tribe's Winters rights argument and emphasizes "overdraft," which means the outflows from the aquifer the supremacy of federal water rights over those created exceed the inflows. (Compl ¶ 33.) The CVWD tries to by state law, but does not claim tribal aboriginal title on recharge the Coachella valley's groundwater by the Agua Caliente's behalf. importing water from the Colorado River, but the Tribe alleges that water is of inferior quality. (Compl. ¶ 47.) CVWD maintains in its motion that (1) Congress The complaint finally alleges the "Tribe and its members extinguished any aboriginal groundwater rights, and (2) have established a homeland in the Coachella valley, Winters rights impliedly reserved for the Tribe do not

2 The United States' complaint in intervention asserts claims materially similar to the Tribe's complaint regarding the claim for a declaration of federally reserved water rights. It does not, however, assert a claim regarding aboriginal [*7] water rights.

Chase Nielson Page 7 of 14 2015 U.S. Dist. LEXIS 49998, *8 extend to groundwater, and even if they extend to may have to cultivate a piece of ground as large as he groundwater, the purposes of the Agua Caliente's may desire." (Doc. No. 92-1 ¶ 58; see also id. ¶¶ 39-59.) reservation will not "entirely fail" without a reserved right to groundwater. (Doc. No. 82.) DWA's motion, (Doc. No. A series of seven Executive Orders, issued pursuant to 84), largely parallels that of CVWD; it contends the statutory authority and dated from 1865-1881, created Tribe has no federal reserved right in groundwater, and what is now the Agua Caliente's reservation, although the Tribe's aboriginal water rights claim was the first two reserved the bulk of the land. (See Doc. No. extinguished by statute long ago. 92-1 ¶ 30.) All the Orders are very short. President Grant stated in the first Order that the land described II. LEGAL STANDARD was "withdrawn from sale and set apart as reservations for the permanent use and occupancy of the Mission HN1 A court shall grant a motion for summary judgment Indians in southern California." (Id. ¶ 31.) The when there is no genuine dispute as to any material fact subsequent reservations either incorporate the general and the moving party is entitled to judgment [*9] as a statement of purpose contained in the first, or simply matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty state the reservation should be used for "Indian Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 purposes." (See id. ¶¶ 32-36.) L. Ed. 2d 202 (1986). Summary judgment is appropriate if "under the governing law, there can be but one The groundwater basin which underlies the reservation reasonable conclusion as to the verdict." Anderson, extends beneath the entire Coachella valley, and the 477 U.S. at 250. Courts consider cross-motions for aquifer is in a state of overdraft. (Doc. No. 92-1 ¶ 69.) summary judgment independently of one another, each The groundwater does not [*11] "add to, contribute to or on their own merits, in light of all the evidence attached support" any surface stream from which the Tribe diverts to both motions. Fair Hous. Council of Riverside Cnty., water or is otherwise relevant to this litigation (e.g., the Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. Tahquitz, Andreas, or Chino Creeks). (Doc. No. 96-1 ¶ 2001). 1.) Neither the Tribe nor its allottees produce groundwater, rather, they purchase their water from HN2 A genuine issue of material fact exists "if the DWA or CVWD. (Doc. No. 98-9 ¶¶ 1-2, 19.) Some evidence is such that a reasonable jury could return a non-Indian lessees who occupy reservation territory do verdict for the non-moving party," Anderson, 477 U.S. at produce groundwater for their use—specifically to water 248; Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, golf courses. (Doc. No. 98-9 ¶ 20.) 167 L. Ed. 2d 686 (2007), and the underlying substantive law identifies which facts are material. Id. In ruling on a In 1938, the California Superior Court for Riverside motion for summary judgment, a court construes the County entered a decree governing the rights to the evidence in the light most favorable to the non-moving water in the Whitewater river system. (Doc. No. 84-5 party. Scott, 550 U.S. at 380. Ex. 1.) The United States participated in that adjudication via a "Suggestion," (Doc. No. 84-7 Ex. 8), III. FACTS and received a right to divert some surface water from the Tahquitz and Andreas creeks for the Tribe's use The facts relevant to Phase I issues, taken from the (Doc. No. 84-5 Ex. 1 at 61-62). The United States, parties' statements of undisputed facts and requests for however, specifically stated in its Suggestion that it was judicial notice, are not in dispute. Preceding the creation not "submitting the rights of the United States . . . to the of the Agua Caliente's reservation, various government jurisdiction of the Department of Public Works of the officials reported that they intended the reservation to State of California" and also that the court lacked "meet the present and future wants of these Indians, by "jurisdiction of the water rights of the United States." giving them the exclusive and free possession of these (Doc. No. [*12] 84-7 Ex. 8 at 46.) lands [on which] they will be encouraged to build comfortable houses, improve their acres, and surround IV. DISCUSSION themselves with home comforts." ( [*10] E.g., Doc. No. 92-1 ¶ 47.) A "Mission Indian Agent" corresponded that Phase I of this case addresses, by stipulation of the his department's purpose was to "secure the Mission parties, (1) whether the Tribe's federal reserved water Indians with permanent homes, with land and water rights include groundwater resources, and (2) whether enough, that each one who will go upon a reservation the Tribe may assert aboriginal title to groundwater

Chase Nielson Page 8 of 14 2015 U.S. Dist. LEXIS 49998, *12 underlying its reservation. The Court addresses the provides the analytical starting point for a quantification issues in turn. of an Indian tribe's Winters rights. In Arizona, an original proceeding, the Supreme Court agreed with the special A. United States v. Winters and federal reserved master's conclusion that HN5 "water was intended to water rights satisfy the future as well as the present needs of the Indian Reservations and . . . that enough water was 1. The law of federal reserved water rights reserved to irrigate all the practicably irrigable acreage on the reservation." 373 U.S. at 600. Following Arizona, For over a century, the Supreme Court has held that the Court explained the [*14] federal government only HN3 when the United States "withdraws its land from reserves "that amount of water necessary to fulfill the the public domain and reserves it for a federal purpose, purpose of the reservation, no more." Cappaert, 426 the Government, by implication, reserves appurtenant U.S. at 141. And in a subsequent case it drew a water then unappropriated to the extent needed to distinction between a reservation's primary purpose, for accomplish the purpose of the reservation."3 Cappaert which water is impliedly reserved under Winters, and v. United States, 426 U.S. 128, 138, 96 S. Ct. 2062, 48 secondary uses, for which it is not. New Mexico, 438 L. Ed. 2d 523 (1976) (citing U.S. Const. art. I, § 8; U.S. U.S. at 702. Const. art. IV, § 3); see also Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908); John HN6 The Ninth Circuit applies New Mexico's primary v. United States, 720 F.3d 1214, 1225-26 (9th Cir. use—secondary use distinction to guide the implied 2013); Colville Confederated Tribes v. Walton, 647 F.2d reserved water rights analysis involving Indian tribes 42 (9th Cir. 1981); Felix S. Cohen et al., Cohen's Hand- and reservations, although not necessarily to control it. book of Federal Indian Law § 19.03 (2012 ed.) ("Cohen's See United States v. Adair, 723 F.2d 1394, 1408-09 (9th Handbook"); 1 Waters and Water Rights § 37.02 (Amy Cir. 1983) (citing New Mexico, 438 U.S. at 702); Walton, K. Kelley ed., 3d ed. 2015). Impliedly reserved water 647 F.2d at 47 (writing in the process of quantifying a rights "vest[ ] on the date of the reservation and [are] tribe's Winters rights: "[w]e apply the New Mexico test 4 superior to the rights of future appropriators." Id. Winters here"). The Ninth Circuit has further explained the rights arise under federal law, and are thus an exception "general" purpose of an Indian reservation, and thus the to the normal rule that assigns water resources purpose for which the federal government impliedly regulation to the states. United States v. New Mexico, reserves water rights, is to "provide a home for the 438 U.S. 696, 701-02, 98 S. Ct. 3012, 57 L. Ed. 2d 1052 Indians, [which] is a broad one and must be liberally (1978); Cappaert, 426 U.S. at 145; Cohen's Handbook construed." Walton, 647 F.2d at 47 & n.9 ("The rule of § 19.03[1]. liberal construction should apply to reservations created by Executive Order. See [Arizona, 373 U.S. at 598]. The amount of water impliedly reserved under the Congress envisioned agricultural pursuits as only a first Winters doctrine presents a tougher question than step in the 'civilizing' process."); United States v. Ahta- whether or not the government reserved water at all. num Irrigation Dist., 236 F.2d 321, 326 (9th Cir. 1956) See Walton, 647 F.2d at 48. Arizona v. California, 373 ("It is obvious that the quantum is not measured by the U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963), use being made at the time the treaty [*15] was made.

3 HN4 Generally, the phrase "public [*13] domain" refers to "the land owned by the [federal] Government, mostly in the West, that was available for sale, entry, and settlement under the homestead laws, or other disposition under the general body of land laws." Hagen v. Utah, 510 U.S. 399, 412, 114 S. Ct. 958, 127 L. Ed. 2d 252 (1994). The government reserves land, literally setting aside "parcels of land belonging to the United States . . . for various purposes, including Indian settlement, bird preservation, and military installations, when it appear[s] that the public interest would be served by withdrawing or reserving parts of the public domain." Id. (internal citations and quotation marks omitted).

4 The Court recognizes that the primary use—secondary use distinction may be best suited to contexts where a "primary purpose" of a reservation is more clearly announced, such as federal reservations created pursuant to statute as in New Mexico. See Cohen's Handbook § 19.03[4] ("The significant differences between Indian reservations and federal reserved lands indicate that the [primary—secondary] distinction should not apply."). Notwithstanding the practical difficulty of identifying a tribe's reservation's primary purpose, the Court must follow Ninth Circuit case law, which explains that New Mexico, "while not directly applicable to Winters doctrine rights on Indian reservations," at a minimum "establish[es] several useful guidelines." Adair, 723 F.2d at 1409.

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The reservation was not merely for present but for Cohen's Handbook § 19.03[2][a] ("Reserved rights future use."). To identify an Indian reservation's presumably attach to all water sources—groundwater, purposes, the Ninth Circuit considers "the [reservation's streams, lakes, and springs—that arise on, border, formative] document and circumstances surrounding traverse, underlie, or are encompassed within Indian its creation, and the history of the Indians for whom it reservations."). Instead, the relevant legal constraints was created," as well as the tribe's "need to maintain under Winters and its progeny are whether (1) the themselves under changed circumstances." Walton, reserved water is necessary to fulfill the purposes of the 647 F.2d at 47 (citing United States v. Winans, 198 U.S. reservation and (2) the reserved water is appurtenant to 371, 381, 25 S. Ct. 662, 49 L. Ed. 1089 (1905)); accord the reserved land. Walton, 647 F.2d at 46. United States v. Washington, 375 F. Supp. 2d 1050, 1064 (W.D. Wash. 2005), vacated pursuant to a. The reservation's purpose settlement, Lummi Indian Nation v. Washington, No. C01-0047Z, 2007 U.S. Dist. LEXIS 86162, 2007 WL The documents contemporaneous with the creation of 4190400 (W.D. Wash. Nov. 20, 2007). the Agua Caliente's reservation are vague, which is not surprising because they're approximately 150 years HN7 Cases addressing [*16] Winters rights proceed in old. But those documents do admit that the reservation two distinct analytical steps. Courts first examine the intended to provide the Tribe with a home, and intended existence of reserved rights—usually a straightforward to do so with some measure of permanence. [*18] inquiry. Then comes quantification, which addresses Walton guides the interpretation of the Agua Caliente's the scope of the government's implication. See, e.g., reservation's purpose. In Walton, like in this case, the New Mexico, 438 U.S. at 698, 718 (first restating Winters President created the reservation by terse Executive rule, then deciding Congress intended to reserve water Order in the era following the Civil War, 647 F.2d at 47 from the Rio Mimbres "only where necessary to preserve n.8, and the Ninth Circuit cautioned: HN9 "[t]he specific the timber or to secure favorable water flows for private purposes of an Indian reservation, however, were often and public uses under state law"); Cappaert, 426 U.S. unarticulated. The general purpose, to provide a home at 138-46 (addressing whether the government reserved for the Indians, is a broad one and must be liberally water in connection with the addition of Devil's Hole to construed." Id. at 47. The court there held the tribe's the Death Valley National Monument, and then ruling reserved rights extended to agricultural uses as well as that distant groundwater pumping could be enjoined to the "development and maintenance of replacement protect the federal reservation); Walton, 647 F.2d at 47 fishing grounds" due to the economic and religious ("We hold that water was reserved when the . . . importance of fishing to the tribe. Id. at 48. [r]eservation was created. . . . The more difficult question concerns the amount of water reserved."). The upshot Accordingly, HN10 the Court must both construe the of this well-established framework, especially in light of general purposes of the Tribe's reservation broadly, and the parties' agreement to split this case into three take account that Winters rights anticipate increased or phases, is that the Court addresses here only the novel future uses. See also Ahtanum Irrigation Dist., existence of the Tribe's Winters rights; quantification 236 F.2d at 326. Applying those tenets, the Court can comes later. safely state that the reservation implied at least some water use; but exactly how much is not a question 2. The federal government impliedly reserved water presented by Phase I of this case. for the Tribe's reservation b. Groundwater is appurtenant to the Tribe's When Presidents Grant and Hayes [*17] withdrew reservation portions of the Coachella valley from the public domain by Executive Order to create the Agua Caliente's Any attempt to limit appurtenant water sources to reservation, they also reserved, by implication, the right surface water fails as a matter of law and logic. For to appurtenant water in the amount necessary "to fulfill example, HN11 California law [*19] recognizes that the purposes of the reservation." Cf. Walton, 647 F.2dat groundwater rights are inextricably linked to the 46-47. HN8 No case interpreting Winters draws a overlying land. See City of Barstow v. Mojave Water principled distinction between surface water physically Agency, 23 Cal. 4th 1224, 1240, 99 Cal. Rptr. 2d 294, 5 located on a reservation and other appurtenant water P.3d 853 (2000) ("An overlying right, analogous to that sources. See, e.g., Cappaert, 426 U.S. at 143; see also of a riparian owner in a surface stream, is the right of the

Chase Nielson Page 10 of 14 2015 U.S. Dist. LEXIS 49998, *19 owner of the land to take water from the ground 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342 underneath for use on his land within the basin or (1989).5 watershed; the right is based on ownership of the land and is appurtenant thereto.") (internal quotation marks HN13 Appurtenance, as that term is used by the Winters omitted). And federal law, at least by implication, treats doctrine, must provide some legal limitation to impliedly reserved water [*21] rights; but persuasive authority surface water and groundwater similarly. See Cap- suggests that limit should not be drawn between surface paert, 426 U.S. at 143 (holding the United States can and groundwater sources. Cf. Cappaert, 426 U.S. at "protect its water from subsequent diversion, whether 142-43 (emphasizing the relation between surface water the diversion is of surface water or groundwater"). Taken and groundwater in the hydrologic cycle). The federal together, these authorities suggest that groundwater government intended to reserve water for the Tribe's provides an appurtenant water source, in the Winters use on its reservation. Rights to the groundwater sense. underlying the reservation are appurtenant to the reservation itself. Accordingly, the Court concludes the With one exception, every court to address the issue federal government impliedly reserved groundwater, as agrees that HN12 Winters rights encompass well as surface water, for the Agua Caliente when it groundwater resources, as well as surface water, created the reservation. Whether groundwater appurtenant to reserved land. See, e.g., Washington, resources are necessary to fulfill the reservation's No. C01-0047Z, 2003 U.S. Dist. LEXIS 28980, at purpose, however, is a question that must be addressed *41(W.D. Wash. Feb. 24, 2003) ("Thus, as a matter of in a later phase of this litigation. law the Court concludes that the reserved water rights doctrine extends to groundwater even if groundwater is 3. Defendants' arguments are largely irrelevant to not connected to surface water."); Tweedy v. Texas Co., Phase I issues 286 F. Supp. 383, 385 (D. Mont. 1968) ("The Winters case dealt only with the surface water, but the same The parties agreed to address two discrete questions in Phase I of this case. The first, and the one relevant to [*20] implications which led the Supreme Court to hold much of Defendants' written submissions, asks for that surface waters had been reserved would apply to clarification of the Tribe's Winters rights—namely underground waters as well. The land was arid—water whether they could extend to groundwater underlying would make it more useful, and whether the waters the reservation. DWA and CVWD have argued were found on the surface of the land or under it should extensively in their briefing that any Winters rights make no difference."); In re Gila River Sys. & Source, possessed by the Agua Caliente do not extend to [*22] 195 Ariz. 411, 989 P.2d 739, 747 (Ariz. 1999) ("The groundwater. Their contentions, however, mainly talk significant question for the purpose of the reserved past whether Winters rights include groundwater, and rights doctrine is not whether the water runs above or focus on the quantum of the Tribe's entitlement. below the ground but whether it is necessary to accomplish the purpose of the reservation."); Confed- Defendants' arguments largely take two forms. First, erated Salish & Kootenai Tribes v. Stults, 2002 MT 280, Defendants contend that principles of federalism and 312 Mont. 420, 59 P.3d 1093, 1099 (Mont. 2002) ("We comity counsel against an extension of Winters rights to see no reason to limit the scope of our prior holdings by California groundwater resources. Second, Defendants excluding groundwater from the Tribes' federally claim the Tribe is able to function adequately under reserved water rights in this case."). But see In re Big California's groundwater allocation framework without Horn River Sys., 753 P.2d 76, 99-100 (Wyo. 1988), aff'd resort to Winters rights, so an asserted right beyond by an equally divided court, Wyoming v. United States, their current allotment is not necessary to prevent the

5 The Wyoming Supreme Court admitted that "[t]he logic which supports a reservation of surface water to fulfill the purpose of the reservation also supports reservation of groundwater," but nevertheless ruled against the extension of Winters rights because "not a single case applying the reserved water doctrine to groundwater is cited to us." 753 P.2d at 99. The weight of authority on the issue has shifted.

Chase Nielson Page 11 of 14 2015 U.S. Dist. LEXIS 49998, *22 reservation's purpose from being entirely defeated.6 impliedly reserved water, notwithstanding later-enacted Neither argument withstands scrutiny. statutes which promoted other uses of the Forest, like "outdoor recreation" or "wildlife and fish purposes." Id. It is neither novel nor controversial that HN14 Winters at 714-15. The Court drew on the legislative history of rights derive from federal law, and thus displace state the Multiple-Use Sustained-Yield Act of 1960 to hold the law when in conflict. E.g., Cappaert, 426 U.S. at 138-39. subsequently designated purposes were "secondary," The case law specifically holds that the Winters doctrine meaning they were not "so crucial as to require a does not entail a "balancing test" of competing interests reservation of additional water." Id. at 715. As noted to determine the existence or scope of reserved rights. above, HN16 the Ninth Circuit has held the reasoning of Id. Moreover, the California legislature acknowledges New Mexico only "establishes useful guidelines" for the supremacy of federal water rights, and acquiesces tribal reservation cases, and courts should instead focus in their priority. See Cal. Water Code § 10720.3 (HN15 on the broader command that Winters rights encompass "[I]n the management of a groundwater basin or [*25] "only that amount of water necessary to fulfill the subbasin by a groundwater sustainability agency or by purpose of the reservation, no more." Adair, 723 F.2d at the board, federally reserved rights to groundwater 1408-09. shall be respected in full. In case of conflict between In this case there are no subsequent enactments that federal and state law in that . . . management, federal impact the purposes of the Tribe's reservation, although law shall prevail.") (emphasis added). Therefore, to be sure the government augmented the reservation's Defendants' arguments regarding federal-state relations territory over time. The reservation's purposes remain run counter to both federal and state law. the same as when the government created the reservation—to provide the Agua Caliente with a Defendants' additional arguments hinge on an unduly permanent homeland. The Ninth Circuit has specifically restrictive reading of United States v. New Mexico, and emphasized such a purpose's elasticity; HN17 a tribal a misapprehension of [*24] that case's subsequent reservation's reason for being is not etched in stone, but application by the Ninth Circuit to cases which involve shifts to meet future needs. See Walton, 647 F.2d at tribal rights. In the New Mexico case, the Supreme 47-48; Ahtanum Irrigation Dist., 236 F.2d at 326. Court addressed the scope of reserved rights in the Rio Mimbres's water connected to the government's Despite Defendants' insistent reliance on New Mexico, creation of the Gila National Forest. 438 U.S. at 697-98. that case's reasoning simply does not impact Phase I of Congress established that Forest, among many others, this litigation.7 Of course, delineating the reservation's pursuant to the Organic Administration Act of 1897, purpose will ultimately dictate the breadth of the Tribe's which intended the National Forests to "conserve water Winters rights, but the Agua Caliente's reservation, at a flows, and to furnish a continuous supply of timber for minimum, provides the Tribe with a homeland for now the people." Id. at 706. The Supreme Court held those and for the future, and Winters ensures a federal right to two purposes the only ones for which the government appurtenant water to realize that end.

6 Although greatly simplified by the Court, this argument makes up a large portion of DWA's substantive briefing. For example, DWA argues (1) the Tribe has a correlative right to groundwater under California law, which, like all other groundwater users is subject to a state constitutional standard of reasonable use, so the Tribe may access those resources without a declaration of Winters rights just like any other overlying landowner; (2) the Tribe has not drilled wells on its property, so groundwater is not necessary for [*23] the reservation; and (3) the United States only requested a certain amount of surface water in the 1938 state court adjudication of the Whitewater system, so that amount is adequate to satisfy the needs of the reservation.

7 Defendants also argue that individual allottees and lessees of reservation land have no claim to reserved water rights because (1) the Tribe has no such right and (2) [*26] resort golf courses, of the kind maintained by some lessees, do not fit Defendants' conception of the Tribe's reservation's purpose. Contentions regarding the derivative rights of allottees and lessees fail for the same reasons their other arguments fail—they are simply not relevant to Phase I of this case. HN18 It is well-established that "Indian allottees have a right to use a portion of . . . reserved water." Adair, 723 F.2d at 1415. Additionally, "the full quantity of water available to the Indian allottee thus may be conveyed to the non-Indian purchaser," Walton, 647 F.2d at 51, which logic surely translates to lessees. Thus, for the same reasons Defendants other arguments fail, this one fails as well due to its derivative nature. To the extent Defendants wish to argue that resort golf courses, or any other use, does not fall within the class of permissible uses under the Winters doctrine, it may so argue in later phases of this case, which will deal with the scope of the implied reservation.

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Accordingly, the Tribe and the United States are entitled bring a federal common law action to enforce ownership to partial summary judgment on the Phase I issue of rights."). Aboriginal property rights which arise under whether the Tribe's federally reserved water rights federal law are not "ownership rights," but rather are encompass groundwater underlying the reservation. "right[s] of occupancy granted by the conquering sovereign . . . [and are] therefore necessarily a creature B. The Tribe's claim to an [*27] aboriginal of the conquering sovereign's law." Id. at 642.10 Chief groundwater right fails Justice Marshall, in Johnson v. M'Intosh, 21 U.S. 543, 5 L. Ed. 681 (1823), laid down the rule [*29] that "the The Tribe's second claim in this lawsuit asserts an conquering government acquires the exclusive right to aboriginal right to use groundwater beneath the extinguish Indian title." Chunie, 788 F.2d at 642 Coachella valley, with a priority date of time . Any immemorial.8 Simplified, the Agua Caliente's aboriginal such divestment of original Indian title is purely a matter rights argument proceeds thusly: federal law recognizes of Congressional prerogative. United States v. Santa Fe certain rights connected to original Indian occupancy; Pac. R. Co., 314 U.S. 339, 347, 62 S. Ct. 248, 86 L. Ed. lands encompassed by the Treaty of Guadalupe 260 (1941). And although the Supreme Court has noted Hidalgo9 fall under the original occupancy doctrine; the extinguishment could be accomplished by "treaty . . . Tribe has continually and exclusively occupied the sword . . . exercise of complete dominion adverse to the Coachella valley, which was ceded as part of the Treaty right of occupancy, or otherwise," id., a federal statute of Guadalupe Hidalgo, since centuries before other embodies a more typical legislative divestment. See id. settlers; so the Agua Caliente possess an aboriginal at 347-48 (discussing in depth the effects of various right to groundwater underlying its reservation. (Tribe's statutes on competing land claims). Mot. for Summ. J. at 18-23.) In opposition to the Tribe's aboriginal rights claim, Defendants point out that The United States ratified the Treaty of Guadalupe Congress, via an 1851 statute, required the presentation Hidalgo in 1948. California was admitted as a state in of land claims in California to a commission for 1850. Shortly after California's admission, in order to validation, the Tribe did not assert such a claim, so the "protect property rights of former Mexican citizens in the land the Tribe occupied in the Coachella valley reverted newly-acquired territory and to settle land claims, to the public domain. The Tribe's claim to an aboriginal Congress passed the Act of March 3, 1851, ch.41, 9 occupancy right fails. Stat. 631," ("Act of 1851"). Chunie, 788 F.2d at 644. Three of the Act of 1851's numerous provisions impact HN19 Federal law recognizes a tribe's property right this case: section 8 instituted a land claims process for arising out of original territorial occupancy. See United people claiming property rights [*30] in California; States ex rel. Chunie v. Ringrose, 788 F.2d 638, 641-42 section 13 imposes a two-year time limit for presenting (9th Cir. 1986) ("Indian's aboriginal title derives from land claims; and section 16 imposed a "duty [on] the their presence on the land before the arrival of white commissioners herein provided for to ascertain and settlers.") (citing Tee-Hit-Ton Indians v. United States, report . . . the tenure by which the mission lands are 348 U.S. 272, 279, 75 S. Ct. 313, 99 L. Ed. 314, 130 Ct. held, and those held by civilized Indians." See Barker v. Cl. 839, 15 Alaska 418 (1955)); see also Cohen's Hand- Harvey, 181 U.S. 481, 483-85, 21 S. Ct. 690, 45 L. Ed. book § 15.04[3] ("A tribe with original Indian title may 963 (1901).11

8 The United States' complaint in intervention did not press such a claim and [*28] neither did its motion for summary judgment on Phase I issues. The United States' opposition to Defendants' motion for summary judgment, however, argues in favor of such an aboriginal right.

9 The Treaty of Guadalupe Hidalgo, signed by the United States and Mexico in 1848, ended the Mexican—American War. See Summa Corp. v. California, 466 U.S. 198, 202, 104 S. Ct. 1751, 80 L. Ed. 2d 237 (1984). Under the terms of the Treaty, Mexico ceded much of what is now considered the American Southwest to the United States, including the territory that would later become the states of California, Nevada, and Utah, and parts of Arizona, New Mexico, Colorado, and Wyoming. 10 Like the Ninth Circuit has done past cases,HN20 in the absence of any argument that "the Spanish or Mexican law of aboriginal title differs from our own, [the Court] will assume that it does not." Chunie, 788 F.2d at 642.

11 The Act of 1851's Section 8 states: HN21 "[t]hat each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government shall present the same to the said commissioners . . . ." Barker, 181

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HN23 Federal courts construe sections 8 and 13 lost all rights in the land when they failed to present a broadly; together they bar Indians who failed to assert claim to the commissioners."). original occupancy claims within the statutory two-year In this case, the Tribe alleges they have occupied the window from relying on such a right in future disputes: Coachella valley since time immemorial. Within the [The Supreme Court], after observing . . . the United framework established by Barker and Chunie, that States was bound to respect the rights of private means they held an aboriginal right of occupancy under property in the ceded territory, said there could be Mexican law, and then a right of occupancy under no doubt of the power of the United States, United States law following the Treaty of Guadalupe consistently with such [*31] obligation, to provide Hidalgo. The Tribe admits that no claim was filed on its reasonable means for determining the validity of all behalf as part of the claims process under the Act of titles within the ceded territory, to require all claims 1851, (Doc. No. 82-3 Ex. 1-10), so like the Indians in all to lands therein to be presented for examination, other cases interpreting the Act of 1851, the Agua and to declare that all not presented should be Caliente's aboriginal claim was effectively extinguished regarded as abandoned. The Court further said the after the two-year claims window closed, and its territory purpose of the act of 1851 was to give repose to subsumed within the public domain. titles as well as to fulfill treaty obligations, and that it Citing Cramer v. United States, 261 U.S. 219, 43 S. Ct. not only permitted, but required, all claims to be 342, 67 L. Ed. 622 (1923), the Tribe argues alternatively presented to the commission, and barred all from that even if the Act of 1851 extinguished its aboriginal future assertion which were not presented within title, the Tribe re-established such a right by continuous the 2 years. occupancy from 1853 until the creation [*33] of its reservation in 1876.12 (Tribe's Mot. for Summ. J. at 23.) United States v. Title Ins. & Trust Co., 265 U.S. 472, But even if the Tribe did reclaim a title of original 483, 44 S. Ct. 621, 68 L. Ed. 1110 (1924); see also occupancy in the 23 years between the time its claim Summa Corp. v. California ex rel. State Lands Comm'n, was extinguished and the creation of its reservation, the 466 U.S. 198, 208, 104 S. Ct. 1751, 80 L. Ed. 2d 237 reservation effectively re-extinguished that right. (1984) (explaining that the Title Insurance case "applied Reservation, recall, means the United States withdraws [the Court's] decision in Barker to hold that because the land which it then "set[s] apart for public uses." Hagen, Indians failed to assert their interest within the timespan 114 S. Ct. at 966. HN25 Aboriginal rights are based on established by the 1851 Act, their claimed right of "actual, exclusive, and continuous use and occupancy occupancy was barred"); Santa Fe, 314 U.S. at 351 'for a long time' of the claimed area," Native Vill. of Eyak (discussing Barker and Title Insurance, and noting "the v. Blank, 688 F.3d 619, 622 (9th Cir. 2012). Accordingly, Act of 1851 was interpreted as containing machinery for an aboriginal right of occupancy is fundamentally extinguishment of claims, including those based on incompatible with federal ownership. Indian right of occupancy"). The Supreme Court has held repeatedly that, HN24 despite the Act of 1851's The Act of 1851 extinguished the Tribe's aboriginal text, the "land confirmation proceedings were intended occupancy right, and even if the Tribe re-established to be all-encompassing" and a failure to assert aboriginal [*34] such a right it was not continuous and exclusive title within the [*32] terms of the statute would preclude and continuous once the United States created the subsequent claims to land. Chunie, 788 F.2d at 646 Agua Caliente's reservation. Accordingly, the Tribe ("Given the line of Supreme Court decisions recognizing cannot assert an original occupancy right, and the extensive reach of the Act of 1851 . . . the Chumash, Defendants are entitled to summary judgment on this claiming a right of occupancy based on aboriginal title, issue.

U.S. at 483. Section 13 holds: HN22 "[t]hat all lands, the claims to which have been finally rejected . . . and all lands the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held and considered as part of the public domain of the United States." Id. at 484. 12 One point of clarification is in order: HN26 the Tribe's asserted right to groundwater based on aboriginal title must actually connect to its claim for aboriginal title. That is, no such freestanding aboriginal rights to natural resources exist, all derive from a right to occupancy. See United States v. Shoshone Tribe, 304 U.S. 111, 116-17, 58 S. Ct. 794, 82 L. Ed. 1213, 86 Ct. Cl. 770 (1938) ("To that end the United States granted and assured to the tribe peaceable and unqualified possession of the land in perpetuity. Minerals and standing timber are constituent elements of the land itself.").

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C. Interlocutory appeal under 28 U.S.C. 1292(b) unreviewable as a practical matter due to the likelihood of settlement as the case progresses. Cf. United States HN27 Usually litigants may only appeal final judgments ex rel. Lummi Indian Nation v. Washington, No. C01- of district courts. See 28 U.S.C. § 1291. Section 1292, 0047Z, 2007 U.S. Dist. LEXIS 86162, 2007 WL however, confers appellate jurisdiction over a limited 4190400, at *1 (W.D. Wash. Nov. 20, 2007). class of interlocutory decisions by district courts, including decisions which involve "a controlling question In accordance with § 1292(b), the Court certifies this of law as to which there is substantial ground for Order for interlocutory appeal, should [*36] the parties difference of opinion and that an immediate appeal from seek review. the order may materially advance the ultimate termination of the litigation." 28 U.S.C. 1292(b); see V. CONCLUSION also Couch v. Telescope, Inc., 611 F.3d 629, 632-33 (9th Cir. 2010). The Court has attempted to address the parties' arguments within the framework set out by their own Whether Winters rights extend to groundwater, in light agreement, which was approved by the Court. The of California's correlative rights legal framework for conclusions made in this Order should be read with an groundwater allocation, effectively controls the outcome eye toward the larger picture of this litigation. of this case. The scope of this litigation would, at the very least, shrink dramatically if the issue resolves the Based on the foregoing discussion of the legal issues other way, thus "advanc[ing] the ultimate termination" of presented by Phase I of this case, the Court (1) the case. Substantial ground for difference of opinion GRANTS partial summary judgment to the Agua exists on the legal question—state supreme courts are Caliente and the United States on the claim that the split on the issue and no federal court [*35] of appeals government impliedly reserved appurtenant water 13 has passed on it. See Couch, 611 F.3d at 633. sources—including underlying groundwater—when it Additionally, the Supreme Court's decision in Cappaert created the Tribe's reservation; and (2) GRANTS partial specifically avoided deciding the issue, it chose instead summary judgment to Defendants regarding the Tribe's to construe distant groundwater as surface water. In aboriginal title claims because the Land Claims Act of this case it is undisputed that the groundwater at issue 1851, as interpreted by the Supreme Court, effectively is not hydrologically connected to the reservation's extinguished any such right. surface water, so it sits uncomfortably outside Cap- paert's explicit holding. And although not one of § IT IS SO ORDERED. 1292(b)'s factors, it's worth noting this decision may be

13 The Ninth Circuit recently explained:

HN28 To determine if a "substantial ground for difference of opinion" exists under § 1292(b), courts must examine to what extent controlling law is unclear. Courts traditionally will find that a substantial ground for difference of opinion exists where "the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point . . . or if novel and difficult questions of first impression are presented."

Couch, 611 F.3d at 633.

Chase Nielson User Name: Chase Nielson Date and Time: 06 Jul 2016 3:06 p.m. MDT Job Number: 34385002

Document(1)

1. City of Barstow v. Mojave Water Agency, 23 Cal. 4th 1224 Client/Matter: -None- Search Terms: 5 P.3d at 863 Search Type: Natural Language

City of Barstow v. Mojave Water Agency Supreme Court of California August 21, 2000, Decided No. S071728.

Reporter 23 Cal. 4th 1224; 5 P.3d 853; 99 Cal. Rptr. 2d 294; 2000 Cal. LEXIS 6115; 2000 Cal. Daily Op. Service 6973; 2000 Daily Journal DAR 9265; 31 ELR 20023 CITY OF BARSTOW et al., Plaintiffs and Respondents, could not definitively resolve water right priorities in v. MOJAVE WATER AGENCY et al., Defendants, overdrafted basin with "physical solution" relying on Cross-complainants and Respondents; JESS RANCH equitable apportionment doctrine without considering WATER COMPANY, Cross-defendant and Appellant. affected owners' legal water rights and concluding court MOJAVE WATER AGENCY et al., Cross-complainants abused its discretion when it determined and Respondents, v. MANUEL CARDOZO et al., cross-defendant was fairly apportioned its share of Cross-defendants and Appellants. water. Subsequent History: Rehearing Denied October 25, Overview 2000, Reorted at: 2000 Cal. LEXIS 8284. Plaintiffs city and water company filed action against Prior History: Superior Court of California, Riverside defendants city, water agency, and other upstream water County. Super. Ct. No. 208568. Erik Michael Kaiser, producers, claiming that their groundwater production Judge. was adversely impacting plaintiffs' water supply, and that they contributed to the entire Mojave River Basin Court of Appeal of California, Fourth Appellate District, overdraft. The trial court ordered a physical solution to Division Two. Nos. E017881, E018923, E018023 and which 200 parties stipulated. The physical solution did E018681. not apportion production rights on the basis of Disposition: We affirm the Court of Appeal judgment in cross-defendants' preexisting legal water rights. The all respects except that we reverse its judgment as to Court ofAppeal reversed the trial court judgment against the Jess Ranch appeal. We therefore remand the matter cross-defendants, a group of overlying owners, directing to the Court ofAppeal for further proceedings consistent the trial court to enter its order excluding them from its with this conclusion. judgment and granting them injunctive relief to protect their water rights. Case law did not support applying an Core Terms equitable apportionment to water use claims unless all claimants had correlative rights. Contrary to plaintiffs' contention, an equitable apportionment solution could rights, water rights, basin, physical solution, trial court, overlying, appropriator, parties, producers, overdraft, not disregard overlying owners' existing rights. groundwater, riparian, equitable apportionment, Cross-defendant aquaculture producer's use was priorities, equitable, overlying owner, beneficial use, reasonable and beneficial. stipulating, users, prescription, appropriation right, prescriptive right, pumping, water use, allowance, River, Outcome subarea, annual, waters, surplus Judgment affirmed in all respects except that reversed its judgment as to the cross-defendant aquaculture Case Summary producer. A trial court should have considered the affected owners' legal water rights when it resolved Procedural Posture water right priorities in an overdrafted basin with a Cross-defendant overlying water producers challenged physical solution that relied on the equitable order from California Court of Appeal holding trial court apportionment doctrine.

Chase Nielson Page 2 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294

LexisNexis® Headnotes HN6 One with overlying rights has rights superior to that of other persons who lack legal priority, but is nonetheless restricted to a reasonable beneficial use. Real Property Law > Water Rights > General Overview Thus, after first considering this priority, courts may limit Real Property Law > Water Rights > Groundwater it to present and prospective reasonable beneficial uses, Real Property Law > Water Rights > Riparian Rights consonant with Cal. Const. art. X, § 2.

HN1 Riparian rights are special rights to make use of Governments > State & Territorial Governments > water in a waterway adjoining the owner's property. Property > Water Rights Overlying rights are special rights to use groundwater Real Property Law > Water Rights > Appropriation Rights under the owner's property. Real Property Law > Water Rights > Beneficial Use

Governments > State & Territorial Governments > HN7 The right of an appropriator depends upon the Property > Water Rights actual taking of water. Where the taking is wrongful, it Real Property Law > Encumbrances > Limited Use Rights > may ripen into a prescriptive right. Any person having a Usufruct legal right to surface or ground water may take only Real Property Law > Water Rights > Riparian Rights such amount as he reasonably needs for beneficial purposes. Any water not needed for the reasonable HN2 Both riparian and overlying water rights are beneficial use of those having prior rights is excess or usufructuary only, and while conferring the legal right to surplus water and may rightly be appropriated on use the water that is superior to all other users, confer privately owned land for non-overlying use, such as no right of private ownership in public waters. devotion to public use or exportation beyond the basin or watershed. Governments > State & Territorial Governments > Property > Water Rights Governments > State & Territorial Governments > Real Property Law > Water Rights > Riparian Rights Property > Water Rights Real Property Law > Water Rights > Appropriation Rights HN3 The state does not have the right to possess and use the water to the exclusion of others and has only HN8 When there is a surplus of water, the holder of prior such riparian, overlying, or appropriative rights as it rights may not enjoin its appropriation. may obtain by law; its interest is therefore not an ownership interest, but rather a nonproprietary, Governments > State & Territorial Governments > regulatory one. Property > Water Rights

Governments > State & Territorial Governments > HN9 Proper overlying use is paramount and the rights Property > Water Rights of an appropriator, being limited to the amount of the water surplus, must yield to that of the overlying owner HN4 Courts typically classify water rights in an in the event of a water shortage, unless the appropriator underground basin as overlying, appropriative, and has gained prescriptive rights through the adverse, prescriptive. open and hostile taking of nonsurplus waters. As between overlying owners, the rights, like those of Governments > State & Territorial Governments > Property > Water Rights riparians, are correlative; each may use only his reasonable share when water is insufficient to meet the Real Property Law > Water Rights > Riparian Rights needs of all. HN5 An overlying right, analogous to that of the riparian owner in a surface stream, is the owner's right to take Governments > State & Territorial Governments > water from the ground underneath for use on his land Property > Water Rights within the basin or watershed; it is based on the Real Property Law > Water Rights > Appropriation Rights ownership of the land and is appurtenant thereto. HN10 As between appropriators, the one first in time is Governments > State & Territorial Governments > the first in right, and a prior appropriator is entitled to all Property > Water Rights the water he needs, up to the amount he has taken in

Chase Nielson Page 3 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294 the past, before a subsequent appropriator may take uses, the trial court must then determine whether there any. is a surplus in the water field subject to appropriation.

Governments > State & Territorial Governments > Governments > State & Territorial Governments > Property > Water Rights Property > Water Rights

HN11 Prescriptive rights are not acquired by the taking HN14 Although what is a reasonable use of water of surplus or excess water. But an appropriative taking depends on the circumstances of each case, such an of water which is not surplus is wrongful and may ripen inquiry cannot be resolved in vacuo isolated from into a prescriptive right where the use is actual, open statewide considerations of transcendent importance. Paramount among these we see the ever increasing and notorious, hostile and adverse to the original owner, need for the conservation of water in this state, an continuous and uninterrupted for the statutory period of inescapable reality of life quite apart from its express five years, and under claim of right. Even these acquired recognition in Cal. Const., art. X, § 2. rights, however, may be interrupted without resort to the legal process if the owners engage in self-help and Governments > State & Territorial Governments > retain their rights by continuing to pump nonsurplus Property > Water Rights waters. Real Property Law > Water Rights > General Overview Governments > State & Territorial Governments > Real Property Law > Water Rights > Water Dispute Property > Water Rights Procedures Real Property Law > Water Rights > General Overview Real Property Law > Water Rights > Riparian Rights

Real Property Law > Water Rights > Beneficial Use HN15 Cal. Const., art. X, § 2 dictates the basic principles Real Property Law > Water Rights > Groundwater defining water rights: that no one can have a protectable interest in the unreasonable use of water, and that Real Property Law > Water Rights > Riparian Rights holders of water rights must use water reasonably and HN12 Cal. Const., art. X, § 2 limits water rights to beneficially. reasonable and beneficial uses. The rule of reasonable use as enjoined by the Constitution applies to all water Governments > State & Territorial Governments > rights enjoyed or asserted in California, whether the Property > Water Rights same be grounded on the riparian right or the right, Real Property Law > Water Rights > Administrative analogous to the riparian right, of the overlying land Allocations owner, or the percolating water right, or the appropriative Real Property Law > Water Rights > Appropriation Rights right. Real Property Law > Water Rights > Beneficial Use Governments > State & Territorial Governments > Property > Water Rights HN16 The trial court must fix the quantity required by each right holder for his actual reasonable beneficial Real Property Law > Water Rights > Beneficial Use uses, the same as it would do in the case of an Real Property Law > Water Rights > Riparian Rights appropriator. This court determined that what is a beneficial use at one time may, because of changed HN13 It is clear that when a riparian or overlying owner conditions, become a waste of water at a later time. brings an action against an appropriator, it is no longer Because the court cannot fix or absolutely ascertain the sufficient to find that the plaintiffs in such action are quantity of water required for future use at any given riparian or overlying owners, and, on the basis of such time, a trial court should declare prospective uses finding, issue the injunction. It is now necessary for the paramount to the appropriator's rights, so the trial court to determine whether such owners, appropriator cannot gain prescriptive rights in the use. considering all the needs of those in the particular water Until the paramount right holder needs it, the field, are putting the waters to any reasonable beneficial appropriator may continue to take water. uses, giving consideration to all factors involved, including reasonable methods of use and reasonable Governments > State & Territorial Governments > methods of diversion. From a consideration of such Property > Water Rights

Chase Nielson Page 4 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294

Real Property Law > Water Rights > Appropriation Rights HN21 In ordering a physical solution, therefore, a court may neither change priorities among the water rights Real Property Law > Water Rights > Riparian Rights holders nor eliminate vested rights in applying the HN17 Water right priority has long been the central solution without first considering them in relation to the principle in California water law. The corollary of this reasonable use doctrine. rule is that an equitable physical solution must preserve Governments > State & Territorial Governments > water right priorities to the extent those priorities do not Property > Water Rights lead to unreasonable use. In the case of an overdraft, riparian and overlying use is paramount, and the rights Real Property Law > Water Rights > Beneficial Use of the appropriator must yield to the rights of the riparian HN22 Under California law, proper overlying use, is or overlying owner. paramount, and the right of an appropriator, being limited to the amount of the water surplus, must yield to that of Governments > State & Territorial Governments > the overlying owner in the event of a water shortage Property > Water Rights unless the appropriator has gained prescriptive rights Real Property Law > Water Rights > General Overview through the taking of nonsurplus waters.

Real Property Law > Water Rights > Administrative Governments > State & Territorial Governments > Allocations Property > Water Rights Real Property Law > Water Rights > Water Dispute Real Property Law > Water Rights > Appropriation Rights Procedures Real Property Law > Water Rights > Groundwater HN18 Case law simply does not support applying an HN23 While the rights of all overlying owners in a equitable apportionment to water use claims unless all groundwater basin are correlative, and subject to claimants have correlative rights; for example, when cutbacks when the basin is overdrafted, overlying rights parties establish mutual prescription. are superior to appropriative rights.

Governments > State & Territorial Governments > Governments > State & Territorial Governments > Property > Water Rights Property > Water Rights

HN19 Within limits, a trial court may use its equitable HN24 When the water is insufficient, overlying owners powers to implement a physical solution. A court has are limited to their proportionate fair share of the total power to make reasonable regulations for water use, amount available based upon their reasonable needs. provided they protect the one enjoying paramount rights. A trial court has the power to enforce an equitable Governments > State & Territorial Governments > solution even if all parties do not agree to it, but the court Property > Water Rights may not unreasonably burden any party. A physical Real Property Law > Water Rights > Groundwater solution is generally a practical remedy that does not affect vested rights. A prior appropriator cannot be HN25 Overlying pumpers are not under an affirmative compelled to incur any material expense in order to duty to adjudicate their groundwater rights, because accommodate the subsequent appropriator. they retain them by pumping.

Governments > State & Territorial Governments > Civil Procedure > Preliminary Considerations > Equity > Property > Water Rights General Overview

HN20 A trial court may impose a physical solution to HN26 Equity demands that similarly situated parties be achieve a practical allocation of water to competing treated similarly. interests, but the solution's general purpose cannot simply ignore the priority rights of the parties asserting them. Headnotes/Syllabus

Governments > State & Territorial Governments > Summary Property > Water Rights CALIFORNIA OFFICIAL REPORTS SUMMARY

Chase Nielson Page 5 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294

In a river basin area that encompassed several cities, Headnotes the demand for water exceeded the natural supply, CALIFORNIA OFFICIAL REPORTS HEADNOTES resulting in an overdraft condition. One of the affected Classified to California Digest of Official Reports cities and a water company brought an action against an upstream city, the local water agency, and other CA(1) (1) upstream water users, seeking a guaranty of an Waters § 3 > Public Policy as to Use of Waters > Effect on adequate annual water flow and the importation of Owners' Riparian and Overlying Water Rights. supplemental water. The agency cross-complained against substantially all water users within the basin. --Riparian rights are special rights to make use of water Some of the parties stipulated to a physical solution, in a waterway adjoining the owner's property. Overlying which allotted a yearly free water allowance to each rights are special rights to use groundwater under the stipulating party, and required each to pay a fee for owner's property. Both riparian and overlying water excess water. The trial court, disregarding the rights are usufructuary only, and while conferring the preexisting legal water rights of the nonstipulating legal right to use the water that is superior to all other parties, found that the physical solution, based on the users, confer no right of private ownership in public doctrine of equitable apportionment, was fair and waters. The state's interest in the public groundwater equitable to them, and entered judgment accordingly. and surface waters is to make water policy that (Superior Court of Riverside County, No. 208568, Erik preserves and regulates it. The state does not have the Michael Kaiser, Judge.) The Court of Appeal, Fourth right to possess and use the water to the exclusion of Dist., Div. Two, Nos. E017881, E018923, E018023 and others and has only such riparian, overlying, or E018681, reversed the trial court's judgment against a appropriative rights as it may obtain by law; its interest nonstipulating group of alfalfa and dairy farmers, finding is therefore not an ownership interest, but rather a that the trial court erred in failing to consider their water rights. It also reversed the trial court's judgment as it nonproprietary, regulatory one. applied to an aquaculture (trout production) company, finding that the company, which had stipulated to the CA(2) (2) physical solution, was not given an allowance equal to Waters § 82 > Underground Waters > Water Rights > its actual production (water use). The court affirmed the Classification. physical solution as to the stipulating parties. --Courts typically classify water rights in an underground The Supreme Court reversed the Court of Appeal's basin as overlying, appropriative, or prescriptive. An judgment as to the aquaculture company and remanded overlying right, analogous to that of the riparian owner to that court for further proceedings. In all other respects, in a surface stream, is the owner's right to take water the court affirmed the judgment. The court held that the from the ground underneath for use on his or her land trial court erred in disregarding the legal water rights of within the basin or watershed; it is based on the the alfalfa and dairy farmers. In ordering a physical ownership of the land and is appurtenant thereto. One solution, a court may neither change priorities among with overlying rights has rights superior to that of other the water rights holders nor eliminate vested rights in persons who lack legal priority, but is nonetheless applying the solution. Having shown ownership, restricted to a reasonable beneficial use. Thus, after extraction, and beneficial use of the underground water, first considering this priority, courts may limit it to present these farmers established overlying rights, and no claim and prospective reasonable beneficial uses, consonant of prescription had been asserted to reduce their with Cal. Const., art. X, § 2. retained overlying rights. The court also held that the trial court did not err in determining the water allowance CA(3) (3) due the aquaculture company, since it was reasonable Waters § 37 > Appropriation of Water > Scope and Extent to differentiate this company, along with 26 other of Right. producers that recirculated water, from others that did not recirculate water. (Opinion by Chin, J., with George, --The right of an appropriator depends upon the actual C. J., Mosk, Kennard, Baxter, and Brown, JJ., and taking of water. Where the taking is wrongful, it may Johnson, J., * concurring.) ripen into a prescriptive right. Any person having a legal

* Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.

Chase Nielson Page 6 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294 right to surface water or groundwater may take only appropriator, it is not sufficient to find that the plaintiffs in such amount as he or she reasonably needs for such an action are riparian or overlying owners, and, on beneficial purposes. Any water not needed for the the basis of that finding, issue the injunction. It is reasonable, beneficial use of those having prior rights is necessary for the trial court to determine whether such excess or surplus water and may rightly be appropriated owners, considering all the needs of those in the on privately owned land for nonoverlying use, such as particular water field, are putting the waters to any devotion to public use or exportation beyond the basin reasonable, beneficial uses, giving consideration to all or watershed. When there is a surplus, the holder of factors involved, including reasonable methods of use prior rights may not enjoin its appropriation. Proper and reasonable methods of diversion. From a overlying use, however, is paramount, and the rights of consideration of such uses, the trial court must then an appropriator, being limited to the amount of the determine whether there is a surplus in the water field surplus, must yield to that of the overlying owner in the subject to appropriation. What is a reasonable use of event of a shortage, unless the appropriator has gained water depends on the circumstances of each case. This prescriptive rights through the adverse, open, and provision carefully preserves riparian and overlying hostile taking of nonsurplus waters. As between rights, while abolishing that aspect of the common law overlying owners, the rights, like those of riparians, are doctrine that entitled a riparian owner, as against an correlative; each may use only his or her reasonable upstream appropriator, to the entire natural flow of a share when water is insufficient to meet the needs of all. stream even if the use of the water was wasteful or As between appropriators, however, the one first in time unreasonable. is the first in right, and a prior appropriator is entitled to all the water he or she needs, up to the amount he or CA(6a) (6a) CA(6b) (6b) CA(6c) (6c) CA(6d) (6d) she has taken in the past, before a subsequent CA(6e) (6e) appropriator may take any. Waters § 40 > Priorities > Equitable Judicial Solution to Overdrafted River Basin > Regard for Preexisting Legal CA(4) (4) Water Rights. Waters § 21 > Prescriptive Water Rights > Elements and --The trial court erred in resolving water right priorities in Requisites. an overdrafted basin by imposing a physical solution --Prescriptive rights are not acquired by the taking of that relied on the equitable apportionment doctrine but surplus or excess water. But an appropriative taking of did not consider the legal water rights of a group of water which is not surplus is wrongful and may ripen alfalfa and dairy farmers in the basin. In the case of an into a prescriptive right where the use is actual, open, overdraft, riparian and overlying use is paramount, and and notorious, hostile, and adverse to the original owner, the rights of an appropriator must yield to the rights of continuous and uninterrupted for the statutory period of the riparian or overlying owner. Some type of equitable five years, and under claim of right. Even these acquired appropriation may be implemented. However, an rights, however, may be interrupted without resort to the equitable apportionment will not be applied to water use legal process if the owners engage in self-help and claims unless all claimants have correlative rights, such retain their rights by continuing to pump nonsurplus as mutual prescription.Although a trial court may impose waters. a physical solution to achieve a practical allocation of water to competing interests, the solution's general CA(5) (5) purpose cannot simply ignore the priority rights of the Waters § 40 > Priorities > Constitutional Principle of parties asserting them. In ordering a physical solution, Reasonable and Beneficial Use. therefore, a court may neither change priorities among the water rights holders nor eliminate vested rights --Cal. Const., art. X, § 2, limits water rights to reasonable without first considering them in relation to the and beneficial uses. The rule of reasonable use, as reasonable use doctrine. Having shown ownership, enjoined by the Constitution, applies to all water rights extraction, and beneficial use of the underground water, enjoyed or asserted in this state, whether they are these farmers established overlying rights. They grounded on the riparian right or the right, analogous to retained their overlying rights by pumping, and no claim the riparian right, of the overlying landowner, or the of prescription had been asserted to reduce their percolating water right, or the appropriative right. When retained overlying rights. (Disapproving City of Los An- a riparian or overlying owner brings an action against an geles v. City of San Fernando (1975) 14 Cal.3d 199

Chase Nielson Page 7 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294

[123 Cal.Rptr. 1, 537 P.2d 1250], to the extent it suggests after commencement of the prescriptive period and in dictum that courts making water allocations may before the filing of the complaint, does not necessarily disregard the priority of legal water rights in a water result in the most equitable apportionment of water basin.) according to need.Atrue equitable apportionment would take into account many more factors. If an allocation [See 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real between appropriators is to be just and equitable, strict Property, §§ 780- 783, 795- 796.] adherence to the priority rule may not be possible. Apportionment calls for the exercise of an informed CA(7) (7) judgment on a consideration of many factors. Priority of Waters § 40 > Priorities > Surplus Water. appropriation is the guiding principle. But physical and climatic conditions, the consumptive use of water in the --An overlying owner or any other person having a legal several sections of the river, the character and rate of right to surface or groundwater may take only such return flows, the extent of established uses, the amount as he or she reasonably needs for beneficial availability of storage water, the practical effect of purposes. Public interest requires that there be the wasteful uses on downstream areas, the damage to greatest number of beneficial uses which the supply upstream areas as compared to the benefits to can yield, and water may be appropriated for beneficial downstream areas if a limitation is imposed on the uses subject to the rights of those who have a lawful former--these are all relevant factors. They are merely priority. Any water not needed for the reasonable, illustrative, not an exhaustive catalogue. They indicate beneficial uses of those having prior rights is excess or the nature of the problem of apportionment and the surplus water. In California surplus water may rightfully delicate adjustment of interests which must be made. be appropriated on privately owned land for nonoverlying uses, such as devotion to a public use or CA(10a) (10a) CA(10b) (10b) CA(10c) (10c) CA(10d) exportation beyond the basin or watershed. The state's (10d) policy is to foster the beneficial use of water and Waters § 82 > Underground Waters > Water Rights > discourage waste, and when there is a surplus, whether Priority of Overlying Rights > Future Unexercised Rights. of surface water or groundwater, the holder of prior --Overlying rights take priority over appropriative rights rights may not enjoin its appropriation. Proper overlying in that if the amounts of water devoted to overlying uses use, however, is paramount, and the right of an were to consume all of a river basin's native supply, the appropriator, being limited to the amount of the surplus, overlying rights would supersede any appropriative must yield to that of the overlying owner in the event of claims by any party to the basin's native ground water a shortage, unless the appropriator has gained except insofar as the appropriative claims ripened into prescriptive rights through the taking of nonsurplus prescriptive rights. Such prescriptive rights would not waters. necessarily impair the owners' rights to groundwater for new overlying uses for which the need had not yet come CA(8) (8) into existence during the prescriptive period. Waters § 2 > Definitions and Distinctions > Pueblo Water Rights. Accordingly, overlying defendants should be awarded the full amount of their overlying rights, less any amounts --Pueblo water rights, along with riparian (including of such rights lost by prescription, from the part of the overlying) and appropriative rights, were the original supply shown to constitute native groundwater. Further, species of water rights recognized in early California as against potential appropriators, the five-year period law. Pueblo water rights apply to the municipal for establishing prescriptive rights to nonsurplus water successors of the Spanish and Mexican pueblos. may be interrupted by the overlying owners' pumping of their nonsurplus water, and overlying pumpers are not CA(9) (9) under an affirmative duty to adjudicate the rights they Waters § 38 > Appropriation of Water > Priorities Between have retained by pumping. A trial court cannot define or Appropriators > Equitable Apportionment > Factors. otherwise limit an overlying owner's future unexercised groundwater rights. Moreover, an overlying user is not --The allocation of water in accordance with prescriptive required to file an action to protect its right to pump rights mechanically based on the amounts beneficially groundwater. Thus, the laches doctrine would not bar used by each party for a continuous five-year period an action where a city increased its pumping of an

Chase Nielson Page 8 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294 overdrafted water supply long before an action was of Cross-defendants and Appellants Manuel Cardozo et commenced and development relied on the new water al. production in the interval. De Cuir & Somach, Stuart L. Somach and Elizabeth W. CA(11) (11) Johnson for Cities of Fairfield, Vacaville and Vallejo as Waters § 195 > Water Litigation > Stipulated Judgment > Amici Curiae on behalf of Cross-defendants and Differential Treatment of Parties > Allocation of Water Appellants Manuel Cardozo et al. Allowance in Overdrafted River Basin > Recirculated Water. --The trial court did not err in determining the yearly free Lemieux & O'Neill and Wayne K. Lemieux as Amici water production allowance due an aquaculture (trout Curiae on behalf of Cross-defendants and Appellants production) company, as part of a stipulated physical Manuel Cardozo et al. solution to a water shortage problem in an overdrafted river basin. Aquaculture requires recirculating water Gutierrez & Preciado, Gutierrez, Preciado & House, through fishponds, and there is little consumptive use or Calvin House and Clifton A. Baker for Cross-defendant surface evaporation. Leftover water flows out the other and Appellant Jess Ranch Water Company. end of the ponds and is applied to irrigation. From a gross annual production of 18,625 acre-feet, the trial Gary A. Ledford as Amicus Curiae on behalf of court estimated the company's total consumptive use at Cross-defendants and Appellants Manuel Cardozo et 7,480 acre-feet, using this value to set the company's al. and Jess Ranch Water Company. free production allowance. The judgment allowed the company to continue to produce recirculated water for McCormick, Kidman & Behrens, Arthur G. Kidman, aquaculture, but required it to discharge the water David D. Boyer and Bradley D. Pierce for Plaintiffs and directly into the river after this use. The trial court's Respondents City of Barstow and Southern California estimate of the company's free production allowance Water Company. was based on reasonable assumptions. Equity demands that similarly situated parties be treated Hatch and Parent, Scott S. Slater, Robert J. Saperstein, similarly. The company was one of 26 producers that Stephanie C. Osler and Kristen T. Derscheid for recirculated water. It was reasonable to differentiate California WaterAssociation asAmicus Curiae on behalf these users from others that did not recirculate water, of Plaintiffs and Respondents City of Barstow and but that put their full gross production amount to use. No Southern California Water Company. reasonable, beneficial purpose would have been served by allowing the company to retain both the amount of Brunick, Alvarez & Battersby, William J. Brunick, Amy water used and the amount recirculated. Greyson, Jeffery L. Caulfield and Mark C. Potter for Defendant, Cross-complainant and Respondent and Counsel: Covington & Crowe, Robert E. Dougherty for Cross-complainant and Respondent Mojave Water and Eric S. Vail for Cross-defendants and Appellants Agency. Manuel Cardozo et al. Daniel E. Lungren, Attorney General, Charles W. Getz Kronick, Moskovitz, Tiedemann & Girard, Thomas W. IV, Assistant Attorney General, and Marilyn H. Levin, Birmingham, Janet K. Goldsmith and Jon D. Rubin for Deputy Attorney General for Defendant, Westlands Water District as Amicus Curiae on behalf of Cross-complainant and Respondent and for Cross-defendants and Appellants Manuel Cardozo et Cross-complainant and Respondent California al. Department of Fish and Game.

Downey, Brand, Seymour & Rohwer, Kevin M. O'Brien, Alan K. Marks, County Counsel, Thomas L. Krahelski Steven P. Saxton, David R. E. Aladjem and Gwyn-Mohr and Paul M. St. John, Deputy County Counsel, for P. Tully for Northern California Water Association as Defendants, Cross-complainants and Respondents and Amicus Curiae on behalf of Cross-defendants and for Cross-complainants and Respondents Baldy Mesa Appellants Manuel Cardozo et al. Water District, Juniper Riviera County Water District, San Bernardino County Daggett Airport and San M. David Stirling, Robin L. Rivett and David E. Haddock Bernardino County Service Areas 29, 42, 64, 70C, 70G, for Pacific Legal Foundation asAmicus Curiae on behalf 70J and 70L.

Chase Nielson Page 9 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294

Boyd, Hill, Nossaman, Guthner, Knox & Elliott, Markman, Arczynski, Hanson, Curley & Slough, Nossaman, Guthner, Knox & Elliott, Frederic A. Fudacz Richards, Watson & Gershon, James L. Markman and and John Ossiff for Defendant, Cross-complainant and Boyd L. Hill for Defendant, Cross-complainant and Respondent and for Cross-complainant and Respondent and for Cross-complainant and Respondent Apple Valley Ranchos Water Company. Respondent Hesperia Water District.

Monteleone & McCrory and Thomas P. McGuire for Nino J. Mascolo and Douglas P. Ditonto for Defendant, Defendants, Cross-complainants and Respondents and Cross-complainant and Respondent and for for Cross-complainants and Respondents Victor Valley Cross-complainant and Respondent Southern Water District and City of Victorville. California Edison Company.

Best, Best & Krieger, Eric L. Garner and Arthur L. Morrison & Foerster, Kevin T. Haroff and Kimberly Littleworth for Defendant, Cross-complainant and McMorrow for Santa Clara Valley Water District as Respondent and for Cross-complainant and Amicus Curiae on behalf of Defendants, Respondent Rancho Las Flores Limited Partnership. Cross-complainants and Respondents and Cross-complainants and Respondents Mojave Water Therese Exline Parker for Defendants, Agency et al. Cross-complainants and Respondents and for Cross-complainants and Respondents Alfredo Horton, Knox, Carter & Foote, John Penn Carter and Arguelles, Richard F. Barak, Charles Bell, Lillian Paul D. Engstrand for Imperial Irrigation District as Borgogno, John Thomas Carter, Marshall Chuang, Amicus Curiae. George Ronald Dahlquist,Alan DeJong, Frank T.Duran, Trinidad L. Gaeta, Wayne D. Gesiriech, S. Harold Gold, Nancy N. McDonough and David J. Guy for California Ciril Gomez Living Trust, Daniel C. Gray, Karen Gray, Farm Bureau Federation as Amicus Curiae. Nick Grill, Merlin Gulbranson Excavating, Scott Hert, Melvin Hill, John Hosking, Jean Hosking, Larry Johnson, Boyd, Hill, Nossaman, Guthner, Knox & Elliott, Hoon Ho Kim, H. Leslie Levin, J. Peter Lounsbury, Ken Nossaman, Guthner, Knox & Elliott, Frederic A. Fudacz Luth, The 160 Newberry Ranch Limited Partnership, and John Ossiff for Main San Gabriel Basin Watermaster Meadowbrook Dairy, Newberry Ranch, George Parker, Ruth Parker, Trinidad Perez, Daniel Pettigrew, Howard and Raymond Basin Management Board as Amici Pettigrew, John S. Pettis, Joan C. Randolph, Bill Curiae. Resseque, Charles Short, Robert A. Smith, Wayne A. Soppeland, Stanley Stewart, Patricia Stewart, Edward Louise Renne, City Attorney San Francisco, Vicki W. Stringer, Thomas Taylor, Carole Taylor, Dale Thomas, Clayton and Donn W. Furman, Deputy City Attorneys; Ronald Thomas, James A. Thompson, Cornelius Van Ellison & Schneider, Anne J. Schneider and Barbara A. Diest, Van Leuwen Family Trust,Albert H. Vogler, Ykema Brenner for City and County of San Francisco asAmicus Trust, Ykema Harmsen Dairy, Keith Young and Margie Curiae. Young. O'Laughlin & Paris and Tim O'Laughlin for San Joaquin Redwine and Sherrill and Steven B. Abbott for Tributaries Association as Amicus Curiae. Defendants, Cross-complainants and Respondents and for Cross-complainants and Respondents Lake Minasian, Spruance, Baber, Meith, Soares & Sexton for Arrowhead Community Services District, Southdown, San Joaquin River Exchange Contractors Water Inc., and Jean D. DeBlasis as Trustee of the Kemper Authority as Amicus Curiae. Campbell Ranch Trust.

Gresham, Savage, Nolan & Tilden and Michael Duane Davis for Defendants, Cross-complainants and Respondents and for Cross-complainants and Respondents Baldy Mesa Water District, Silver Lakes Association and Mitsubishi Cement Corporation.

Chase Nielson Page 10 of 23 23 Cal. 4th 1224, *1224; 5 P.3d 853, **853; 99 Cal. Rptr. 2d 294, ***294

Judges: Opinion by Chin, J., with George, C. J., Mosk, and Barstow. 3 The Mojave River Basin is divided into Kennard, Baxter, and Brown, JJ., and Johnson, J., * five hydrologic subareas: The Helendale Fault separates the Alto and Centro [*1234] Basin subareas; Opinion by: CHIN the Waterman Fault separates the Centro and Baja Basin subareas; the Oeste Basin subarea is west of the Opinion Alto Basin subarea; and the Este Basin subarea is east of the Alto Basin subarea and south of the Centro Basin subarea. Because these basins are interconnected, [*1233] [**858] [***299] CHIN, J. some of the surface inflow to one basin is outflow from another. The groundwater and surface water within the I. INTRODUCTION entire Mojave River Basin constitute a single interrelated source. We granted review to determine whether a trial court may definitively resolve water right priorities in an The Mojave River, cyclically replenished from rainfall in overdrafted basin with a "physical solution" that relies the San Bernardino Mountains, is the main water source on the equitable apportionment doctrine but does not for the Mojave River Basin. The river's flow in the consider the affected owners' legal water rights in the downstream area, however, has decreased in recent basin. 1 We conclude it may not, and affirm the Court of years. Groundwater extractions in the Alto Basin have Appeal judgment in that respect. In the second part of lowered the water table, increasing the Alto Basin's this opinion, we address whether the Court of Appeal storm flow absorption. As more water is [***300] erred in concluding that the trial court abused its absorbed in the Alto Basin, less water reaches the discretion when it determined that a water producer downstream area. who desired to stipulate to the physical solution was fairly apportioned its share of water. We conclude the Before the 1950's, the Mojave River Basin economy Court of Appeal erred on this point. We therefore affirm primarily relied on transportation, mining, military, and in part and reverse in part the Court of Appeal judgment. agriculture. The economy and investment in the area 2 soon grew and, by the mid-1950's, demand for water in the basin exceeded the natural supply, resulting in an II. BACKGROUND overdraft condition. Development continued, particularly during the 1970's and 1980's. By 1990, the basin's The Mojave River originates in the San Bernardino population was approximately 235,000, more than 10 Mountains, where rain and snow runoff give rise to the times the population in 1950. The largest increase in West Fork of the Mojave River and Deep Creek. These overdraft in the basin occurred between 1970 and 1980. tributaries join at the mountain foothills in an area called During that time, well levels and water quality The Forks to form the Mojave River. From The Forks, experienced a steady and significant decline. If overdraft the Mojave River flows approximately 90 miles north to conditions [**859] continue, the basin's water supply Victorville and Helendale, northeast to Barstow, east to will experience significant depletion. Afton, and finally to its terminus in Soda Lake. III. FACTS AND PROCEDURE The Mojave River Basin area extends approximately 3,600 square miles and encompasses several cities, In 1990, the City of Barstow and the Southern California including Victorville, Hesperia, Apple Valley, Adelanto, Water Company (plaintiffs) filed this action against the

* Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.

1 The trial court used the phrase "physical solution" to refer to its equitable distribution of water use in relation to the many parties who stipulated to it.

2 Our decision in no way limits the administrative authority of the State Water Resources Control Board, nor does it affect the state board's authority over surface waters.

3 A basin is defined as "[t]he tract of country drained by a river and its tributaries." (1 Oxford English Dict. (2d ed. 1989) p. 985, col. 1.)

Chase Nielson Page 11 of 23 23 Cal. 4th 1224, *1234; 5 P.3d 853, **859; 99 Cal. Rptr. 2d 294, ***300

City of Adelanto, the Mojave Water Agency (MWA), 4 The physical solution also sets a "base annual and other upstream water producers, claiming that their production" amount for each party, determined by the groundwater production was adversely impacting producer's maximum annual production for the five-year plaintiffs' water supply, and that they contributed to the period from 1986 to 1990. The solution defines a entire Mojave River Basin overdraft. 5 Plaintiffs sought producer's base annual production right as [***301] "the an average annual flow of 30,000 acre-feet of water to relative right of each producer to the free production the Barstow area and a writ of mandate to compel the allowance within a given subarea, as a percentage of MWAto import supplemental water from the State Water the aggregate of all producers' base annual production Project. in the subarea." The higher the base annual production right, the more water a producer can sell under transfer [*1235] In 1991, the MWA served over 1,000 persons provisions and produce free of a replacement with an amended cross-complaint that joined assessment. substantially all water producers within the Mojave River Significantly, the physical solution did not apportion Basin, except for certain small producers. The production rights on the basis of preexisting legal water cross-complaint requested a declaration that the rights. The drafters of the physical solution believed available native water supply was inadequate to meet such apportionment would lead to inequitable water producer demands within the Mojave River Basin and allocation. In fact, the trial court expressly held that the asked the court to apportion water rights among the parties were "estopped and barred from asserting various water producers. special priorities or preferences." The court further concluded that allocating water based on asserted legal The trial court stayed the litigation while a committee, priorities would be "extremely difficult, if not impossible." composed of attorneys and engineers representing numerous water producers throughout the Mojave River The trial court ordered all parties either to stipulate to Basin, met to negotiate settlement terms and to develop the physical solution, file an answer to the a physical solution to the water shortage problem. After cross-complaint, or suffer default. Over 200 [*1236] negotiating for two years, the committee submitted a parties stipulated to the physical solution. Minimal draft physical solution to the trial court. producers within the Mojave River Basin--those that produced 10 [**860] acre-feet of water or less The physical solution's stated purposes are (1) to ensure annually--were exempt from the physical solution's that downstream producers are not adversely affected terms, and instead were subject to administration under by upstream use, (2) to raise money to purchase the MWA. The trial court entered an interlocutory supplemental water for the area, and (3) to encourage judgment imposing the physical solution on the local water conservation. stipulating parties. It then held a trial to adjudicate the individual rights of the nonstipulating parties, including Regionally, the physical solution requires each subarea the City of Adelanto, the Cardozo appellants, who were within the basin to provide a specific quantity of water to generally described as alfalfa and dairy farmers with the adjoining downstream subarea. The solution places legal water rights, and appellants Jess Ranch Water no limits on the amount of water a party can withdraw. Company (Jess Ranch), property owners that raised Instead, each party is allotted a certain quantity of trout and engaged in some agricultural pursuits. In water--a "free production allowance" based on its prior contrast to the Cardozo appellants, Jess Ranch wanted use--which it can use at no cost. When a party uses to participate in the physical solution and interlocutory water in excess of its free production allowance, it is judgment. Jess Ranch challenged only the judgment's charged a fee to purchase "replacement" water for that allocation of acre-feet of water to it, not the physical subarea. solution's legality.

4 The MWA has statutory authority to maintain a sufficient water supply. "The agency may do any and every act necessary to be done so that sufficient water may be available for any present or future beneficial use or uses of the lands or inhabitants of the agency, including, without limiting the generality of the foregoing, irrigation, domestic, fire protection, municipal, commercial, industrial, and recreational uses." (Stats. 1959, ch. 2146, § 15, p. 5134; 72A West's Ann. Wat.--Appen. (1999 ed.) § 97-15, subd. (a), p. 208.)

5 The term "water producers" is interchangeable with the term "water users," and refers to entities that use water for any purpose, including, but not limited to, agricultural, aquacultural, domestic, recreational, industrial, and commercial uses.

Chase Nielson Page 12 of 23 23 Cal. 4th 1224, *1236; 5 P.3d 853, **860; 99 Cal. Rptr. 2d 294, ***301

The trial court identified the following issues for In its statement of decision, the trial court recited the determination during the nonstipulating parties' trial: (1) case's procedural history and the [**861] facts in detail. characterization of water rights; (2) priority, if any; (3) The court concluded that the constitutional mandate of uses of the water; (4) whether those uses were reasonable and beneficial use dictates an equitable reasonable; and (5) the amount of reasonable and apportionment of all water rights when a river basin is in beneficial use. Other trial issues included identification overdraft. The court found it unnecessary to adjudicate of the subareas, whether the physical solution created individual legal water rights and instead concluded that an equitable apportionment of water, and whether it the proposed physical solution, incorporating a free satisfied the requirements of article X, section 2 of the production allowance without regard to overlying and California Constitution, which mandates that water be riparian water rights holders, would be fair and equitable put to reasonable and beneficial use. 6 to nonstipulating farmers and would best satisfy the use policy set forth in Water Code section 106 (domestic Trial was lengthy, with numerous witnesses testifying. use has the highest priority, followed by irrigation). The stipulating parties presented evidence of the Mojave River Basin's hydrogeology and established that the Several factors influenced the trial court's decision to overdraft existed. The stipulating parties [***302] also enforce the physical solution. For example, the court presented [*1237] evidence regarding the Mojave noted the overdraft had existed for several years, the River Basin's economic development during the parties disputed the asserted water rights priorities, and overdraft period. a mechanical allocation of legal water rights could lead to an inequitable apportionment and impose undue The Cardozo appellants demonstrated they owned land hardship on many parties. For these reasons and more, in the basin and that they had been pumping water from the trial court enjoined all parties from asserting special wells on that land. Although the Cardozo appellants priorities or preferences. initially claimed that they held riparian water rights, they did not produce evidence in their properties' chain of The trial court concluded that in the face of severe title to support that claim. (1) (1) (See fn. 7.) Therefore, overdraft of an interrelated water source, all use was they relied on their overlying rights based on the unreasonable, whether or not a user held riparian or groundwater underneath their property. 7 overlying rights. The court reasoned that several factors

6 Article X, section 2 of the California Constitution was originally adopted in 1928 as former article XIV, section 3. As adopted in 1976, it states, "It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to [sic], but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained." (Cal. Const., art. X, § 2.) 7 HN1 Riparian rights are special rights to make use of water in a waterway adjoining the owner's property. Overlying rights are special rights to use groundwater under the owner's property. ( California Water Service Co. v. Edward Sidebotham & Son (1964) 224 Cal. App. 2d 715, 725 [37 Cal. Rptr. 1] (California Water Service Co.).) HN2 Both riparian and overlying water rights are usufructuary only, and while conferring the legal right to use the water that is superior to all other users, confer no right of private ownership in public waters. (See People v. Shirokow (1980) 26 Cal. 3d 301, 307 [162 Cal. Rptr. 30, 605 P.2d 859] (Shirokow).) The state's interest in the public groundwater and surface waters is to make water policy that preserves and regulates it. HN3 The state does not have the right to possess and use the water to the exclusion of others and has only such riparian, overlying, or appropriative rights as it may obtain by law; its interest is therefore not an ownership interest, but rather a nonproprietary, regulatory one. (See State of California v. Superior Court (2000) 78 Cal. App. 4th 1019, 1027 [93 Cal. Rptr. 2d 276]; Shirokow, supra, 26 Cal. 3d at p. 309.)

Chase Nielson Page 13 of 23 23 Cal. 4th 1224, *1238; 5 P.3d 853, **861; 99 Cal. Rptr. 2d 294, ***302

[*1238] justified the water right allotment on a nonpriority the physical solution as to the stipulating parties, despite basis, including the climate, the impact of overdraft on the trial court's error. As the Court of Appeal correctly interrelated surface and groundwater basins, and the observed, "We see no reason why the parties cannot importance of protecting the economy. The court stipulate to a judgment incorporating the physical concluded that the doctrine of reasonable and beneficial solution, nor do we see any reason why a stipulated use, as established by article X, section 2 of the Cali- [solution] [*1239] entered into by a large number of fornia Constitution, required an equitable apportionment water producers in the Mojave Basin should be totally of all rights when a basin is in overdraft. The City of reversed when the rights of the Cardozo Appellants can Adelanto stipulated to the judgment following trial. be fully protected by appropriate trial court orders on remand. [Citations.] . . . [P] Thus, we protect the rights of 8 The Cardozo appellants appealed the trial court the Cardozo Appellants while also respecting the rights judgment. They argued that the physical solution was of the stipulating parties [**862] to agree to a [solution invalid because it failed to recognize their preexisting that] waives or alters their water rights in a manner and paramount legal water rights under California water which they believe to be in their best interest." (Fn. law and therefore amounted to a taking without due omitted.) process. Specifically, they attacked the physical solution [***303] on grounds that: "(1) it fails to recognize and The Jess Ranch matter presents different issues. At protect their water rights; (2) it imposes a burdensome trial, Jess Ranch introduced evidence to show it pumped expense on them, with the intention to reduce or over 18,000 acre-feet of water per year from 1986-1990 eliminate agricultural uses; (3) it encourages waste of to support its trout-raising operation and ancillary water; (4) it encourages unlawful transfer of water; (5) it agricultural properties. The stipulating parties contested fails to bind all producers in the basin; (6) it has other the amount of water Jess Ranch put to beneficial use. harmful and inequitable effects." The trial court found that Jess Ranch failed to establish that its substantial use of water was reasonable and The City of Barstow, the MWA, and other parties to the beneficial. The court therefore calculated Jess Ranch's stipulation responded that the Cardozo appellants had base annual production at a lesser quantity. The court failed to prove they had any water rights that the concluded that for purposes of Jess Ranch's joining the judgment adversely affected. They further argued that stipulated physical solution, it would calculate the any water rights the Cardozo appellants did possess amount used annually at 7,480 acre-feet, an amount were limited by the principle of reasonable and beneficial Jess Ranch challenged. use under article X, section 2 of the California Constitution, which, they argued, required the court to On appeal, Jess Ranch argued that its water allocation apportion water equitably among users in the should be increased, because its annual production overdrafted area. They also asserted that the trial court rights were not calculated on the same basis as those of had properly considered the relevant factors before other producers. The Court of Appeal agreed and imposing a physical solution. reversed the judgment as it applied to Jess Ranch. The court found that Jess Ranch was not given a base The Court of Appeal disagreed with these arguments annual production amount based on its actual and reversed the trial court judgment against the production. The court further stated that the doctrine of Cardozo appellants, directing the trial court to enter its reasonable and beneficial use did not justify treating order excluding them from its judgment and granting Jess Ranch differently from other producers. them injunctive relief to protect their water rights. The court concluded that the trial court erred in failing to We granted petitions for review filed by the City of consider the farmers' potential riparian or overlying Barstow, the Southern California Water Company, the water rights when adjudicating water allocation in the MWA, and other participants in the physical solution overdrafted basin. The court held that it was not required and judgment (collectively respondents). 9 The [***304] to reverse the entire judgment or in any way to disturb principal question we address is whether the trial court

8 Manuel and Maria Cardozo, Niel DeVries, Virgil Gorman, Richard and Geneva Leyerly, Jerry Osterkamp, David and Elizabeth Daily, Richard and Elaine Fitzwater, Cornelis J. Groen, Robert T. and Barbara T. Older, and Steve Older.

9 Other defendants and/or cross-defendants to this action are the City of Hesperia and Hesperia Water District, Apple Valley Ranchos Water Company, Victor Valley Water District, Rancho Las Flores Limited Partnership, Baldy Mesa Water District, City

Chase Nielson Page 14 of 23 23 Cal. 4th 1224, *1239; 5 P.3d 853, **862; 99 Cal. Rptr. 2d 294, ***304 could disregard legal water rights in order [*1240] to with article X, section 2 of the California Constitution.( apportion on an equitable basis water rights to all Jordan v. City of Santa Barbara (1996) 46 Cal. App. 4th producers in an overdrafted groundwater basin. We 1245, 1268 [54 Cal. Rptr. 2d 340].) also address respondents' contention that the Court of Appeal erred in concluding the trial court treated Jess [*1241] (3) (3) In contrast to owners' legal priorities, we Ranch inequitably in its water allocation under the observe that HN7 "[t]he right of an appropriator . . . proposed solution and judgment. depends upon the actual taking of water. Where the taking is wrongful, it may ripen into a prescriptive right. IV. DISCUSSION Any person having a legal right to [***305] surface or ground water may take only such amount as he A. Principles and Policies of California Water Law reasonably needs for beneficial purposes . . . . Any water not needed for the reasonable beneficial use of 1. Water Rights those having prior rights is excess or surplus water and (2) (2) HN4 Courts typically classify water rights in an may rightly be appropriated on privately owned land for underground basin as overlying, [**863] appropriative, non-overlying use, such as devotion to public use or or prescriptive. ( California Water Service Co., supra, exportation beyond the basin or watershed [citation]. 224 Cal. App. 2d at p. 725.) 10 HN5 An overlying right, HN8 When there is a surplus, the holder of prior rights "analogous to that of the riparian owner in a surface may not enjoin its appropriation [citation]. HN9 Proper stream, is the owner's right to take water from the overlying use, however, is paramount and the rights of ground underneath for use on his land within the basin an appropriator, being limited to the amount of the or watershed; it is based on the ownership of the land surplus [citation], must yield to that of the overlying and is appurtenant thereto." ( California Water Service owner in the event of a shortage, unless the appropriator Co., supra, 224 Cal. App. 2d at p. 725.) HN6 One with has gained prescriptive rights through the [adverse, overlying rights has rights superior to that of other open and hostile] taking of nonsurplus waters. As persons who lack legal priority, but is nonetheless between overlying owners, the rights, like those of restricted to a reasonable beneficial use. Thus, after riparians, are correlative; [i.e.,] each may use only his first considering this priority, courts may limit it to present reasonable share when water is insufficient to meet the and prospective reasonable beneficial uses, consonant needs of all [citation]. HN10 As between appropriators, of Victorville, Lake Arrowhead Community Services District, Jean C. DeBlasis as trustee of the Kemper Campbell Ranch Trust, Southdown, Inc., Mitsubishi Cement Corporation, Silver Lakes Association, Alfredo Arguelles, Richard F. Barak, Charles Bell, Lillian Borgogno, John Thomas Carter, Marshall Chuang, George Ronald Dahlquist, Alan DeJong, Frank T. Duran, Trinidad L. Gaeta, Wayne D. Gesiriech, S. Harold Gold, Ciril Gomez Living Trust, Daniel C. Gray, Karen Gray, Nick Grill, Merlin Gulbranson Excavating, Scott Hert, Melvin Hill, John Hosking, Jean Hosking, Larry Johnson, Hoon Ho Kim, H. Leslie Levin, J. Peter Lounsbury, Ken Luth, The 160 Newberry Ranch Limited Partnership, Meadowbrook Dairy, Newberry Ranch, George Parker, Ruth Parker, Trinidad Perez, Daniel Pettigrew, Howard Pettigrew, John S. Pettis, Joan C. Randolph, Bill Resseque, Charles Short, Robert A. Smith, Wayne A. Soppeland, Stanley Stewart, Patricia Stewart, Edward W. Stringer, Thomas Taylor, Carole Taylor, Dale Thomas, Ronald Thomas, James A. Thompson, Cornelius Van Diest, Van Leuwen Family Trust, Albert H. Vogler, Ykema Trust, Ykema Harmsen Dairy, Keith Young, and Margie Young.

A number of amicus curiae briefs have been filed with this court. The California Water Association filed in support of the City of Barstow; the Santa Clara Valley Water District filed in support of the MWA; Gary A. Ledford filed in support of Jess Ranch and the Cardozo appellants; the Pacific Legal Foundation, the Northern California Water Association, the Cities of Fairfield, Vacaville, and Vallejo, the City and County of San Francisco, the San Joaquin Tributaries Association, the San Joaquin River Exchange Contractors Water Authority, and the Westlands Water District filed in support of the Cardozo appellants. Additionally, the Main San Gabriel Basin Watermaster and the Raymond Basin Management Board filed an amicus curiae brief asking this court to reverse the Court of Appeal decision, and the California Farm Bureau Federation et al. (the Western Growers Association, the Agricultural Council of California, the California Cattlemen's Association, the Nisei Farmers League, the California Association of Winegrape Growers, the Grower-Shipper Vegetable Association, and the Rice Producers of California) and the Imperial Irrigation District filed in favor of affirming the Court of Appeal decision. Wayne K. Lemieux also filed an amicus curiae brief.

10 For an extensive discussion of California's water law, from its adoption of the English common law riparian rights doctrine to the reasonable use limitation, see Attwater and Markle, Overview of California Water Rights and Water Quality Law (1988) 19 Pacific L.J. 957, and Shaw, The Development of the Law of Waters in the West (1922) 10 Cal. L.Rev. 443.

Chase Nielson Page 15 of 23 23 Cal. 4th 1224, *1241; 5 P.3d 853, **863; 99 Cal. Rptr. 2d 294, ***305 however, the one first in time is the first in right, and a the water field subject to appropriation." ( Tulare Dist. v. prior appropriator is entitled to all the water he needs, Lindsay-Strathmore Dist. (1935) 3 Cal. 2d 489, 524-525 up to the amount he has taken in the past, before a [45 P.2d 972] (Tulare).) HN14 We have reiterated these subsequent appropriator may take any [citation]. principles in subsequent cases, observing that although "what is a reasonable use of water depends on the (4) (4) HN11 "Prescriptive rights are not acquired by the circumstances of each case, such an inquiry cannot be taking of surplus or excess water. [But] [a]n appropriative resolved in vacuo isolated from statewide taking of water which is not surplus is wrongful and may considerations of transcendent importance. Paramount ripen into a prescriptive right where the use is actual, among these we see the ever increasing need for the open and notorious, hostile and adverse to the original conservation of water in this state, an inescapable owner, continuous and uninterrupted for the statutory reality [***306] of life quite apart from its express period of five years, and under claim of right." ( Califor- recognition in the 1928 amendment." ( Joslin v. Marin nia Water Service Co., supra, 224 Cal. App. 2d at pp. Mun. Water Dist. (1967) 67 Cal. 2d 132, 140 [60 Cal. 725-726.) Rptr. 377, 429 P.2d 889], fn. omitted.)

Even these acquired rights, however, may be interrupted HN15 The constitutional amendment therefore dictates without resort to the legal process if the owners engage the basic principles defining water rights: that no one in self-help and retain their rights by continuing to pump can have a protectable interest in the unreasonable use nonsurplus waters. (See Hi-Desert County Water Dist. of water, and that holders of water rights must use water v. Blue Skies Country Club, Inc. (1994) 23 Cal. App. 4th reasonably and beneficially. Crucial to our own 1723, 1731 [28 Cal. Rptr. 2d 909] (Hi-Desert County determination here is the fact that the amendment Water Dist.).) In the present action it is important to note carefully preserves riparian and overlying rights, while that no parties have claimed prescriptive rights, and the abolishing "that aspect of the common law doctrine parties that stipulated to the physical solution did not which entitled a riparian, as against an upstream seek findings under the prescriptive rights doctrine. appropriator, to enforce his right to the entire natural flow of a stream even if his use of the water was 2. 1928 Constitutional Amendment wasteful or unreasonable." ( Pleasant Valley Canal Co. v. Borror (1998) 61 Cal. App. 4th 742, 754 [72 Cal. Rptr. (5) (5) Article X, section 2 was added to the California 2d 1] (Pleasant Valley); see also Gin S. Chow v. City of Constitution in 1928 as former article XIV, section 3. Santa Barbara (1933) 217 Cal. 673, 699-700 [22 P.2d HN12 The provision limits water rights to reasonable 5].) and beneficial uses. (Cal. Const., art. X, § 2.) "[T]he rule of reasonable use as enjoined by . . . the Constitution B. Equitable Apportionment applies to all water rights enjoyed or asserted in this state, whether the same be grounded on the [*1242] 1. Past Cases riparian right or the right, analogous to the riparian right, In previous cases resolving regional water uses, courts of the overlying land owner, or the percolating water allocated water according to preexisting legal rights and right, or the appropriative right." ( Peabody v. City of relationships. For example, in Fleming v. Bennett Vallejo (1935) 2 Cal. 2d 351, 383 [40 P.2d 486] (1941) 18 Cal. 2d 518, 520 [116 P.2d 442], over 200 (Peabody).) HN13 "Under this new doctrine, it is clear parties asserted rights to the Susan River's waters. The that when a [**864] riparian or overlying owner brings trial court referred [*1243] the matter to the State Water an action against an appropriator, it is no longer sufficient Commission, which prepared a comprehensive report to find that the plaintiffs in such action are riparian or with individual findings regarding 259 claimed rights of overlying owners, and, on the basis of such finding, users affecting the watershed. ( Id. at pp. 525, 527.) We issue the injunction. It is now necessary for the trial affirmed the trial court's decree, based on the report and court to determine whether such owners, considering additional evidence introduced at an open court hearing. all the needs of those in the particular water field, are ( Id. at pp. 526-527, 530.) putting the waters to any reasonable beneficial uses, giving consideration to all factors involved, including As noted ante, at page 1242, in Tulare, we outlined a reasonable methods of use and reasonable methods of water allocation method in a case in which the plaintiffs' diversion. From a consideration of such uses, the trial water rights had different priorities. We also observed court must then determine whether there is a surplus in that "HN16 [t]he trial court . . . must fix the quantity

Chase Nielson Page 16 of 23 23 Cal. 4th 1224, *1243; 5 P.3d 853, **864; 99 Cal. Rptr. 2d 294, ***306 required by each [right holder] for his actual reasonable enjoin the alleged overdraft to prevent the water supply's beneficial uses, the same as it would do in the case of depletion. ( City of Pasadena, supra, 33 Cal. 2d at p. an appropriator." ( Tulare, supra, 3 Cal. 2d at p. 525.) 916.) The trial court referred the action to the Division of This court determined that "[w]hat is a beneficial use at Water Resources of the Department of Public Works, one time may, because of changed conditions, become which produced a report on area-wide water rights. a waste of water at a later time." ( Id. at p. 567.) Because (Ibid.) All parties except the defendant water company, the court cannot fix or absolutely ascertain the quantity a public utility, stipulated to a judgment that allocated of water required for future use at any given time, a trial water and restricted total production to achieve safe court should declare prospective uses paramount to the yield in the basin. Because the stipulation was not appropriator's rights, so the appropriator cannot gain binding on the utility, the issue in this court was how to prescriptive rights in the use. Until the paramount right determine its rights in relation to the stipulating holder needs it, the appropriator may continue to take producers in the same manner as if there had been no water. (Ibid.) agreement. ( Id. at pp. 916, 924.)

(6a) (6a) HN17 Thus, water right priority has long been Without mentioning equitable apportionment, Chief the central principle in California water law. The corollary Justice Gibson's majority opinion affirmed the trial of this rule is that an equitable physical solution must court's judgment, enforcing the stipulation's terms preserve water right priorities to the extent those against all parties, including the utility. ( City of Pasa- priorities do not lead to unreasonable use. In the case of dena, supra, 33 Cal. 2d at pp. 916, 933.) This court an overdraft, riparian and overlying use is paramount, discussed the nature of prescriptive groundwater rights and the rights of the appropriator must yield to the rights in which rights of adverse users do not completely of the riparian or overlying owner. ( Burr v. Maclay overtake owners' rights. It concluded that the pumpers Rancho Water Co. (1908) 154 Cal. 428, 435 [**865] [98 had established prescriptive rights in part of the water P. 260]; Katz v. Walkinshaw (1903) 141 Cal. 116, 135 supply. The court observed "that such rights were [74 P. 766].) acquired against both overlying owners and prior appropriators, [and] that the overlying owners and prior 2. Equitable Apportionment in Cases Involving appropriators also obtained, or preserved, rights by Correlative Rights or Rights Established by Mutual reason of the water which they pumped . . . ." ( Id. at p. Prescription 933.) Applying the mutual prescription doctrine, this court concluded that all claimants had equal priority and Respondents rely on two cases to support their agreed the trial court had appropriately reduced each contention that article X, section 2 of the California party's production to achieve safe yield. (Ibid.) Constitution requires the courts to apportion all water rights equitably, regardless of preexisting priorities: City (7) (7) In reaching its conclusion, City of Pasadena of Pasadena v. City of Alhambra (1949) 33 Cal. 2d 908 observed: "Although the law at one time was otherwise, [207 P.2d 17] (City of Pasadena), and City of Los it is now clear that an overlying owner or any other Angeles v. City of San Fernando (1975) 14 Cal. 3d 199 person having a legal right to surface or ground water [123 Cal. Rptr. 1, 537 P.2d 1250] (City of [***307] San may take only such amount as he reasonably needs for Fernando). We conclude these cases support the beneficial purposes. [Citations.] Public interest requires Cardozo appellants' position. that there be the greatest number of beneficial uses which the supply can yield, and water may be In City of Pasadena, extractors had been taking appropriated for beneficial uses subject to the rights of nonsurplus groundwater for over 30 years, creating an those who have a lawful priority. [Citation.] Any water overdraft condition in the basin on which Pasadena not needed for the reasonable beneficial uses of those relied as a water source. ( City of Pasadena, supra, 33 having prior rights is excess or surplus water. In Cal. 2d at pp. [*1244] 921-922.) Even after the overdraft California surplus water may rightfully be appropriated occurred, all parties continued to pump the groundwater, on privately owned land for nonoverlying uses, such as creating a greater overdraft and interfering with devotion to a public use or exportation beyond the basin everyone's ability to pump in the future. ( Id. at p. 922.) or watershed. [Citations.]

The plaintiff city and its chief water producer sued to "It is the policy of the state to foster the beneficial use of determine the groundwater rights in the area and to water and discourage waste, and when there is a

Chase Nielson Page 17 of 23 23 Cal. 4th 1224, *1244; 5 P.3d 853, **865; 99 Cal. Rptr. 2d 294, ***307 surplus, whether of surface or ground [*1245] water, the ground basins which are subjected to extractions in holder of prior rights may not enjoin its appropriation. excess of the replenishment supply." ( City of San [Citations.] Proper overlying use, however, is Fernando, supra, 14 Cal. 3d at p. 265.) In so doing, this paramount, and the right of an appropriator, being limited court stated: "[T]he allocation of water in accordance to the amount of the surplus, must yield to that of the with prescriptive rights mechanically based on the overlying owner in the event of a shortage, unless the amounts beneficially used by each party for a appropriator has gained prescriptive rights through the continuous five-year period after commencement of the taking of nonsurplus waters." (City of [**866] Pasa- prescriptive period and before the filing of the complaint, dena, supra, 33 Cal. 2d at pp. 925-926.) does not necessarily result in the most equitable apportionment of water according to need. A true Several decades later, Los Angeles sued to establish a equitable apportionment would take into account many prior right to groundwater in the upper Los Angeles more factors." (Ibid.) In a footnote accompanying this River area in City of San Fernando, supra, 14 Cal. 3d at sentence, this court observed: "The principles by which page 207. (8) (8) (See fn. 11.) The plaintiff city relied on [*1246] the United States Supreme Court equitably its historic pueblo [***308] water rights, 11 while the apportions water among states are illustrated in Ne- defendants argued that City of Pasadena supported braska v. Wyoming (1945) 325 U.S. 589, 618 [89 L. Ed. 12 their mutual prescriptive rights claim to a proportionate 1815, 1831-1832, 65 S. Ct. 1332]. [12]After observing share of the groundwater supply. ( City of San Fer- that apportionment between states whose laws base nando, supra, 14 Cal. 3d at pp. 210-211, 214.) This water rights on priority of appropriation should primarily court upheld the plaintiff's pueblo rights and overturned accord with that principle, the court said: 'But if an the trial court's award of prescriptive rights against the allocation between appropriation States is to be just plaintiff. This court held that Civil Code section 1007 and equitable, strict adherence to the priority rule may precluded the defendants from obtaining prescriptive not be possible. For example, the economy of a region water rights against the plaintiff. ( City of San Fernando, may have been established on the basis of junior supra, 14 Cal. 3d at pp. 274-277.) appropriations. So far as possible those established uses should be protected[,] though strict application of This court reasoned: "The pueblo right gives the city the priority rule might jeopardize them. Apportionment holding it a paramount claim to particular waters only to calls for the exercise of an informed judgment on a the extent that they are required for satisfying its consideration of many factors. Priority of appropriation municipal needs and those of its inhabitants. 'It thus is the guiding principle. But physical and climatic insures a water supply for an expanding city [citation] conditions, the consumptive use of [***309] water in the with a minimum of waste by leaving the water accessible several sections of the river, the character and rate of to others until such time as the city needs it.' [Citation.]" return flows, the extent of established uses, the ( City of San Fernando, supra, 14 Cal. 3d at p. 252, availability of storage [**867] water, the practical effect italics added by City of San Fernando.) of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to (9) (9) This court rejected the defendants' contention downstream areas if a limitation is imposed on the that the mutual prescription doctrine developed in City former--these are all relevant factors. They are merely of Pasadena was a "beneficent instrument for illustrative, not an exhaustive catalogue. They indicate conservation and equitable apportionment of water in the nature of the problem of apportionment and the

11 Pueblo water rights, along with riparian (including overlying) and appropriative rights, were the original species of water rights recognized in early California law. ( Pleasant Valley, supra, 61 Cal. App. 4th at p. 751.) Pueblo water rights apply to the municipal successors of the Spanish and Mexican pueblos. They are not implicated in the present matter. 12 Although it allocated priorities between states, the Supreme Court did not adjudicate the relative rights of appropriators qua appropriators: "The standard of an equitable apportionment requires an adaptation of the formula to the necessities of the particular situation. We may assume that the rights of the appropriators inter se may not be adjudicated in their absence. But any allocation between Wyoming and Nebraska, if it is to be fair and just, must reflect the priorities of appropriators in the two states." ( Nebraska v. Wyoming, supra, 325 U.S. 589, 627 [65 S. Ct. 1332, 1355].) As amici curiae Cities of Fairfield, Vacaville, and Vallejo observe, no California court has ever applied the doctrine of equitable apportionment to resolve an intrastate water conflict. The Supreme Court developed the doctrine to fill the void of authority governing relative priority between states to preserve interstate comity.

Chase Nielson Page 18 of 23 23 Cal. 4th 1224, *1246; 5 P.3d 853, **867; 99 Cal. Rptr. 2d 294, ***309 delicate adjustment of interests which must be made.' " show "overlying rights to native ground water for ( City of San Fernando, supra, 14 Cal. 3d at pp. 265- reasonable beneficial uses on their overlying land, 266, fn. 61.) subject to any prescriptive rights of another party." ( Id. at p. 293.) (10a) (10a) This court reiterated: "Overlying (6b) (6b) Respondents claim this footnote provides the rights take priority over appropriative rights in that if the basis for the trial court's use of equitable apportionment amounts of water devoted to overlying uses were to to allocate water in an overdraft basin without regard to consume all the basin's native supply, the overlying the owners' water priorities. (See Hi-Desert County rights would supersede any appropriative claims by any Water Dist., supra, 23 Cal. App. 4th at p. 1734, fn. 11; party to the basin's native ground water [citation] except Wright v. Goleta Water Dist. (1985) 174 Cal. App. 3d 74, insofar as the appropriative claims ripened into 93 [219 Cal. Rptr. 740] (Wright).) Respondents further prescriptive rights [citation]. Such prescriptive rights assert that by ignoring equitable considerations, the would not necessarily impair the private defendants' Court of Appeal's opinion conflicts with City of San rights to ground water for new overlying uses for which Fernando, and that it leads to an unjust result by which the need had not yet come into existence during the the Cardozo appellants are free to produce any amount prescriptive [***310] period. [Citation.]" ( Id. at p. 293, of water on a priority basis, while all others pay to import fn. 100.) Accordingly, overlying defendants "should be water to protect the resource. awarded the full amount of their overlying rights, less any amounts of such rights lost by prescription, from the We find no conflict. City of San Fernando distinguished part of the supply shown to constitute native ground City of Pasadena, supra, 33 Cal. 2d 908, where a water." ( Id. at p. 294.) "restriction to safe yield on a strict priority [*1247] basis might have deprived parties who had been using (6c) (6c) Thus, one could read footnote 61 in City of San substantial quantities of ground water for many years of Fernando to suggest that if prioritization of rights results all further access to such water." ( City of San Fer- in denying recent appropriative users the right to nando, supra, 14 Cal. 3d at p. 266.) By contrast, City of produce water, some type of equitable appropriation San Fernando correctly found that the same condition may be implemented in intrastate water matters. [**868] was not present in the Los Angeles River basin, and But the case is not precedent for wholly disregarding "the effect of the trial court's judgment in the present the priorities of existing water rights in favor of equitable case was to eliminate [the] plaintiff's priorities based not [*1248] apportionment in this state, where water on the timing of its appropriations but on its importation allocation has been based on an initial consideration of of . . . water and on its pueblo right." ( Id. at p. 267.) In owners' legal water rights. HN18 Case law simply does other words, in City of San Fernando, applying the not support applying an equitable apportionment to mutual prescription doctrine would still have led to water use claims unless all claimants have correlative completely eliminating appropriative rights stemming rights; for example, when parties establish mutual from recent uses in favor of earlier uses, because the prescription. Otherwise, cases like City of San Fernando defendants began pumping while there was still a require that courts making water allocations adequately surplus. ( Id. at pp. 266-267.) In contrast, appropriative consider and reflect the priority of water rights in the rights were protected through the doctrine's application basin. ( City of San Fernando, supra, 14 Cal. 3d at p. in City of Pasadena. 293, fn. 100.) The Court of Appeal's reasoning is consistent with this principle. As the Court of Appeal As the City of San Fernando court itself observed, aptly observed, we have never endorsed a pure "[P]rinciples governing appropriative and prescriptive equitable apportionment that completely disregards water rights will be relevant to the determination on overlying owners' existing legal rights. Thus, to the remand of the conflicting interests of the parties in the extent footnote 61 in City of San Fernando, supra, 14 water of the [overdrafted] Sylmar basin." ( City of San Cal. 3d at pp. 265-266, could be understood to allow a Fernando, supra, 14 Cal. 3d at p. 278.) This court then court to completely disregard California landowners' observed that because the defendants' rights were water priorities, we disapprove it. subordinate to the plaintiff's rights, the plaintiff was "entitled to have the private defendants' extractions 3. Equitable Apportionment After City of San Fernando enjoined insofar as they would constitute an overdraft on the basin supply." ( Id. at p. 291.) This court also Respondents claim that after City of San Fernando, noted that on remand the private defendants could supra, 14 Cal. 3d 199, and relying on the dicta stated in

Chase Nielson Page 19 of 23 23 Cal. 4th 1224, *1248; 5 P.3d 853, **868; 99 Cal. Rptr. 2d 294, ***310 footnote 61 on pages 265-266 of that case, courts not define or otherwise limit an overlying owner's future approved the use of equitable apportionment as the unexercised groundwater rights, in contrast to this basis to allocate water among users in an overdraft court's limitation of unexercised riparian rights. ( In re basin. But the cases on which respondents rely do not Waters of Long Valley Creek Stream System (1979) 25 support the contention. Cal. 3d 339, 358-359 [158 Cal. Rptr. 350, 599 P.2d 656] (Long Valley). 13 (The Wright court [**869] remanded For example, in Hi-Desert County Water Dist., the Court the matter for reconsideration in light of Tulare, supra, 3 of Appeal stated: "Left unresolved in [City of] Pasadena, Cal. 2d at p. 525, which held that former article XIV, however, was whether by continuing to pump, an section 3 [now article X, section 2] of the California overlying user in an overdrafted basin retained its Constitution protected the reasonable beneficial uses original overlying rights or obtained new ones by of the riparian or overlying owner, whose water could be prescription. [Citations.] In 1975, in its most used by an appropriator only when that owner elected comprehensive statement of water law, our Supreme not to use it.) (6d) (6d) Contrary to respondents' Court in [City of San Fernando, supra, 14 Cal. 3d 199] contention, no appellate court has endorsed an finally clarified the proposition that overlying owners equitable apportionment solution that disregards 'retain their rights [to nonsurplus water without judicial overlying owners' existing rights. assistance] by using them.' [Citation.]" ( Hi-Desert County Water Dist., supra, 23 Cal. App. 4th at p. 1731.) C. The Physical Solution (10b) (10b) As against potential appropriators, the court noted that the five-year period for establishing Respondents argue that article X, section 2 of the prescriptive rights to nonsurplus water may be California Constitution mandates that we accept the interrupted by the overlying owners' pumping of their trial court's proposed physical solution. The trial court nonsurplus water. (Ibid.) The court also observed that found as follows: "Having found that all rights are City of San Fernando rejected a mechanical application correlative, a just and fair result is achieved by of the mutual prescription doctrine after noting it often establishing a physical solution which limits each user fails to lead to an equitable water apportionment to a proportionate equitable share of the total amount according to need. ( Hi-Desert County Water Dist., available." The court estopped all parties from asserting supra, 23 Cal. App. 4th at p. 1734.) As Hi-Desert County special priorities or preferences. It concluded it had "the Water Dist. observed, City of San Fernando required authority to draft and impose a physical solution which courts to consider many more factors than the amount requires all users to share equitably in the cost and the parties pumped during the prescriptive period in reduction of use, to safe yield." order to make a truly equitable apportionment. ( Hi- Desert County Water Dist., supra, 23 Cal. App. 4th at p. We agree that, HN19 within limits, a trial court may use 1734, fn. 11.) its equitable powers to implement a physical solution. (See, e.g., Peabody, supra, 2 Cal. 2d at pp. 383-384 In Wright, overlying owners in a groundwater basin [court has power to make reasonable regulations for sued to determine relative water rights in that basin. water use, [*1250] provided they protect the one The Court of Appeal found the trial court [*1249] erred enjoying paramount rights].) In City of Lodi v. East Bay in holding that a water district's appropriative rights had Mun. Utility Dist. (1936) 7 Cal. 2d 316, 341 [60 P.2d a higher priority than the overlying owners' unexercised 439], this court recognized a trial court's power to rights. ( Wright, supra, 174 Cal. App. 3d at pp. 78, enforce an equitable solution even if all parties do not [***311] 82.) The court also held that the trial court could agree to it, but cautioned against unreasonably

13 The Wright court refused to apply Long Valley, supra, 25 Cal. 3d at page 350, to limit the scope of an overlying owner's future unexercised groundwater right to a present appropriative use, because the comprehensive legislative scheme applicable to the adjudication of surface water rights and riparian rights is not applicable to groundwater. ( Wright, supra, 174 Cal. App. 3d at pp. 87-89.) Although we do not address the question here, Wright does suggest that, in theory at least, a trial court could apply the Long Valley riparian right principles to reduce a landowner's future overlying water right use below a current but unreasonable or wasteful usage, as long as the trial court provided the owners with the same notice or due process protections afforded the riparian owners under the Water Code. (See Wat. Code, § 1200 et seq.; Wright, supra, 174 Cal. App. 3d at pp. 87-89.) If Californians expect to harmonize water shortages with a fair allocation of future use, courts should have some discretion to limit the future groundwater use of an overlying owner who has exercised the water right and to reduce to a reasonable level the amount the overlying user takes from an overdrafted basin.

Chase Nielson Page 20 of 23 23 Cal. 4th 1224, *1250; 5 P.3d 853, **869; 99 Cal. Rptr. 2d 294, ***311 burdening any party. The court observed that a physical a physical solution [*1251] should be based on the trial solution is generally a practical remedy that does not court's broad equitable powers. But Vail concerned a affect vested rights. "Under such circumstances the conflict between riparian right holders, not a situation 1928 constitutional amendment, as applied by this court where one party's rights were paramount to the other's. in the cases cited, compels the trial court, before issuing ( Vail, supra, 11 Cal. 2d at p. 508.) a decree entailing such waste of water, to ascertain whether there exists a physical solution of the problem Respondents also rely on Imperial Irrigation Dist. v. presented that will avoid the waste, and that will at the State Wat. Resources Control Bd. (1990) 225 Cal. App. same time not unreasonably and adversely affect the 3d 548, 572 [275 Cal. Rptr. 250]. But in that case the prior appropriator's vested property right. In attempting court had to decide whether an unconstitutional misuse to work out such a solution the policy which is now part of water occurred, and it did not adjudicate rights among of the fundamental law of the state must be adhered to." competing water users, as here. Respondents simply ( Id. at pp. 339-340.) In other words, "a prior appropriator fail to produce compelling authority for their argument . . . cannot be compelled to incur any material expense that courts can avoid prioritizing water rights and instead in order to accommodate the subsequent [***312] allocate water based entirely on equitable principles. appropriator." ( Id. at p. 341.) D. Appellants' Water Rights Other cases hold that a physical solution may not In the trial court, respondents contended that neither violate the constitutional principle that requires water to the Cardozo appellants nor Jess Ranch sustained their be put to beneficial use to the fullest extent possible. ( burden of proving they possessed any water rights. The Hillside Water Co. v. Los Angeles (1938) 10 Cal. 2d 677, trial court agreed as to the Cardozo appellants. The 685-686 [76 P.2d 681].) In Rancho Santa Margarita v. court acknowledged that Jess Ranch testified as to its Vail (1938) 11 Cal. 2d 501, 561 [81 P.2d 533] (Vail), this riparian, overlying, and appropriative rights, and, as the court held that a trial court may not demand that any Court of Appeal observed, the evidence showed one party spend large sums of money in order to satisfy overlying rights, but the trial court found it unnecessary a physical solution. (See Allen v. California Water & Tel. to determine the effect of those rights on its decision. Co. (1946) 29 Cal. 2d 466, 483-484 [176 P.2d 8] The Court of Appeal concluded that Jess Ranch need [rejecting proposed physical solution and finding not rely on those rights in order to participate in the overlying owners entitled to make reasonable use of physical solution and judgment. water without incurring substantial costs].) 1. Cardozo Appellants Thus, although it is clear that HN20 a trial court may impose a physical solution to achieve a practical After concluding that several Cardozo deeds had not allocation of water to competing interests, the solution's reserved riparian rights on behalf of the Cardozo general purpose cannot simply ignore the priority rights appellants, the Court of Appeal nevertheless disputed of the parties asserting them. (See City of San Fer- the trial court's finding that they had no overlying rights. nando, supra, 14 Cal. 3d at p. 290.) HN21 In ordering a Here, the Court of Appeal reasoned, "overlying rights physical solution, therefore, a court may neither change are a property right appurtenant to the land, and are priorities among the water rights holders nor eliminate based on ownership. [Citations.] Although limited to the vested rights in applying the solution without first amount needed for beneficial use, irrigation for considering them in relation to the reasonable use agriculture is clearly such a use, and respondents did doctrine. (See 1 Rogers & Nichols, Water [**870] for not claim otherwise. [Citations.]" California (1967) § 404, p. 549, and cases cited.) [***313] After pointing out that overlying rights are Respondents unpersuasively argue for imposition of an dependent on land ownership over groundwater, and equitable physical solution that disregards prior legal are exercised by extracting and using that water, the water rights. They cite the principle that the State Court of Appeal concluded: "Having shown ownership, Constitution requires the greatest number of beneficial extraction and beneficial use of the underground water users that the water supply can support, but they omit here, the Cardozo Appellants established overlying the requirement that this use be subject to the rights of rights, and the contrary finding of the trial court is those with lawful priority to the water. In addition, without evidentiary or legal support. [P] . . . [P] WE respondents rely on Vail to support their contention that REPEAT THE GUIDING PRINCIPLE: HN22 'Under

Chase Nielson Page 21 of 23 23 Cal. 4th 1224, *1251; 5 P.3d 853, **870; 99 Cal. Rptr. 2d 294, ***313

California law, "[p]roper overlying use . . . is paramount, water rights. The court did recognize, however, that the and the right of an appropriator, being limited to the stipulating parties could agree to be bound by the amount of the surplus, must [*1252] yield to that of the physical solution regardless of any water rights they overlying owner in the event of a shortage unless the may have had. At the same time, the Court of Appeal appropriator has gained prescriptive rights through the concluded: "[A]ny person or entity that produced more taking of nonsurplus waters." [Citation.]' ( Hi-Desert than a minimal amount of water in the 1986-1990 period County Water Dist. v. Blue Skies Country Club, Inc., was allowed to stipulate to the judgment, regardless of supra, 23 Cal. App. 4th 1723, 1730-1731, italics added, whether they had any provable water rights. Essentially, original italics omitted.) HN23 Thus, while the rights of they could waive their existing water rights and agree to all overlying owners in a groundwater basin are be bound by the terms of the stipulated judgment, so correlative and subject to cutbacks when the basin is long as the rights of the nonstipulating parties were overdrafted, overlying rights are superior to respected. [Citation.]" The Court of Appeal directed the appropriative rights. Here, the trial court did not attempt trial court to exclude the Cardozo appellants from the to determine the priority of water rights, and merely judgment [*1253] and to grant them injunctive relief allocated pumping rights based on prior production. protecting their overlying water rights to the current and This approach elevates the rights of appropriators and prospective reasonable and beneficial need for water those producing without any claim of right to the same on their respective properties. status as the rights of riparians and overlying owners. The trial court erred in doing so." The Court of Appeal also reversed the trial court's May 6, 1996, award of costs to the respondents as the Although the Court of Appeal agreed with the Cardozo prevailing parties against the Cardozo appellants. The appellants in doubting the legal propriety of some court reasoned that because the Cardozo appellants aspects of the physical solution, the court did not agree should have been excluded from the [***314] judgment, that it should reverse the entire judgment without regard respondents were no longer prevailing parties. It also to the rights of the stipulating parties. The Court of directed the trial court to order a refund of any Appeal explained, "While [**871] we share the Cardozo assessments the Cardozo appellants paid under the Appellants' doubts as to the legal propriety of various judgment pending appeal. 14 In all other respects, the aspects of the trial court's physical solution, such as court affirmed the trial court judgment as to those allowing transfer of water produced in accordance with appellants. riparian or overlying rights to nonriparian or nonoverlying lands, we do not need to consider those aspects of the Respondents principally disagree with the Court of physical solution. We see no reason why the parties Appeal's conclusion that the trial court erred in ignoring cannot stipulate to a judgment incorporating the physical the Cardozo appellants' legal water rights in its equitable solution, nor do we see any reason why a stipulated physical solution and judgment. They initially contend judgment entered into by a large number of water that the Court of Appeal's resolution of the Cardozo producers in the Mojave Basin should be totally reversed appellants' appeal gives those parties the right to extract when the rights of the Cardozo Appellants can be fully an unlimited amount of water from the basin. We protected by appropriate trial court orders on remand. disagree. HN24 When the water is insufficient, overlying [Citations.] . . . [P] Thus, we protect the rights of the owners are limited to their "proportionate fair share of Cardozo Appellants while also respecting the rights of the total amount available based upon [their] reasonable the stipulating parties to agree to a judgment which need[s]." ( Tehachapi-Cummings County Water Dist. v. waives or alters their water rights in a manner which Armstrong (1975) 49 Cal. App. 3d 992, 1001 [122 Cal. they believe to be in their best interest." Rptr. 918].)

Accordingly, the Court of Appeal reversed the trial court Respondents also argue that overlying pumpers in an judgment against the Cardozo appellants, concluding overdrafted basin should be required to file an action to that the trial court could not ignore their preexisting legal adjudicate groundwater rights at the first indication of

14 The Court of Appeal did not find the trial court abused its discretion in requiring the Cardozo appellants to post an undertaking to guarantee the payment of the water assessments for which the judgment provided. It simply found that because the Cardozo appellants were not subject to the judgment, the trial court should order a refund of any assessments they had paid to date. We leave the resolution of any remaining issues involving the assessment question for the court on remand.

Chase Nielson Page 22 of 23 23 Cal. 4th 1224, *1253; 5 P.3d 853, **871; 99 Cal. Rptr. 2d 294, ***314 substantial growth in the area. (10c) (10c) However, was calculated differently, and it appealed, contending HN25 overlying pumpers are not under an affirmative that it should be allowed to participate in the stipulated duty to adjudicate their groundwater rights, because judgment on the same terms offered to other producers. they retain them by pumping. ( City of San Fernando, Thus, the Jess Ranch appeal presents different issues supra, 14 Cal. 3d at p. 293, fn. 100; Hi-Desert County than does that of the Cardozo appellants. Jess Ranch Water Dist., supra, 23 Cal. App. 4th at pp. 1731-1732.) wishes to participate in the physical solution, but contends it has been prevented from doing so on the (6e) (6e) As overlying owners, the Cardozo appellants same [***315] terms offered the other water producers have the right to pump water from the ground in the Mojave Basin. 15 The Court of Appeal agreed with underneath their respective [**872] lands for use on Jess Ranch, and respondents seek reversal of that their lands. The overlying right is correlative and is judgment. therefore defined in relation to other overlying water right holders in the basin. In the event of water supply Specifically, the trial court examined Jess Ranch's water shortage, overlying users have priority over use and concluded it failed to establish that the use was appropriative users. ( City of Pasadena, supra, 33 Cal. reasonable and beneficial. During the period for which 2d at p. 926.) The Court of Appeal properly recognized water production was reviewed, Jess Ranch had [*1255] that the Cardozo appellants retained their overlying been involved in aquaculture (trout production). rights by [*1254] pumping, and that no claim of Aquaculture requires recirculating water through prescription had been asserted to reduce those retained fishponds, and there is little consumptive use or surface overlying rights. evaporation. Leftover water flows out the other end of (10d) (10d) Likewise, no precedent exists for requiring the ponds and is applied to irrigation. From a gross an overlying user to file an action to protect its right to annual production of 18,625 acre-feet, the trial court pump groundwater. The laches doctrine did not bar a estimated Jess Ranch's total consumptive use at 7,480 plaintiff's action, for example, even where defendant acre-feet. The court used this value to set Jess Ranch's cities increased their pumping of an overdrafted water free production allowance. The judgment allowed Jess supply long before the action commenced, and Ranch to continue to produce recirculated water for development relied on the new water production in the aquaculture, but required it to discharge the water interval. ( Orange County Water District v. City of Riv- directly to the Mojave River after this use. erside (1959) 173 Cal. App. 2d 137, 219-220 [343 P.2d In our view, the trial court's estimate of Jess Ranch's 450].) free production allowance was based on reasonable 2. Jess Ranch assumptions.Although Jess Ranch practiced agriculture and aquaculture during the period used for calculating (11) (11) Although the Court of Appeal was careful not to free production allowances, it is in the process of endorse the physical solution or trial court judgment, it changing its property use to commercial and residential. considered whether Jess Ranch had the right to be The trial court estimated its future consumptive use at included in the physical solution on the same terms as 1,300 acre-feet per year. It concluded that evidence did some other stipulating parties. The trial court judgment not establish the amount of land Jess Ranch had in specified free production allowances for the basin's agriculture. On the basis of expert testimony, the court water producers. For most, this value was set at the multiplied an upward estimate, 600 acres, by 10 producer's maximum production during the years acre-feet per acre, with the product representing the 1986-1990. Jess Ranch's free production allowance agricultural [**873] water use. This product was added

15 Prior to oral argument, we granted Jess Ranch's motion to take judicial notice of the Fourth Annual Report of the Mojave Basin Area Watermaster, Water Year 1996-1997 (Apr. 1, 1998), the most recent annual report the Mojave Water Agency was required to file with the trial court in its capacity as a watermaster. (See City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal. App. 4th 960, 967, fn. 2 [3 Cal. Rptr. 2d 643].) As to other pending matters, we rule as follows: (1) deny Jess Ranch's motion for immediate issuance of the remittitur to the superior court, for failure to show good cause under California Rules of Court, rule 25(b); and (2) deny amicus curiae Pacific Legal Foundation's motion to strike footnote 21 of respondents' consolidated answer to amici curiae briefs, page 24, for containing an inaccurate characterization of Pacific's amicus curiae brief, and instead disregard the defect and consider the brief without it. ( Cal. Rules of Court, rule 18(3).)

Chase Nielson Page 23 of 23 23 Cal. 4th 1224, *1255; 5 P.3d 853, **873; 99 Cal. Rptr. 2d 294, ***315 to the estimated amount of water lost from lake of Appeal found an abuse of discretion as to Jess evaporation and the amounts needed for home use and Ranch, we do not. HN26 Equity demands that similarly greenbelt irrigation. The sum is Jess Ranch's situated parties be treated similarly. Jess Ranch was consumptive use. The court used this value as its free one of 26 producers that recirculated water. It seems production allowance. reasonable to differentiate these users from others that did not recirculate water, but that put their full gross Jess Ranch was not the only party whose free production amount to use. It is difficult to fathom what production allowance was set equal to its estimated reasonable, beneficial purpose is served by allowing consumptive use. Twenty-five other parties, including Jess Ranch to retain both the amount of water used and the California Department of Fish and Game, the amount recirculated. maintained fish hatcheries or recreational lakes; their free production allowances were also set at the level of V. DISPOSITION their consumptive use (total production less recirculated water). 16 Some other recreational lakes [***316] were We affirm the Court of Appeal judgment in all respects given base production rights based on [*1256] actual except that we reverse its judgment as to the Jess production, with the contingency that if they ever ceased Ranch appeal. We therefore remand the matter to the production, they could only transfer their consumptive Court of Appeal for further proceedings consistent with use portion of those rights. 17 this conclusion. George, C. J., Mosk, J., Kennard, J., Baxter, J., Brown, The trial court exercised its equitable powers in J., and Johnson, J., * concurred. approving the proposed physical solution and entering the judgment, and the Court ofAppeal properly reviewed The petition of appellant Jess Ranch Water Company the judgment under the abuse of discretion standard of for a rehearing was denied October 25, 2000. Werdegar, review. ( In re Marriage of Doud (1986) 181 Cal. App. 3d J., did not participate therein. 510, 524-525 [226 Cal. Rptr. 423].) But where the Court

16 Jess Ranch has highlighted a number of parties that reused water without having their free production allowances adjusted. For example, the Silver Lakes Association reused water on a golf course. These producers are distinguishable from the subgroup of hatcheries and recreational lakes discussed above. With the possible exception of the Hesperia Water District, the trial court assumed that the latter group recirculated unused water to the basin. The Hesperia Water District (Hesperia) maintained an aquaculture operation using 700 acre-feet per year, about 6 percent of its production allowance. It is not clear from the judgment or amended statement of decision why the trial court did not reduce Hesperia's production allowance to reflect this usage. Certainly aquaculture represents a far smaller percent of Hesperia's total water use (less than 6 percent) than is the case with Jess Ranch (over 60 percent). This possible exception does not disturb the conclusion that Jess Ranch was treated like the majority of other hatcheries and recreational lakes that recirculated water. This subgroup all returned well over 50 percent of the water they produced to the basin.

17 Jess Ranch also argues that if we reverse the Court of Appeal judgment in its favor, we must on remand require the trial court to consider its water priorities in determining its prior allocation under the physical solution and trial court judgment. But like the Court of Appeal, we find it unnecessary for the trial court to establish Jess Ranch's water rights on remand as long as Jess Ranch seeks to participate in the physical solution. As the Court of Appeal observed, the physical solution "establishes a system of water regulation for the stipulating parties that is independent of their water rights, if any, under traditional application of riparian, overlying or appropriative priorities. Since Jess Ranch seeks to participate in the system established by the [physical solution], it must waive its existing water rights in order to do so. Thus, the question of whether it has existing rights is irrelevant for this purpose. If Jess Ranch desires to participate in the [physical solution], it must, for this purpose, refrain from asserting its existing water rights and it must accept all of the terms of the [physical solution] judgment that are applicable to all stipulating parties."

* Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.

Chase Nielson User Name: Chase Nielson Date and Time: 06 Jul 2016 3:22 p.m. MDT Job Number: 34386191

Document(1)

1. Coordinated v. Diamond Farming Co. L.A. County Superior Court Case No. Bc 325 201, 2006 Cal. Super. LEXIS 193 Client/Matter: -None- Search Terms: 2006 Cal. Super. LEXIS 193. Search Type: Natural Language

Coordinated v. Diamond Farming Co. L.A. County Superior Court Case No. Bc 325 201 Superior Court of California, County of Los Angeles September 22, 2006, Decided Judicial Council Coordination Proceeding No. 4408

Reporter 2006 Cal. Super. LEXIS 193 Coordinated Proceeding Special Title (Rule Opinion 1550(b));ANTELOPE VALLEY GROUNDWATER CASES;Included Actions:Los Angeles County ORDERAFTERHEARINGREMOTIONBYTHE Waterworks District No. 40 v. Diamond Farming Co. Los UNITED STATES FOR JUDGMENT ON THE Angeles County Superior Court Case No. BC 325 PLEADINGS 201;Los Angeles County Waterworks District No. 40 v. Diamond Farming Co. Kern County Superior Court This motion for Judgment on the Pleadings by the Case No. S-1500-CV-254-348;Wm. Bolthouse Farms, United States came on for hearing on September 21, Inc. v. City of Lancaster Diamond Farming Co. v. City of 2006. The court having reviewed the papers and heard Lancaster Diamond Farming Co. v. Palmdale Water oral argument thereon, now makes the following order: District Riverside County Superior Court Consolidated Action, Case Nos. RIC 353 840, RIC 344 436, RIC 344 These coordinated actions involve a determination of 668 AND RELATED CROSS-ACTIONS. the rights of the parties to use the groundwater within the Antelope Valley Groundwater Basin. On January Core Terms 18, 2006, parties variously known as "Municipal Purveyors," "Public Water Suppliers," or "Municipal Water Providers" 1 filed a Cross-Complaint for groundwater, basin, water rights, rights, watershed, declaratory and injunctive relief. The motion specifically surface water, parties, Municipal, river system, addresses the Cross Complaint. adjudications, River, underground, pleadings, surface stream, contends, stream, sovereign immunity, The Municipal Purveyors ". . . seek[] a judicial hydrologically, users, right to use, water source, determination of rights to all water within the Antelope appropriation, piecemeal, reserved, joined, surface flow, Valley Groundwater Basin ...." (Municipal Purveyors' quantity, riparian, Valley, cases Cross-Complaint, [ 1.) The Municipal Purveyors seek to limit pumping in the basin due to the alleged declining Judges: [*1] Hon. Jack Komar, Judge of the Superior groundwater levels, diminished groundwater storage, Court. and land subsidence damage in the Basin. (Id., ¶ 25.) The relief sought includes declarations regarding (1) Opinion by: Hon. Jack Komar, Judge of the Superior prescriptive rights, (2) appropriative rights, (3) a physical Court. solution, (4) municipal priority, (5) storage of imported water, (6) recapture of return flows, (7) unreasonable use of water, and (8) the boundaries of the basin, and appropriate injunctive orders.

1 The public water entities variously refer to themselves by different names and at times include different parties. (See Municipal Purveyors’ Cross-Complaint, at caption of pleading [referring to the Cross-Complaint of the ″Municipal Purveyors″], at 7:14-17 [eight entities defined as ″Public Water Suppliers″], at ¶r 2-10 [nine entities identified as Cross-Complainants]; see also Municipal Water Providers’ Mem. Opp. United States [*2] Mot. J. Pleadings, at 3:27-28 fn. 5 [defining ″Municipal Water Providers,″ who oppose motion for judgment on the pleadings, as including only five entities].)

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The United States is named as one of the from suit are to be construed strictly in favor of the cross-defendants in light of its ownership of real property sovereign." (McMahon v. United States (1951) 342 U.S. within the Antelope Valley and because it is a major 25, 27.) water producer within the valley. Through the McCarran Amendment, Congress has The United States moves for judgment on the pleadings waived sovereign immunity of the United States in suits on the ground of sovereign immunity. The United States involving the adjudication of water rights. The McCarran contends that the Cross Complaint fails to meet the Amendment states in relevant part: requirements [*3] of the McCarran Amendment, 43 U.S.C. § 666, without which there is no waiver of Consent is hereby given to join the United States as sovereign immunity, and the United States must be a defendant in any suit (1) for the adjudication of dismissed as a party to the Cross-Complaint. rights to the use of water of a river system or other source, or (2) for the administration of such rights, Oppositions, "responses," or "position statements" have where it appears that the United States is the owner been filed by the following parties: (1) Municipal of or is in the process of acquiring water rights by Purveyors, (2) Tejon Ranchcorp, (3) Diamond Farming, appropriation under State law, by purchase, by (4) State of California parties, (5) Bolthouse Properties, exchange, or otherwise, and the United States is a (6) the Van Dams, and (7) Antelope Valley-East Kern necessary party [*5] to such suit. The United States, Water Agency. when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws Diamond Farming also filed a joinder to the response by are inapplicable or that the United States is not the State of California parties. The City of Palmdale has amenable thereto by reason of its sovereignty, and filed a joinder to the Municipal Water Providers' (2) shall be subject to the judgments, orders, and opposition. decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to A motion for judgment on the pleadings may be granted the same extent as a private individual under like if the complaint fails to state a cause of action. (Cal. Civ. circumstances: Provided, That no judgment for Proc. Code § 438, subd. (c)(l)(B)(ii).) The motion may costs shall be entered against the United States in be made as to the entire complaint or as to any of the any such suit. causes of action stated therein. (Id., § 438, subd. (c)(2)(A).) The grounds for the motion must appear on (43 U.S.C.S. § 666(a).) the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Id., The Ninth Circuit has provided the context in which the § 438, subd. (d).) McCarran Amendment was passed:

"The United States, as sovereign, is immune from suit By the time the McCarran Amendment was passed, save as it consents to be sued [citations], and the terms most Western states had adopted some statutory of its consent to be sued in any court define that court's procedure for the mass adjudication of water rights. jurisdiction to entertain the [*4] suit. [Citations.]" (United [Citation.] While these statutory adjudications States v. Sherwood (1941) 312 U.S. 584, 586-587.) As seemed to promise an end to the confusing and explained by the United States Supreme Court: conflicting adjudication of water rights in multiple cases, the system was impaired by the refusal of The basic rule of federal sovereign immunity is that the federal government to participate. Since the the United States cannot be sued at all without the United States had large landholdings and extensive consent of Congress. A necessary corollary of this reserved water rights in the West, its claims of rule is that when Congress attaches conditions to sovereign immunity significantly diminished the legislation waiving the sovereign immunity of the value of the comprehensive [*6] state adjudications. United States, those conditions must be strictly Congress sought to remedy this problem by observed, and exceptions thereto are not to be enacting the McCarran Amendment in 1952. See S. lightly implied. Rep. No. 755, 82d Cong., 1st Sess. 4-6 (1951).

(Block v. North Dakota (1983) 461 U.S. 273, 287.) Thus, (United States v. Oregon, Water Resources Dep 't (9th ". . . statutes which waive immunity of the United States Cir. 1994) 44 F.3d 758, 765.)

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In discussing the intent behind the McCarran groundwater in the Basin, the United States argues Amendment, the United States Supreme Court has that the proceedings are not an "adjudication of stated: rights to the use of water of a river system or other The clear federal policy evinced by that legislation source." 43 U.S.C. § 666(a).Arguing that the ground is the avoidance of piecemeal adjudication of water and surface waters of the [*8] region are rights in a river system. This policy is akin to that hydrologically interrelated, the United States underlying the rule requiring that jurisdiction be contends that the failure to include groundwater yielded to the court first acquiring control of property, claims deprives the adjudication of the for the concern in such instances is with avoiding comprehensiveness intended by Congress. the generation of additional litigation through The text of the Amendment lends little support to permitting inconsistent dispositions of property. This the United States' position. On its face, the statute concern is heightened with respect to water rights, applies to the "water of a river system or other the relationships among which are highly source." Groundwater may be included as an "other interdependent. Indeed, we have recognized that source," but the use of "or" strongly suggests that actions seeking the allocation of water essentially the adjudication may be limited to either a river involve the disposition of property and are best system or some other source of water, like conducted in unified proceedings. See Pacific Live groundwater, but need not cover both. For the Stock Co. v. Oregon Water Bd. [(1916) 241 U.S. United States' argument to succeed, we must read 440], at 449. The consent to jurisdiction given by "river system" to include not only the water of the the McCarran Amendment bespeaks a policy that river, but hydrologically-related groundwater recognizes the availability of comprehensive state systems as well. systems for adjudication of water rights as the In support of this interpretation, the United States means for achieving these goals. refers to cases stating that theAmendment's waiver (Colorado River Water Conservation Dist. v. United is limited to "general" or "comprehensive" States (1976) 424 U.S. 800, 819.) The Supreme Court adjudications. See, e.g., United States v. Idaho, has [*7] also quoted Senator McCarran, Chairman of [123 L. Ed. 2d 563, 113 S. Ct. 1893, 1894 (1993)]; the Committee reporting on the bill, who made this Dugan v. Rank, 372 U.S. 609, 618, 10 L. Ed. 2d 15, statement in response to another senator: 83 S. Ct. 999 (1963). These cases make clear that the adjudication must include the undetermined "S. 18 is not intended . . . to be used for any other claims of all parties with an interest in the relevant purpose than to allow the United States to be joined water source. However, these cases do not address in a suit wherein it is necessary to adjudicate all of the proper definition of the relevant water source the rights of various owners on a given stream. This and do not decide if groundwater must be included is so because unless all of the parties owning or in [*9] in an adjudication of a "river system." The the process of acquiring water rights on a particular United States can point to no other case law, stream can be joined as parties defendant, any statutory text or legislative history that specifically subsequent decree would be of little value." requires groundwater to be adjudicated as part of (See United States v. District Court of County of Eagle the comprehensive adjudication of a "river system." (1971) 401 U.S. 520, 525 [quoting S. Rep. No. 755, 82d The United States argues instead that the purposes Cong., 1st Sess., 9.].) of the Amendment are best served by an interpretation that requires the adjudication of all In United States v. Oregon, Water Resources Dep't (9th hydrologicallyrelated water sources. We agree that Cir. 1994) 44 F.3d 758, the Ninth Circuit addressed the the McCarran Amendment was motivated in large scope of the adjudication necessary under the part by the recognition of the interconnection of McCarran Amendment. Oregon involved surface water water rights among claimants to a common water in the Klamath River Basin. The United States argued source and the desire to avoid piecemeal the adjudication needed to include groundwater. The adjudication of such rights. However, we do not Ninth Circuit disagreed, reasoning as follows: believe that Congress intended to carry the Because the Klamath Basin adjudication does not requirement of comprehensiveness as far as the attempt to determine the rights of claimants to United States would have us do.

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The Supreme Court addressed the scope of the [Samuel C. Wiel, Water Rights in the Western States comprehensiveness requirement in Eagle County, §§ 1039-42 (3d ed. 1911)]. Under the traditional where the State of Colorado attempted to adjudicate groundwater doctrines of absolute dominion, the the water rights of claimants to the Eagle River and American reasonable use rule, and the correlative its tributaries. [United States v. District Court for rights rule, the priority of first use of the groundwater Eagle County, 401 U.S. 520, 521, 28 L. Ed. 2d 278, is irrelevant to establishing the relative rights of 91 S. Ct. 998 (1971).] The Eagle River is itself a users of the groundwater. See 3 Beck, supra § tributary of the Colorado River. Id. The United States 20.07(b)(2). Thus, a major function of the statutory argued that because the Eagle was hydrologically comprehensive adjudications is made unnecessary related to the Colorado, a comprehensive - there is no need to establish the relative priority of adjudication under [*10] the McCarran Amendment all users' claims in order to define each user's must include an adjudication of the entire Colorado rights. The United States is correct in arguing that River. The Court rejected this contention as "almost an increased recognition of the relationship between frivolous." Id. at 523. "No suit by any State could ground and surface water has lead some states to possibly encompass all of the water rights in the attempt better coordination between the allocation entire Colorado River which runs through or touches of surface and groundwater rights, see 3 Beck, many States. The 'river system' must be read as supra [*12] § 24.01(b), but that recognition was still embracing one within the particular State's emerging at the time the McCarran Amendment jurisdiction." Id. This discussion suggests that, was passed.[2 See id; 2 Hutchins, supra at 634-53. contrary to the United States' assertions, the While the trend has been toward a greater legal comprehensiveness requirement does not mandate recognition of the connection between ground and that every hydrologically-related water source be surface waters, that recognition is too recent and included in the adjudication. too incomplete to infer that Congress intended to require comprehensive stream adjudications under We conclude that while the adjudication must avoid the McCarran Amendment to include the excessively piecemeal litigation of water rights, it adjudication of groundwater rights as well as rights need not determine the rights of users of all to surface water. hydrologically-related water sources. As one authority has noted: The Tribe and the United States note that the use of groundwater in the Klamath Basin may have a scientists have long delighted in pointing out to direct effect on the availability of water to fulfill the lawyers that all waters are interrelated in one reserved water rights guaranteed to them under continuous hydrologic cycle. As a result, it has federal law. They note that the State's distribution of become fashionable to argue that an effective groundwater rights may have the effect of interfering legal regime should govern all forms and uses with these federal water rights. The appellants raise of water in a consistent and uniform manner. legitimate concerns about the relationship between The law is otherwise. federal reserve water rights in a river and the 1 [Robert E. Beck, Waters and Water Rights § 6.02 distribution of water rights in hydrologically related (1991)] (footnotes omitted). groundwater. However, these concerns go to the One of the ways [*11] in which the law has merits of the adjudications. As the Supreme Court traditionally ignored the exhortation of the scientists has noted, in administering water rights the State is is by treating ground and surface water as distinct compelled to respect federal law regarding [*13] subjects, often applying separate law to each. While federal reserved rights and to the extent it does not, rights to surface water in the Western states have its judgments are reviewable by the Supreme Court. generally been allocated under the appropriation See Eagle County, 401 U.S. at 525-26. doctrine, the rights to groundwater were traditionally For these reasons, we hold that the Klamath Basin riparian. See 3 Beck, supra §§ 20.03-20.04; 2 adjudication is in fact the sort of adjudication

2 "It appears that in 1952, the doctrine of prior appropriation was applied to percolating groundwater in Idaho, Kansas, Nevada, Oklahoma, and Utah, while riparian doctrines were applied to groundwater in Arizona, California, Colorado, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Texas, Washington, and Wyoming. 2 Hutchins, supra at 634-53."

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Congress meant to require the United States to water rights. To protect those rights, the United States participate in when it passed the McCarran contends it may need to pursue separate injunctive Amendment. Accordingly, federal sovereign suits against such adverse water use. (See United immunity imposes no bar to the United States' States' Mem. Supp. Mot. J. Pleadings, at 8:27-9:9 [citing participation in that process. In re The General Adjudication Of All Rights To Use Water In The Gila River System And Source (Ariz. (United States v. Oregon, Water Resources Dep 't (9th 1999) 195 Ariz. 411, 420 [989 P.2d 739, 748] ["... we Cir. 1994) 44 F.3d 758, 768-770.) hold that the trial court correctly determined that the federal reserved water rights doctrine applies not only There is no case directly addressing whether an to surface water but to groundwater."]].) adjudication of water rights with respect to only groundwater constitutes a "river system" or "other In opposition to the United States' emphasis on the source" within the meaning of 43 U.S.C. § 666(a) of the interrelationship between surface water and McCarran Amendment. groundwater, some of the opposing parties contend the water rights to the two sources of water may be The United States relies on cases involving surface adjudicated separately, particularly given the separate streams for the general proposition that all landowners bodies of law that have developed regarding the [*16] on the watershed and all other potential claimants to the two types of water. Nonetheless, California law stream must be joined in a lawsuit in order for [*14] the recognizes that there may be a circumstance where a McCarran Amendment to apply. The United States party's right to use one type of water improperly contends in this case that the groundwater in the basin interferes with another party's right to use the other type is the "residue" of surface water, including surface water of water. For example, if groundwater usage depletes a that originated from outside the basin but within the surface stream, the party claiming water rights to the "watershed." Because all surface water in the watershed surface stream may seek damages or restrict the usage is related or part of a river system, the United States by the party claiming groundwater rights. (See O'Leary contends all owners of lands on the watershed and all v. Herbert (1936) 5 Cal.2d 416 [plaintiffs entitled to appropriators who use water from the river must be damages for the cessation of the flow of water from a joined in this action. Adjudication of only groundwater spring on their lands caused by a tunnel, dug and driven claims would result in piecemeal resolution of water by Hastings Quicksilver Mining Company, piercing an rights in the watershed, according to the United States. underground reservoir which fed the spring on plaintiffs' property; water from the underground reservoir was In support of this argument, the United States offers two allowed to run to waste through the tunnel, and the examples of where it would be subject to piecemeal underground reservoir supplying it had been drained to litigation if the instant action is not enlarged to include a point below the level of the spring, thereby causing the (a) the entire watershed (not just the basin), and (b) water to cease to flow]; Verdugo Canon Water Co. v. surface water (not just groundwater). First, regarding Verdugo (1908) 152 Cal. 655, 663-664 ["It is obvious land outside the basin but within the watershed, the that the continued presence in the soil, sand, and United States asserts that it manages large tracts of gravel, composing the bed of the canon, of a sufficient land in the San Gabriel mountains in the southeast quantity of water to supply and support these surface corner of the watershed, and controls land in the streams in their natural state, is essential to their northern region of the Antelope Valley watershed. The existence and preservation, and that the parties have United States contends that rights to use the water in as clear [*17] a right to have this quantity remain these [*15] areas may be subject to piecemeal underground for that purpose as they have to the stream adjudication in future separate actions. (See United upon the surface. Neither party should be permitted to States' Mem. Supp. Mot. J. Pleadings, at 8:20-26.) decrease this necessary quantity of underground water to the depletion of the surface stream and the injury of Second, the United States contends the use of surface those to whom it has been assigned. This much is clear water in the watershed may affect its rights to water from the previous decisions of this court. [Citations.]"]; based on federal law. For instance, diversion of surface see also Hudson v. Dailey (1909) 156 Cal. 617, 628 [a water could impact the recharge of groundwater used stream, percolating waters feeding the stream and by Edwards Air Force Base and reserved to the United necessary to its continued flow, and waters in the gravels States under the doctrine of implied federal reserved immediately beneath and directly supporting the surface

Chase Nielson Page 6 of 7 2006 Cal. Super. LEXIS 193, *17 flow are part of a "common supply" of water]; Rancho basin, how would a reduction in the groundwater in the Santa Margarita v. Vail (1938) 11 Cal.2d 501, 555-556 basin, or an adjudication of the water rights pertaining to ["Respondent takes the position that it, as a lower the groundwater in the basin, affect them? (The only riparian, is entitled to its portion of the surface flow of the theory asserted by the United States in this regard stream regardless of the needs of the upper riparians, pertains to federal reserve water rights. However, regardless of the quantity of water available in the because the United States is already included in this underground basins fed by the river, and regardless of action, it may assert whatever reserve water rights it the ease with which water can be extracted from these believes it has in order to claim greater water rights to basins, and that it cannot be compelled as against groundwater in the basin.) A further issue to be appellants to resort to its underground basins to fill, in considered is what rights, if any, ground water users whole or in part, its reasonable needs. Stated in another have [*20] as against surface water riparian owners, way, respondent contends that the underground basins both within the Basin and in the watershed. filled to the brim serve a reasonable beneficial [*18] purpose in supporting the surface flow. We cannot say Do groundwater users outside the basin, but within the as a matter of law, applicable to every case, that the use watershed, have an interest in the basin groundwater to of underground basins simply to support the surface be adjudicated? For example, would a reduction in the flow in order that use may be made of the surface flow, basin groundwater affect the groundwater supply in is or is not a reasonable beneficial use. That is a areas outside the basin but within the watershed? Then question of fact that must be passed upon in each perhaps the groundwater in the entire watershed should case."].) be included if taking water from one necessary reduces an equivalent amount available in the other. Thus, to extent the use of groundwater in the basin Alternatively, should the groundwater outside the basin affects the groundwater supply in other parts of the area be considered another, independent source of watershed, or affects the surface stream within the water that is separate from the basin area? If the basin basin or within the entire watershed, then the groundwater levels operate relatively independently adjudication of groundwater rights in the basin should from the groundwater quantities outside the basin, then be expanded to include those with (a) an interest in it may be proper to treat them as separate systems. water rights in the entire watershed, not just the basin, and (b) an interest in surface streams in the entire In sum, evidence is needed regarding (1) the hydrology watershed. of the basin, including regarding surface water and groundwater, (2) the hydrology of the area outside the Of course, without evidence as to the how water flows basin but within the watershed, and (3) the extent of the underground and on the surface in the watershed, and interrelationship between the two. With this evidence, a the extent to which the groundwater in the basin affects determination may be made as to whether there are or is affected by the availability of water in other parts of sufficiently interlocking or correlative [*21] rights the watershed, it is impossible to determine the identity between those who are already a part of this action, and of those individuals, landowners, etc. who might claim a those who the United States contends should be joined sufficiently significant interest in the basin groundwater in the action, e.g., those claiming rights in the surface adjudication such that the time, effort, [*19] and expense streams and in the watershed as a whole. To the extent of including them in this action is worthwhile. the hydrology supports an assumption that there may be interlocking or correlative rights regarding Compounding the problem is the parties' (particularly groundwater in the basin and other water, this action the United States') failure to clearly set forth the legal should be expanded as suggested by the United States. theory or theories that might be asserted (to the Based solely on the allegations of the Municipal groundwater to be adjudicated) by individuals not Purveyors' Cross-Complaint, however, it is impossible already included in this action. For example, do surface to make this determination at this point. stream users located outside the basin (e.g., in the mountains and hills surrounding the basin) have an In effect, then, this motion is premature. The court interest in the groundwater at issue in this action? If so, cannot determine whether or not the McCarran under what theory? They are not overlying owners, nor Amendment is satisfied based solely on the pleadings; are they apparently appropriators pumping groundwater evidence as indicated above is required for that purpose. from the basin. Further, if they are upstream from the Accordingly, the motion for judgment on the pleadings

Chase Nielson Page 7 of 7 2006 Cal. Super. LEXIS 193, *21 by the United States is DENIED but without prejudice to Dated: SEP 22 2006 the United States raising the issue at a later time based /s/ [Signature] upon the evidence. Hon. Jack Komar SO ORDERED. Judge of the Superior Court SO ORDERED.

Chase Nielson User Name: Chase Nielson Date and Time: 06 Jul 2016 3:22 p.m. MDT Job Number: 34386404

Document(1)

1. Coordination Proceeding Special Title Rule 1550b v. Diamond Farming Co. Superior Court of Cal. L.A., 2010 Cal. Super. LEXIS 752 Client/Matter: -None- Search Terms: 2010 Cal. Super. LEXIS 752 Search Type: Natural Language

Coordination Proceeding Special Title Rule 1550b v. Diamond Farming Co. Superior Court of Cal. L.A. Superior Court of California, County of Los Angeles February 19, 2010, Decided; February 24, 2010, Filed Judicial Council Coordination Proceeding No. 4408

Reporter 2010 Cal. Super. LEXIS 752 Coordination Proceeding Special Title (Rule The City of Palmdale, Rosamond Community Services 1550(b));ANTELOPE VALLEY GROUNDWATER District, Los Angeles County Waterworks District No. CASES;Included Actions:Los Angeles County 40, Littlerock Creek Irrigation District, Palm Ranch Waterworks District No. 40 v. Diamond Farming Co. Irrigation District, California Water Service Company, Superior Court of California County of Los Angeles, Quartz hill District, City of Lancaster, and Palmdale Case No. BC 325 201;Los Angeles County Waterworks Water District (collectively, "Public Water Suppliers") District No. 40 v. Diamond Farming Co. Superior Court filed Motions to consolidate all of the coordinated matter of California, County of Kern, Case No. presently pending before the Court. The motions were S-1500-CV-254-348;Wm. Bolthouse Farms, Inc. v. City heard on August 17, 2009 and, at the conclusion of the of Lancastei Diamond Farming Co. v. City of Lancaster hearing, the Court orally stated its intent to grant the Diamond Farming Co. v. Palmdale Water Dist. Superior motions and directed the parties to meet and confer concerning a form of order and to present to the Court a Court of California, County of Riverside, consolidated proposed order granting the motion. Subsequently, actions, Case Nos. RIC 353 840, RIC 344 436, RIC 344 proposed orders and written arguments were filed and 668;Rebecca Lee Willis v. Los Angeles County a hearing on the form of the order was held on February Waterworks District No. 40 l Superior Court of California, 5, 2010. County of Los; Angeles, Case No. BC 364 553 All of the included actions are complex and were ordered Core Terms coordinated under the provisions of Code of Civil Procedure Section 401.1. To the extent the actions were filed, or were being heard in courts other than this parties, consolidation, coordination, water rights, rights, Court, the Order of Coordination required the transfer basin, Groundwater, settlement, Valley, cases, cause of [*2] of the cases to this court for all purposes. action, purposes, aquifer, issues, declaratory relief, judgments, withdraw The Complaints and Cross-Complaints all include, in one form or other, declaratory relief causes of action Judges: [*1] Hon. Jack Komar, Judge of the Superior seeking determinations of the right to draw ground Court. water from the Antelope Valley basin. These claims are central to every action pending before the Court. In a Opinion by: Hon. Jack Komar, Judge of the Superior single aquifer, all water rights are said to be correlative Court. to all other water rights in the aquifer. A determination of an individual party's water rights (whether by an action Opinion to quiet title or one for declaratory relief) cannot be decided in the abstract but must also take into consideration all other water rights within a single ORDERTRANSFERRINGANDCONSOLIDATING aquifer. 1 All actions pending, therefore, of necessity ACTIONS FOR ALL PURPOSES involve common issues of law and fact relating to the

1 In an earlier phase of the proceedings, the court found as a matter of fact that the area within the jurisdictional boundaries of the valley constituted a single aquifer.

Chase Nielson Page 2 of 4 2010 Cal. Super. LEXIS 752, *3 determination of the relative rights to withdraw water a comprehensive adjudication all parties who have a from the Antelope Valley Groundwater Basin in the water rights claim must be joined in the action and the Antelope Valley and all parties to the litigation claiming judgment must [*5] bind all the parties. Without water rights are necessary parties to the Court consolidation there is risk that the United States might adjudicating a binding determination of those rights. attempt to withdraw from the proceedings for lack of a Thus, it appears to the Court that consolidation is not comprehensive judgment. It may be that coordination only necessary but desirable. Entering separate itself might permit a single comprehensive judgment judgments would not permit the court to enforce the but consolidation would eliminate any risk of uncertainty. judgments once they are [*3] entered without Consolidation of the water rights claims will result in a transferring each case back to this Court. comprehensive adjudication and a judgment that will affect all the parties. Complete consolidation will permit It is argued by several parties that consolidating the these matters to proceed as an inter se adjudication of cases will require litigating against parties they did not the rights of all the parties to these consolidated cases sue and would subject them to potential costs and fees to withdraw groundwater from the Antelope Valley in actions to which they were not parties. However, the Groundwater Basin. only cause of action that would affect all parties to the consolidation are the declaratory relief causes of action While there is a dearth of case law on the issue of which seek a declaration of water rights (by definition, consolidation in coordinated cases, it does seem that correlative rights). If the basin is in overdraft (a fact still Code of Civil Procedure Section 1048 applies in these to be established), the Court in each declaratory relief cases and authorizes a consolidation that will result in a proceeding would of necessity have to look at the final judgment. The California Rules of Court 3.451 totality of pumping by all parties, evaluate the rights of requires active management by the coordination trial all parties who are producing water from the aquifer, judge and specifically provides for separate and joint determine whether injunctive relief was required, and trials of causes of action and issues, as the court in its determine what solution equity and statutory law discretion might order. required (including a potential physical solution). All other causes of action could only result in remedies Pursuant to Rule 3.545(d) of the Rules of Court, certified involving the parties who were parties to the causes of copies of the judgments bearing the original case action. Costs and fees [*4] could only be assessed for numbers of the cases must be entered in the courts or against parties who were involved in particular where the cases were being [*6] heard immediately actions. prior to coordination and unless the coordination judge orders otherwise, the judgments are enforced in those Consolidation will allow for the entry of single statements original jurisdictions. However, Rule 3.545(d) empowers of decision in subsequent phases specifying the identity the court to provide for the court in which post judgment of the parties who are subject to the particular provisions proceedings will occur and to provide for the court in and a single judgment resulting in a comprehensive which any ancillary proceedings will be heard. In this adjudication of rights to water from the Antelope Valley case, that court should be the coordination court in Groundwater Basin which, among other things, is order to ensure proper enforcement of the judgment or intended to satisfy the requirements of the McCarran judgments. Amendment, 43 U.S.C. § 666. This order of consolidation will not preclude any parties The United States is the largest land owner in the from settling any or all claims between or among them, Antelope Valley and claims reserved water rights under as long as any such settlement expressly provides for federal law. The United States was made a party the Court to retain jurisdiction over the settling parties defendant in this action so that the declaratory relief for purposes of entering a judgment resolving all claims actions could result in a complete adjudication. No party to the rights to withdraw groundwater from the Antelope objected to the participation of the United States in Valley Groundwater Basin as well as the creation of a these coordinated actions. There is jurisdiction over the physical solution if such is required upon a proper United States only if authorized by Congress. The finding by the Court. Upon appropriate motion and the McCarran Amendment provides a limited waiver of opportunity for all parties in interest to be heard, the immunity for joinder in comprehensive adjudications of Court may enter a final judgment approving any all rights to a given water source. In order for there to be settlements, including the Willis and Wood class

Chase Nielson Page 3 of 4 2010 Cal. Super. LEXIS 752, *6 settlements, that finally determine all cognizable claims g. Richard A. Wood, et al. v. Los Angeles County for relief among the settling parties [*7] for purposes of Waterworks District No. 40, et al., Los Angeles incorporating and merging the settlements into a County Superior Court, Case No. BC 391869; comprehensive single judgment containing such a and declaration of water rights and a physical solution. Any h. And all cross-complaints filed in any of the such settlement can only affect the parties to the above-referenced actions. settlement and cannot have any affect on the rights and duties of any party who is not a party to any such 3. The action entitled Sheldon R. Blum, Trustee settlement. Complete consolidation shall not preclude for the Sheldon R. Blum Trust v. Wm. Bolthouse or impair any class' right to seek the entry of a final Farms, Inc., Los Angeles County Superior judgment after settlement. Court, Case No. 1-05-CV-049053, is not consolidated, but shall remain related and Therefore it is ordered as follows: coordinated with the actions and cross-actions Except as otherwise stated below the motion to [*9] referenced in paragraph 3 above. transfer and to consolidate for all purposes is GRANTED. 4. The Court has ordered a Case Management Conference at which it will hear arguments 1. To the extent not previously transferred as a concerning the order in which common issues result of the Judicial Council's order of will be heard and to set the matter for further coordination, all matter presently pending under trial. It is the Court's present intent to first the Judicial Council Coordination Proceeding schedule trial on the common issues relating to No. 4408 are ordered transferred from the declaratory relief which will include the Riverside County Superior Court and Kern determination of overall condition of County Superior Court to the Los Angeles groundwater basin: County Superior Court, the Honorable Jack Komar, judge presiding by special assignment. 1. Safe Yield 2. The following actions are consolidated for all 2. Overdraft purposes because declaratory relief concerning rights to the ground water in the single aquifer 5. The determination of rights to withdraw is central to each proceeding: groundwater, and claims to prescription, issues affecting appropriation, municipal/domestic a. Wm. Bolthouse Farms, Inc. [*8] v. City of priority, rights to imported water/storage rights, Lancaster, et al., Riverside County Superior return flow rights, reasonable and beneficial Court, Case No. RIC 353840; use of water, recycled water, quiet title, export b. Diamond Farming Co., et al. v. City of of water, determination of federal reserved right Lancaster, et al., Riverside County Superior to water and physical solution may follow. Court, Case No. RIC 3444436; 6. The following described causes of action for c. Diamond Farming Co. v. Palmdale Water damages and other declaratory relief will District, et al., Riverside County Superior Court, proceed after the determination of the issues Case No. RIC 344668; identified in paragraphs 4 and 5 above. Any d. Los Angeles County Waterworks District No. waiver of immunity by the United States under 40 v. Diamond Farming Co., et al., Kern County the McCarran Amendment does not extend to Superior Court, Case No. S-1500-CV-254-348; these claims; jurisdiction over the United States does not attach to these claims or causes of e. Los Angeles County Waterworks District No. action alleging these claims, and [*10] any 40 v. Diamond Farming Co., et al., Los Angeles determination on these claims shall not bind or County Superior Court, Case No. BC 325201; otherwise adversely affect the rights of the f. Rebecca Lee Willis, et al. v. Los Angeles United States: County Waterworks District No. 40, et al., Los a) Conversion Angeles County Superior Court, Case No. BC 364553; b) Nuisance

Chase Nielson Page 4 of 4 2010 Cal. Super. LEXIS 752, *10 c) 42 U.S.C. § 1983 SO ORDERED. d) Takings/Inverse Condemnation Dated: FEB 19 2010 e) Trespass 7.Any claim to declaratory relief regarding basin /s/ [Signature] boundaries has been determined by the Court by Order dated November 6, 2008. Tothe extent any current party was not a party at the time of Hon. Jack Komar the determination of this issue, that party may seek to reopen or, consistent with the order, Judge of the Superior Court move to amend the basin boundary.

Chase Nielson User Name: Chase Nielson Date and Time: 06 Jul 2016 2:53 p.m. MDT Job Number: 34384109

Document(1)

1. In re Adjudication of Existing and Reserved Rights of Chippewa Cree Tribe, 2002 Mont. Water LEXIS 1 Client/Matter: -None- Search Terms: 2002 Mont. Water LEXIS 1 Search Type: Natural Language

In re Adjudication of Existing and Reserved Rights of Chippewa Cree Tribe The Water Court of the State of Montana June 12, 2002, Decided ; June 12, 2002, Filed CASE NO. WC-2000-01

Reporter 2002 Mont. Water LEXIS 1; 2002 ML 4232 IN THE MATTER OF THE ADJUDICATION OF cause" to challenge the compact under Mont. Code EXISTING AND RESERVED RIGHTS TO THE USE Ann. § 85-2-233 because their interests could have OF WATER, BOTH SURFACE AND UNDERGROUND, potentially been affected. Two objectors were removed OF THE CHIPPEWA CREE TRIBE OF THE ROCKY from the case due to issues arising under Mont. R. Civ. BOY'S RESERVATION WITHIN THE STATE OF P. 36. The water court rejected the contention that the MONTANA Indian tribe could not have water rights due to the fact that the federal government held title the reservation Core Terms land in trust. Moreover, the language of the compact was clear in describing what lands were involved. The Reservation, Tribe, Compact, water rights, Parties, subordination of priorities during periods of water Objector, Settling, negotiations, Tribal, settlement, shortages, the scope and extent of the tribal water right, irrigation, River, summary judgment, water user, Ranch, and the importation of water were fair and reasonable to decree, discovery request, discovery, partial summary all the parties. judgment, set forth, drainage, purposes, off-Reservation, Memorandum, measurable, rights, Outcome treaty, Basin, genuine issue of material fact, ratified The motions for summary judgment and partial summary judgment were granted. The compact was Case Summary approved. LexisNexis® Headnotes Procedural Posture The State and the Indian tribe filed a motion for summary judgment in an action seeking approval of a compact Governments > Native Americans > Water Rights relating to the establishment of water rights. Several Real Property Law > Water Rights > Water Dispute objections to the compact were filed. The State and the Procedures Indian tribe also moved for partial summary judgment, which sought the dismissal of the claim of one objector. HN1 In adjudicating federal or Indian reserved water rights, the Montana Water Court must apply federal law. Overview The State and the Indian tribe reached an agreement Civil Procedure > Judgments > Entry of Judgments > Consent Decrees regarding water rights and entered into a compact, which was codified at Mont. Code Ann. § 85-20-601. In Governments > Native Americans > Water Rights granting summary judgment, the water court held that Real Property Law > Water Rights > Water Dispute the compact entered into under Mont. Code Ann. § Procedures 85-2-702 was similar to a consent decree, so only a limited review was permitted. First, the compact was in HN2 A compact negotiated, ratified, and approved conformance with the law allowing for the reservation of pursuant to the authority and procedures set forth in Indian water rights, which prevailed over junior Mont. Code Ann. § 85-2-702 is closely analogous to a state-based rights. Next, the objectors showed "good consent decree, in that it represents a voluntary,

Chase Nielson Page 2 of 31 2002 Mont. Water LEXIS 1, *1 negotiated settlement between parties that is subject to HN5 While the review of consent decrees is intended to continued judicial policing. be limited, it requires more than automatic incorporation of the proposed compact into a decree. The court's Civil Procedure > Judgments > Entry of Judgments > ultimate determination will necessarily involve a Consent Decrees balancing of several factors which may include, among Civil Procedure >Appeals > Standards of Review > General others, some or all of the following: the strength of Overview plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class HN3 In reviewing a consent decree, a court must be action status throughout the trial; the amount offered in satisfied that the settlement is at least fundamentally settlement; the extent of discovery completed, and the fair, adequate and reasonable, and because it is a form stage of the proceedings; the experience and views of of judgment, a consent decree must conform to counsel; the presence of a governmental participant; applicable laws. The review and resulting decree is not and the reaction of the class members to the proposed a decision on the merits or the achievement of the settlement. This is by no means an exhaustive list of optimal outcome for all parties, nor must it impose all relevant considerations, nor have courts attempted to the obligations authorized by law. Rather, it is a limited identify the most significant factors. The relative degree review, the extent and limitations of which have been of importance to be attached to any particular factor will described by the United States Court of Appeals for the depend upon and be dictated by the nature of the Ninth Circuit. claims advanced, the types of relief sought, and the unique facts and circumstances presented by each Civil Procedure > Judgments > Entry of Judgments > individual case. Consent Decrees Civil Procedure >Appeals > Standards of Review > General Civil Procedure > ... > Justiciability > Standing > General Overview Overview Civil Procedure > Judgments > Entry of Judgments > HN4 In the context of a consent decree, a court's Consent Decrees intrusion upon what is otherwise a private consensual Civil Procedure >Appeals > Standards of Review > General agreement negotiated between the parties to a lawsuit Overview must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the HN6 The purpose of a limited kind of judicial review for product of fraud or overreaching by, or collusion between consent decrees is not to ensure that the settlement is the negotiating parties, and that the settlement, taken fair or reasonable between the negotiating parties, but as a whole, is fair, reasonable and adequate to all that it is fair and reasonable to those parties and the concerned. Therefore, the settlement or fairness hearing public interest who were not represented in the is not to be turned into a trial or rehearsal for trial on the negotiation, but have interests that could be materially merits. Neither the trial court nor an appellate court is to injured by operation of the compact. Where an objector reach any ultimate conclusions on the contested issues can establish standing, i.e. "good cause," to object to of fact and law which underlie the merits of the dispute, the compact, the responsibility of the court to protect for it is the very uncertainty of outcome in litigation and those interests is heightened, and the court's level of avoidance of wasteful and expensive litigation that inquiry should be commensurate with the potential induce consensual settlements. The proposed degree of injury. settlement is not to be judged against a hypothetical or speculative measure of what might have been achieved Governments > Native Americans > Water Rights by the negotiators. Ultimately, the district court's HN7 The United States Supreme Court has repeatedly determination is nothing more than an amalgam of found that Indian reserved water rights prevail over delicate balancing, gross approximations and rough junior state-based rights in the same water source even justice. when the settlers have made substantial investments in the land and water, developed entire communities, and Civil Procedure > Judgments > Entry of Judgments > generated substantial employment in reliance upon Consent Decrees federal homestead and state water laws. Civil Procedure >Appeals > Standards of Review > General Overview Governments > Federal Government > Property

Chase Nielson Page 3 of 31 2002 Mont. Water LEXIS 1, *1

Real Property Law > Water Rights > General Overview "government-to-government" basis, without representing the interests of any single water user. HN8 When the federal government withdraws its land from the public domain and reserves it for a federal Governments > State & Territorial Governments > purpose, the government, by implication, reserves Legislatures appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In Governments > State & Territorial Governments > Property > Water Rights so doing the United States acquires a reserved right in unappropriated water which vests on the date of the HN12 The Montana Legislature possesses all the reservation and is superior to the rights of future powers of lawmaking inherent in any independent appropriators. In determining whether there is a federally sovereign and is limited only by the United States and reserved water right implicit in a federal reservation of Montana Constitutions. As long as the State acts within public land, the issue is whether the government the parameters of the United States and Montana intended to reserve unappropriated and thus available Constitutions, Montana has broad authority over the water. Intent is inferred if the previously unappropriated administration, control and regulation of the water within waters are necessary to accomplish the purposes for its boundaries. Accordingly, if Montana negotiates, which the reservation was created. approves, and ratifies a compact that grants more water to a reserved water right entity than that entity might Governments > Native Americans > Water Rights have obtained under strict adherence to the "limits" of Governments > State & Territorial Governments > the reserved water right doctrine through litigation and Property > Water Rights does so without injuring other existing water users, the State is effectively allocating and distributing surplus HN9 The Montana Supreme Court has distinguished state waters to resolve a dispute. In the absence of between state-based water rights and Indian reserved material injury to existing water users, the merits of water rights and held that state-created water rights are such public policy decisions is for the Montana defined and governed by state law and Indian reserved Legislature to decide, not the Montana Water Court. water rights are created or recognized by federal treaty, federal statutes or executive order, and are governed Governments > Native Americans > Water Rights by federal law. HN13 Chippewa Cree Tribe-Montana Compact art. III, Governments > Courts > Creation & Organization codified at Mont. Code Ann. § 85-20-601, quantifies the tribal water right as 20,000 acre-feet of water per year, Real Property Law > Water Rights > Water Dispute allocated in amounts by basin and drainage. To facilitate Procedures implementation of the tribal water right, and to minimize HN10 In the absence of controlling federal authority, the or mitigate the adverse affect of increased tribal water Montana Water Court has been instructed to follow the use on the environment and on downstream directives of the Montana Supreme Court. off-reservation water users, the tribe agreed to limitations on new total depletions in water-short Governments > Native Americans > Water Rights drainages.

Real Property Law > Water Rights > Water Dispute Civil Procedure > Judgments > Entry of Judgments > Procedures Consent Decrees HN11 The Montana Reserved Water Rights Compact Evidence > ... > Presumptions > Particular Presumptions > Commission is charged by the Montana legislature to Regularity negotiate compacts for the equitable division and Evidence > Burdens of Proof > General Overview apportionment of waters between the state and its people and the several Indian tribes claiming reserved HN14 The Montana Water Court has adopted the rule water rights within the state, the terms of which are employed by the United States Court of Appeals for the ultimately included in the preliminary and final basin Ninth Circuit in reviewing consent decrees, which is that decrees pursuant to Montana law. Mont. Code Ann. §§ once the court is satisfied that the settlement was the 85-2-701(1), 85-2-702. In this process, the Commission product of good faith, arms-length negotiations, a negotiates with the Tribes on a negotiated settlement, is presumptively valid, and the

Chase Nielson Page 4 of 31 2002 Mont. Water LEXIS 1, *1 objecting party has a heavy burden of demonstrating Civil Procedure > ... > Methods of Discovery > Requests that the settlement is unreasonable. This presumption for Admissions > Effect of Admissions is particularly appropriate where government actors Civil Procedure > Judgments > Summary Judgment > committed to the protection of the public interest have Evidentiary Considerations pulled the laboring oar in constructing the proposed settlement. HN20 Admissions obtained pursuant to Mont. R. Civ. P. 36 may be used to establish that there are no genuine Civil Procedure > ... > Justiciability > Standing > General issues of material fact in a motion for summary Overview judgment. Real Property Law > Water Rights > Water Dispute Procedures Civil Procedure > ... > Methods of Discovery > Requests for Admissions > Withdrawal of Admissions HN15 See Mont. Code Ann. § 85-2-233. HN21 Mont. R. Civ. P. 36(b) authorizes a court to permit Civil Procedure > ... > Justiciability > Standing > General withdrawal or amendment when the presentation of the Overview merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the Real Property Law > Water Rights > Water Dispute Procedures court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. HN16 Montana Supreme Court Water Right Claim Examination Rule 1.II(7) defines "good cause shown" Civil Procedure > Discovery & Disclosure > General as a written statement showing that one has a Overview substantial reason for objecting, which means that the Civil Procedure > Sanctions > General Overview party has a property interest in land or water, or its use, that has been affected by the decree and that the HN22 Since 1981, the Montana Supreme Court has objection is made in good faith, is not arbitrary, irrational, endorsed a strict policy that dilatory discovery actions unreasonable or irrelevant in respect to the party should not be dealt with leniently. When litigants use objecting. willful delay, evasive responses, and disregard of court direction as part and parcel of their trial strategy, they Real Property Law > Water Rights > Water Dispute must suffer the consequences. Where it is determined Procedures that counsel or a party has acted willfully or in bad faith in failing to comply with rules of discovery or with court HN17 The Montana Water Court has traditionally orders enforcing the rules or in flagrant disregard of practiced a "broad tent" policy with respect to objections those rules or order, it is within the discretion of the trial to compacts. That is to say that while objections must court to dismiss the action or to render judgment by not be arbitrary, irrational, unreasonable, or irrelevant, default against the party responsible for the default. only a minimal claim or interest in land or water that Litigants who are willful in halting the discovery process could feasibly be adversely affected by a compact is act in opposition to the authority of the court and cause sufficient to bring an objector within the "good cause" impermissible prejudice to their opponents. standard to object to the compact. This policy is appropriate with compacts because the court is Civil Procedure > ... > Eligibility for Sanctions > Parties ultimately required to review and approve or disapprove Subject to Sanction > Self Represented Litigants them, even without the filing of a single objection. Civil Procedure > Discovery & Disclosure > General Overview Civil Procedure > ... > Methods of Discovery > Requests for Admissions > Effect of Admissions HN23 The Montana Supreme Court's policy on dilatory HN18 See Mont. R. Civ. P. 36(a). discovery has been applied to pro se litigants, as well as those represented by counsel. While courts predisposed Civil Procedure > ... > Methods of Discovery > Requests to give pro se litigants considerable latitude in for Admissions > Effect of Admissions proceedings, that latitude cannot be so wide as to prejudice the other party. To do so makes a mockery of HN19 See Mont. R. Civ. P. 36(b). the judicial system and denies other litigants access to

Chase Nielson Page 5 of 31 2002 Mont. Water LEXIS 1, *1 the judicial process. It is reasonable to expect all Governments > Native Americans > Water Rights litigants, including those acting pro se, to adhere to the HN30 Federal courts have recognized Indian reserved procedural rules. But flexibility cannot give way to abuse. water rights for Indian reservations even when the The Montana Supreme Court stands firm in our Indians had no rights which they might reserve, and expectation that the lower courts hold all parties litigant none to surrender in exchange for those now claimed to procedural standards which do not result in prejudice for them. Aboriginal title is material only when an Indian to either party. tribe is claiming Indian reserved water rights, from time immemorial. Governments > Native Americans > Water Rights Governments > Native Americans > General Overview HN24 See Federal Settlement Act, Pub. L. 106-163, § 101(b)(3), 113 Stat. 1782. HN31 Recognition by the United States Department of the Interior has traditionally been a prerequisite to the Governments > Native Americans > Water Rights protection, services, and benefits of the federal government available to Indian tribes by virtue of their HN25 The Federal SettlementAct , Pub. L. No. 106-163, status as tribes. 25 C.F.R. 83.2. Acknowledgment of § 2(2), 113 Stat. 1782, expressly finds that the Rocky tribal existence has meant "that the tribe is entitled to Boy's Reservation was established as a homeland for the immunities and privileges available to other federally the Chippewa Cree Tribe, and § 2(3) of the Act finds that acknowledged Indian tribes by virtue of their adequate water for the Chippewa Cree Tribe of the government-to-government relationship with the United Rocky Boy's Reservation is important to a permanent, States as well as the responsibilities, powers, limitations, sustainable, and sovereign homeland for the Tribe and and obligations of such tribes. 25 C.F.R. 83.2. its members. Governments > NativeAmericans >Authority & Jurisdiction Governments > Native Americans > Water Rights HN32 See 25 U.S.C.S. § 479(a). HN26 The United States is not the owner of Indian reserved rights. It is a trustee for the benefit of the Governments > NativeAmericans >Authority & Jurisdiction Indians. Its powers regarding Indian water rights are constrained by its fiduciary duty to the tribes and HN33 The federal judiciary has deferred to such allottees, who are the beneficiaries of the land that the executive and legislative determinations of tribal United States holds in trust. Indian reserved water recognition. Although this deference was originally rights are "owned" by the Indians. grounded in the executive's exclusive power to govern relations with foreign governments, federal courts have Governments > NativeAmericans >Authority & Jurisdiction found that broad congressional power over Indian affairs justifies its continuation. States are traditionally bound HN27 25 U.S.C.S. § 71 reversed the policy of making by a similar doctrine of deference to federal agency treaties with the Indians. Thereafter, Congress subjected recognition of Indian tribes. Indian tribes to the direct legislation of Congress. Governments > Native Americans > Water Rights Governments > Native Americans > Water Rights HN34 The priority date of Indian reserved water rights is HN28 The Montana Supreme Court has acknowledged the date the Indian reservation was created by treaty, that Indian reserved water rights may be created or act of Congress, or executive order. recognized by federal treaty, federal statute or executive order. Governments > State & Territorial Governments > Property > Water Rights Governments > Native Americans > Water Rights HN35 During times of shortage, water rights in Montana HN29 An intention to reserve water rights to Indians are normally enforced by priority date, with first in time need be evidenced by treaty or agreement. A statute or being first in right. Mont. Code Ann. § 85-2-401. an executive order setting apart the reservation may be equally indicative of the intent. Governments > Native Americans > Water Rights

Chase Nielson Page 6 of 31 2002 Mont. Water LEXIS 1, *1

HN36 The measure of an Indian reserved water right is precedent on many of the issues which are given a governed by the amount of water necessary to fulfill the broad brush in its compact review. purposes of the reservation. Quantifying this open-ended standard as been difficult at best, and after Civil Procedure > ... > Summary Judgment > Entitlement nearly one hundred years of legislation, litigation and as Matter of Law > General Overview policy-making, there are still no clear or consistent HN40 In applying the standard under Mont. R. Civ. P. bright lines. Because the purposes of each reservation 56, all reasonable inferences are viewed in the light differ, federal courts have devised several general most favorable to the party opposing summary quantification standards. While there is no exclusive or judgment. However, the opposing facts must be of a universal standard, federal courts have been clear that substantial and material nature. Speculation and Indian reserved water rights must include sufficient conclusory statements are not sufficient to raise a water for the future as well as present needs of the genuine issue of material fact. Absent affirmative reservation. evidence to defeat the motion, the motion is properly granted. Governments > Native Americans > Water Rights

HN37 The only feasible and fair way by which reserved Civil Procedure > Sanctions > General Overview water for agricultural reservations can be measured is HN41 Aparty displaying an attitude of unresponsiveness by "practicably irrigable acreage" which is defined as to the judicial process warrants the imposition of enough water to irrigate all the practicably irrigable sanctions, including dismissal. acreage on the reservations, not merely that amount which is sufficient to satisfy the Indians' reasonably Civil Procedure > ... > Summary Judgment > Entitlement foreseeable needs. This method involves a complex, as Matter of Law > General Overview cost-benefit analysis which weighs the arability and engineering practicability of growing crops on particular Civil Procedure > ... > Summary Judgment > Motions for land with the economics of such irrigation. Summary Judgment > Timing of Motions & Responses HN42 See Mont. R. Civ. P. 56(c). Governments > Native Americans > Water Rights

Real Property Law > Water Rights > Water Dispute Civil Procedure > ... > Summary Judgment > Burdens of Procedures Proof > Movant Persuasion & Proof

HN38 The Montana Water Use Act, as amended, Civil Procedure > ... > Summary Judgment > Burdens of recognizes that a reserved right may exist without a Proof > Nonmovant Persuasion & Proof present use. Mont. Code Ann. § 85-2-224(3) permits a Civil Procedure > ... > Summary Judgment > Entitlement statement of claim for rights reserved under the laws of as Matter of Law > General Overview the United States which have not yet been put to use. The Act permits Indian reserved rights to be decreed HN43 In the context of summary judgment, once the without a current use. moving party has sufficiently demonstrated the absence of any genuine material fact issues, the burden shifts to Real Property Law > Water Rights > Water Dispute the non-moving party to demonstrate the existence of Procedures material fact issues rendering summary judgment improper. HN39 In the absence of clear federal authority prohibiting compact provisions and in the absence of Civil Procedure > ... > Summary Judgment > Hearings > demonstrated injury to objectors by these provisions, General Overview compacting parties are within their authority to craft Civil Procedure > ... > Summary Judgment > Opposing creative solutions to resolve difficult problems caused Materials > Memoranda in Opposition by ambiguous standards. if other parties claiming and negotiating reserved water rights proceed to litigation HN44 Failure to file an answer brief to an adverse before the Montana Water Court on the merits of those motion is considered an admission that the motion is rights and thus forsake the compacting alternative, the well taken. Mont. Unif. Dist. Ct. R. 2(b). However, in the court will draw hard lines and resolve ambiguous legal case of summary judgment, Mont. R. Civ. P. 56(c)

Chase Nielson Page 7 of 31 2002 Mont. Water LEXIS 1, *1 contemplates that the party opposing the motion may Judges: [*1] C. Bruce Loble, Chief Water Judge. serve opposing affidavits raising a genuine material fact issue up until the day prior to hearing. Thus, the general Opinion by: C. Bruce Loble rule is that where the motion is one for summary judgment, the essential question for the court is whether Opinion a genuine issue of material fact exists, and this question cannot be decided on a mere technical fact, such as the UPPER AND LOWER MISSOURI RIVER DIVISIONS failure to file briefs on time. Because a factual issue may be raised by opposing affidavits served the day prior to ROCKY BOY'S COMPACT SUBBASIN the time set for hearing, the general rule is that unless the right to a hearing on a Rule 56 motion is specifically MEMORANDUMOPINIONCHIPPEWACREE waived by all parties, either the movant or the adverse TRIBE-MONTANA COMPACT PROCEDURAL parties are entitled to a hearing in the ordinary case. HISTORY Simply failing to file briefs on time does not amount to a specific waiver of the right to a hearing under Cole. In January 1997, the State of Montana and the Chippewa Cree Tribe of the Rocky Boy's Indian Civil Procedure > ... > Summary Judgment > Hearings > Reservation reached an agreement in accordance with General Overview § 85-2-702, MCA. After five years of research, analysis, revisions, meetings and negotiations, the Chippewa HN45 There are exceptions to the hearing requirement Cree Tribe-Montana Compact ("the Compact") was under Cole. Unless the right to a hearing on a Mont. R. ratified by the Tribe on February 21, 1997; approved by Civ. P. 56 motion is specifically waived by all parties the Montana State Legislature on April 10, 1997; signed (and not waived simply by the failure to file briefs) either by the Governor of Montana and the Chippewa Cree the movant or the adverse parties are entitled to a Tribal Chairman on April 14, 1997, making it the third hearing under Rule 56 in the ordinary case. There may such "government-to-government" compact to be be an occasion when under the law and the facts completed between an Indian Tribe and the State of adduced, the movant would be so clearly entitled as a Montana. The Compact is codified at Mont. Code Ann. matter of law to a summary judgment that a district court § 85-20-601. might by order dispense with the necessity of a hearing. The federal Act ratifying the Compact, "the Chippewa Civil Procedure > ... > Methods of Discovery > Requests Cree Tribe of the Rocky Boy's Reservation Indian for Admissions > Effect of Admissions Reserved Water Rights Settlement and Water Supply Civil Procedure > ... > Summary Judgment > Hearings > Enhancement Act of 1999," ("Federal Settlement Act") General Overview was passed by both houses of Congress [*2] and signed by the President on December 9, 1999. P.L. HN46 A grant of summary judgment without a hearing 106-163, 113 Stat. 1778 (1999). based on material facts deemed admitted under Mont. R. Civ. P. 36 and coupled with a complete failure of a On February 15, 2000, pursuant to Section 101(b)(1) of party to otherwise participate in the judicial proceedings the Federal Settlement Act, the State of Montana, the is a proper exception to the hearing requirement of Chippewa Cree Tribe, and the United States of America Cole. ("Settling Parties") jointly filed in this Court a Motion for Incorporation of Rocky Boy's Compact into Preliminary Civil Procedure > ... > Methods of Discovery > Requests and Final Decrees and for a consolidated Hearing on for Admissions > Responses to Requests for Admissions Any Objections to Such Compact. On April 27, 2000, the Court entered its Findings of Fact, Conclusions of Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Law, Order for Commencement of Special Proceedings for Consideration of the Rocky Boy's Compact and HN47 A party has no absolute right to file late answers thereby granted the motion. On April 27, 2000, the to requests for admissions. The matter rests within the Montana Department of Natural Resources and discretion of the trial court, and the court's decision will Conservation ("DNRC") mailed a Notice of Availability not be disturbed in the absence of a manifest abuse of and the Summary Description of Water Right to discretion. Mont. R. Civ. P. 36. approximately 3,750 water users in all of the basins

Chase Nielson Page 8 of 31 2002 Mont. Water LEXIS 1, *2 comprising the Rocky Boy's Compact Subbasin in JURISDICTION accordance with § 85-2-233, MCA, which included Big Sandy Creek (Basin 40H), Milk River (Basin 40J), The Montana Water Court has jurisdiction to [*5] review Marias River (Basin 41P), and Willow Creek (Basin the Chippewa Cree Tribe-Montana Compact under the 41N), collectively referred to as the Special Rocky Boy's authority granted by the McCarran Amendment of 1952 Compact Subbasin. Objections were required [*3] to be (43 U.S.C. § 666); authority granted in §§ 85-2-231, filed by October 24, 2000. 85-2-233 and 234, 85-2-701 and 702, MCA; and Section B of Article VII of the Chippewa Cree Tribe-Montana Seventeen objections to the Rocky Boy Compact were Compact. See also Arizona v. San Carlos Apache Tribe, filed. Eight Objections were subsequently withdrawn. 463 U.S. 545, 564, 103 S. Ct. 3201, 77 L. Ed. 2d 837 On December 4, 2001, the Court granted the Settling (1983), and State ex rel. Greely v. Confederated Salish Parties' motion to dismiss Eric Fjelde on the grounds & Kootenai Tribes ("Greely II"), 219 Mont. 76, 89, 712 that Mr. Fjelde did not file an objection in this case. On P.2d 754 (1985). HN1 In adjudicating federal or Indian January 25, 2002, the Court ordered the dismissal of reserved water rights, this Court must apply federal law. the objection of Hjortur Hjartarson, dba H & J Quarter, San Carlos Apache, 463 U.S. at 567; Colorado River Inc. Water Conservation District v. United States, 424 U.S. On February 1, 2002, the Settling Parties moved the 800, 812-813, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976); Court for summary judgment (1) to approve the Greely II, 219 Mont. at 89, 95, 712 P.2d 754. Chippewa Cree Tribe-Montana Compact pursuant to §§ 85-2-234 and 85-2-702(3), MCA and 43 U.S.C. § 666, STANDARD OF REVIEW andArt. VII(B) of the Compact; and (2) to grant summary This Court previously concluded in its August 10, 2001 judgment in favor of the Settling Parties dismissing the Memorandum and Order Approving Fort Peck-Montana remaining seven objections. On the same date, the Compact (Fort Peck Memorandum) that HN2 a compact Settling Parties also filed a Motion in Limine . . . negotiated, ratified, and approved pursuant to the Concerning Evidence to be Brought Before the Court. authority and procedures set forth in § 85-2-702, MCA, Answer and reply briefs were filed. is closely analogous [*6] to a consent decree, in that it On April 18, 2002, the Montana Water Court held a represents a voluntary, negotiated settlement between pre-hearing conference and a hearing on the motions at parties that is subject to continued judicial policing. See the Chouteau County Courthouse, in Fort Benton, e.g., United States v. Oregon, 913 F.2d 576, 580 (9th Montana. Present were Lyle K. [*4] Ophus; Sam J. Bitz, Cir. Ore.1990), cert. denied sub nom. Makah Indian dba Rocky Crossing Ranch Co.; Lisa Swan Semansky, Tribe v. United States, 501 U.S. 1250, 111 S. Ct. 2889, representing Bitz, dba Rocky Crossing Ranch Co., and 115 L. Ed. 2d 1054 (1991). The following description of for purposes of the hearing, Keith H. Rhodes; Candace consent decrees by the United States Supreme Court West, Ass't Attorney General for the State of Montana; illustrates the similarities: Susan Schneider, Attorney for the United States Consent decrees are entered into by parties to a case Department of Justice, and Richard Aldrich, Field after careful negotiation has produced agreement on Solicitor, representing the United States; Yvonne T. their precise terms. The parties waive their right to Knight, attorney for the Native American Rights Fund, litigate the issues involved in the case and thus save and Daniel D. Belcourt, attorney for the Chippewa Cree themselves the time, expense, and inevitable risk of Tribe, both representing the Tribe; and Faye Bergan, litigation. Naturally, the agreement reached normally attorney for the Montana Reserved Water Rights embodies a compromise; in exchange for the saving of Compact Commission. Affidavits were filed, testimony cost and elimination of risk, the parties each give up and evidence was taken, and oral arguments on the something they might have won had they proceeded pre-hearing motions were heard. The Court dismissed with litigation. . . . The parties have purposes, generally the request of Mr. Bitz, dba Rocky Crossing Ranch Co., opposed to each other, and the resultant decree to withdraw or amend admissions deemed pursuant to embodies as much of those opposing purposes as the Rule 36, M.R.Civ.P., for his failure to respond to respective parties have the bargaining power and skill discovery requests. The matter was fully submitted. to achieve. On May 22, 2002, the Court entered its Order Approving Compact for reasons that would be set forth in a future United States v. Armour & Co., 402 U.S. at 681-82, 91 memorandum. This is that future memorandum. S. Ct. 1752, 29 L. Ed. 2d 256

Chase Nielson Page 9 of 31 2002 Mont. Water LEXIS 1, *7

[*7] Essentially, HN3 in reviewing a consent decree, "a and the reaction of the class members to the proposed . . . court must be satisfied that [the settlement] is at settlement. (Citations omitted) This is by no means an least fundamentally fair, adequate and reasonable, [and] exhaustive list of relevant considerations, nor have we because it is a form of judgment, a consent decree must attempted to identify the most significant factors. The conform to applicable laws." State of Oregon, 913 F.2d relative degree of importance to be attached to any at 580. The review and resulting decree is not a "decision particular factor will depend upon and be dictated by the on the merits or the achievement of the optimal outcome nature of the claims advanced, the types of relief sought, for all parties," nor must it "impose all the obligations and the unique facts and circumstances presented by authorized by law." Id. at 580, 581. Rather, it is a limited each individual case. review, the extent and limitations of which have been described by the Ninth Circuit Court as follows: 688 F.2d at 625.

HN4 The court's intrusion upon what is otherwise a HN6 The purpose of this kind of judicial review is not to private consensual agreement negotiated between the ensure that the settlement is fair or reasonable between parties to a lawsuit must be limited to the extent the negotiating parties, but that it is fair and reasonable necessary to reach a reasoned judgment that the to those parties and the public interest who were not agreement is not the product of fraud or overreaching represented in the negotiation, but have interests that by, or collusion between the negotiating parties, and could be materially injured by operation of the compact. that the settlement, taken as a whole, is fair, reasonable State of Oregon, 913 F.2d at 581. [*10] Where an and adequate to all concerned. Therefore, the objector can establish standing, i.e. "good cause," to settlement or fairness hearing is not to be turned into a object to the compact, the responsibility of the Court to trial or rehearsal for trial on the merits. Neither the trial protect those interests is heightened, and the Court's court [*8] nor this court is to reach any ultimate level of inquiry should be commensurate with the conclusions on the contested issues of fact and law potential degree of injury. Id., and Fort Peck which underlie the merits of the dispute, for it is the very Memorandum pp. 7-8. uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual ISSUES PRESENTED settlements. The proposed settlement is not to be judged I. The Compact: against a hypothetical or speculative measure of what might have been achieved by the negotiators. (Citations Whether the Compact is in conformance with applicable omitted) Ultimately, the district court's determination is law, and whether the settlement, taken as a whole, is nothing more than 'an amalgam of delicate balancing, fair, reasonable and adequate to all concerned? II. The gross approximations and rough justice.' Objections: Whether the Objectors have established Officers for Justice v. Civil Service Comm'n, 688 F.2d "good cause" to object, and whether any of the 615, 625 (9th Cir. Cal. 1982), cert denied, Byrd v. Civil objections invalidate the Compact? III. Summary Service Commission, 459 U.S. 1217, 103 S. Ct. 1219, Judgment: Whether there are any genuine issues of 75 L. Ed. 2d 456 (1983). material fact, and whether the Settling Parties are entitled to summary judgment as a matter of law? HN5 While the review is intended to be limited, it requires DISCUSSION I. Winters Doctrine of Indian Reserved more than automatic incorporation of the proposed Water Rights compact into a decree. As the Ninth Circuit Court further explained in Officers for Justice: The . . . court's ultimate Indian reserved water rights were first recognized by determination will necessarily involve a balancing of the United States Supreme Court in Winters v. United several factors which may include, among others, some States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 or all of the following: the strength of plaintiffs' case; [*9] (1908), where it held that the 1888 Treaty creating the the risk, expense, complexity, and likely duration of Fort Belknap Indian Reservation in Montana reserved further litigation; the risk of maintaining class action not only land, but impliedly reserved sufficient [*11] status throughout the trial; the amount offered in water to accomplish the purposes of the treaty settlement; the extent of discovery completed, and the agreement. 207 U.S. at 577. Recognizing that the "lands stage of the proceedings; the experience and views of were arid, and, without irrigation, were practically counsel; the presence of a governmental participant; valueless," the Court concluded that Congress, by

Chase Nielson Page 10 of 31 2002 Mont. Water LEXIS 1, *11 creating the Indian reservation, impliedly reserved all of 426 U.S. at 138-139. the waters of the river necessary for the purposes for which the reservation was created. Id. The Court held: Indian Reserved Water Rights in the Montana General Stream Adjudication The power of the Government to reserve the waters [of the Milk River] and exempt them from appropriation In 1979, the Montana Legislature passed Senate Bill 76 under the state laws is not denied, and could not be. to expressly recognize Indian reserved water rights and The United States v. The Rio Grande Ditch & Irrigation incorporate them into the state-wide general Co., 174 U.S. 690, 702, 19 S. Ct. 770, 43 L. Ed. 1136 ; adjudication. State ex rel. Greely v. Water Court United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 ("Greely I"), 214 Mont. 143, 146, 691 P.2d 833 (1985). L. Ed. 1089. That the Government did reserve them we In Greely II, HN9 the Montana Supreme Court have decided, and for a use which would be necessarily distinguished between state-based water rights and continued through years. This was done May 1, 1888 Indian reserved water rights and held that "state-created [treaty date], and it would be extreme to believe that water rights are defined and governed by state law" and within a year Congress destroyed the reservation and . "Indian reserved water rights are created or recognized . . took from [the Indians] the means of continuing their by federal treaty, federal statutes or executive order, old habits, yet did not leave them the power to change and are governed by federal law." 219 Mont. at 89. to new ones. Id. HN10 In the absence [*14] of controlling federal Despite the Fjelde family's objections and argument to authority, the Water Court has been instructed to follow the [*12] contrary, HN7 the United States Supreme the directives of the Montana Supreme Court. Greely II, Court has repeatedly found that Indian reserved water 219 Mont. at 99-100, 712 P.2d 754. rights prevail over junior state-based rights in the same water source even when the settlers have made To expedite and facilitate the difficult process of substantial investments in the land and water, developed comprehensively and finally determining Indian entire communities, and generated substantial reserved water rights in Montana, the legislature created employment in reliance upon federal homestead and a nine-member Montana Reserved Water Rights state water laws. See e.g., Winters, 207 U.S. at 569-570; Compact Commission. Section 2-15-212, MCA. HN11 Cappaert v. United States, 426 U.S. 128, 138-139, 96 The Commission is charged by the Montana legislature S. Ct. 2062, 48 L. Ed. 2d 523 (1976); United States v. to negotiate "compacts for the equitable division and Walker River Irrigation Dist., 104 F.2d 334, 339 (9th Cir. apportionment of waters between the state and its Nev. 1939). people and the several Indian tribes claiming reserved water rights within the state," the terms of which are In Cappaert, a more contemporary United States ultimately included in the preliminary and final basin Supreme Court decision, the Court summarized the decrees pursuant to Montana law. §§ 85-2-701(1) and federal reserved water rights doctrine as follows: 85-2-702, MCA In this process, the Commission negotiates with the Tribes on a This Court has long held that HN8 when the Federal "government-to-government" basis, without Government withdraws its land from the public domain representing the interests of any single water user. and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then HN12 The Montana Legislature possesses all the unappropriated to the extent needed to accomplish the powers of lawmaking inherent in any independent purpose of the reservation. In so doing the United sovereign and is limited only by the United States and States acquires a reserved right in unappropriated water [*15] Montana Constitutions. See e.g., Hilger v. Moore, which vests on the date of the reservation and is superior 56 Mont. 146, 163, 182 P. 477, 479 (1919), and State ex [*13] to the rights of future appropriators. * * * In rel. Evans v. Stewart, 53 Mont. 18, 20, 161 P. 309 determining whether there is a federally reserved water (1916). As long as the State acts within the parameters right implicit in a federal reservation of public land, the of the United States and Montana Constitutions, issue is whether the Government intended to reserve Montana has broad authority over the administration, unappropriated and thus available water. Intent is control and regulation of the water within its boundaries. inferred if the previously unappropriated waters are Accordingly, if Montana negotiates, approves, and necessary to accomplish the purposes for which the ratifies a compact that grants more water to a reserved reservation was created. water right entity than that entity might have obtained

Chase Nielson Page 11 of 31 2002 Mont. Water LEXIS 1, *15 under strict adherence to the "limits" of the Reserved by serving a written request to negotiate on the Water Right Doctrine through litigation and does so governing body of the Tribe.Affidavit of Chris D. Tweeten without injuring other existing water users, the State is ("Tweeten Aff."); See § 85-2-702(1), MCA. Active effectively allocating and distributing surplus state negotiations began in 1992 and involved the Compact waters to resolve a dispute. See analysis in Fort Peck Commission (representing the State of Montana), the Memorandum at 13-15, incorporated herein by Chippewa Cree Tribe, and the United States as trustee reference. In the absence of material injury to existing for the Tribe. The parties formed three teams of official, water users, the merits of such public policy decisions is legal, and technical advisors to conduct the negotiations: for the legislature to decide, not the Montana Water the Commission's Rocky Boy's negotiating team, the Court. Tribal Negotiating Committee, and the Federal Negotiation Team. The Chippewa Cree Tribe and the Therefore, in the absence of clear federal authority United States agreed to open all negotiations [*18] to prohibiting the various Compact provisions and in the the public, and the Commission published and mailed absence of demonstrated [*16] injury to Objectors by notice to interested individuals one to two weeks prior to these provisions, compacting parties are within their each negotiating session. Over the course of the authority to craft creative solutions to resolve difficult negotiations, public meetings in the area were held on problems caused by ambiguous standards. This October 29, 1992, June 23, 1993, July 19, 1993, Compact is a product of that creative negotiation November 4, 1993, April 18, 1994, February 27, 1995, process. March 21, 1995, June 21, 1995, and January 30, 1997. Preliminary Review of the Chippewa Cree Cosens, 16 UCLA J. Envt'l L. & Pol'y at 274-275; Tribe-Montana Compact Introduction Commission Technical Report at 18. The Rocky's Boy Reservation is located in north central In January of 1997, the State and the Chippewa Cree Montana, with portions of the Reservation extending Tribe of the Rocky Boy's Indian Reservation reached an onto the plains between the Bearpaw Mountains and agreement in accordance with § 85-2-702, MCA. the Milk River to the north. The Reservation serves as Commission Technical Report at 15. Chris Tweeten, the permanent homeland for over 3,000 Tribal members, Chairman of the Compact Commission and member of with an annual population growth rate in excess of three the Commission's negotiating team, described the percent. Unemployment on the Reservation is process as follows: traditionally high, and many live below the poverty line. Although historically the Tribe has been economically The Compact negotiations were based on 10-15 years dependent on agriculture and ranching, the potential of work by legal and technical professionals with arable land base is small, its historically irrigated land expertise in water resources and related fields. The even smaller, and its water supply scarce. Big Sandy Compact is a result of 5 years of intensive good-faith Creek and Beaver Creek, the two major tributary negotiations between well-represented parties with drainages on the Reservation, both flow through a dissimilar interests on some important issues. There checkerboard of private and Reservation land before was extensive public involvement, including numerous leaving the Reservation, making the administration of [*19] public meetings, information sessions and private and Tribal water [*17] rights difficult. Water individual meetings with water users. Many ideas that storage and developed wells are minimal, and the were eventually incorporated into the terms of the Reservation's existing domestic water supply and Compact were originally proposed by water users. The distribution system seriously inadequate. Providing Compact has been ratified by the State, the Tribe, and water sufficient to make the Reservation a Congress. State monies promised under the Compact self-sustaining permanent homeland for the Chippewa to fund mitigation measures and provide contract water, Cree Tribe, both now and in the future, while protecting have been paid out. Construction of mitigation measures the environment and existing water users, was clearly a paid for by the State are complete and contract water challenge of monumental proportions. purchase options are paid for and in place.

Summary of the Compact Tweeten Aff. at 5. In 1979, the Reserved Water Rights Compact HN13 Article III of the Chippewa Cree Tribe-Montana Commission commenced negotiations for this Compact Compact, codified at § 85-20-601, MCA, quantifies the

Chase Nielson Page 12 of 31 2002 Mont. Water LEXIS 1, *19

Tribal Water Right as 20,000 AFY, allocated in amounts (8) recognizing that final resolution of the general stream by basin and drainage. To facilitate implementation of adjudication will take many years and entail great the Tribal Water Right, and to minimize or mitigate the expense to all parties, prolong uncertainty as to the adverse affect of increased Tribal water use on the availability of water supplies, and seriously impair the environment and on downstream off-reservation water long-term economic planning and development of all users, the Tribe agreed to limitations on new total parties, the Chippewa [*22] Cree Tribe and the State of depletions in water-short drainages. Montana entered into the Compact on April 14, 1997; and (9) the allocation of water resources from the Tiber In accord with the requirements of § 85-2-702, MCA, Reservoir to the Chippewa Cree Tribe under this Act is the Compact was ratified by the Tribe, approved by the uniquely suited to the geographic, social, and economic Montana State Legislature, [*20] and signed by the characteristics of the area and situation involved. Governor of Montana and the Chippewa Cree Tribal 113 Stat. 1779, December 9, 1999. Chairman on April 14, 1997. Id. After jointly drafting the Federal Settlement Act with the State and the Tribe, the Preliminary Conclusion United States Department of the Interior joined the There is no evidence in the record that the Chippewa State and the Tribe in supporting the Federal legislation Cree Tribe-Montana Compact is the product of fraud or in Congressional hearings. Memorandum in Support of overreaching by, or collusion between, the negotiating Settling Parties' Motion for Compact Approval and parties. The Court finds that each party to the negotiation Summary Judgment, p. 15, n. 2. The Compact was organized its own "negotiation team" bristling with eventually "approved, ratified, and confirmed" by private and government legal and technical advisors Congress on December 9, 1999. Federal Settlement experienced in the fields of soils, hydrology, agricultural Act, Section 101, Pub. L. 106-163, 113 Stat. 1782.In engineering, fish and wildlife, statistics, computer confirming the Compact, Congress specifically found modeling, economics, and law. The information and that: technical data necessary to conduct the negotiation (1) in fulfillment of its trust responsibility to Indian tribes was collected by all three teams and exchanged openly and to promote tribal sovereignty and economic between the parties and the public. Commission self-sufficiency, it is the policy of the United States to meetings and negotiation sessions were publicized and settle the water rights claims of the tribes without lengthy open to the public, with opportunities for public questions and costly litigation; (2) the Rocky Boy's Reservation and comment. In addition, the Compact Commission was established as a homeland for the Chippewa Cree conducted meetings [*23] with individual off-Reservation Tribe; (3) adequate water for the Chippewa Cree Tribe water users, who participated in crafting mitigation of the Rocky Boy's Reservation is important to a measures to protect their interests. permanent, sustainable, and sovereign homeland for The possibility of collusion or over-reaching by or the Tribe and its members; (4) the sovereignty [*21] of between the parties was also foreclosed by the the Chippewa Cree Tribe and the economy of the competing interests and goals involved. The inherently Reservation depend on the development of the water adversarial nature of the negotiations became apparent resources of the Reservation; (5) the planning, design, when the State of Montana rejected the Tribe's first and construction of the facilities needed to utilize water settlement proposal, because it required the transfer of supplies effectively are necessary to the development all State lands within the 1939 "greater purchase area" of a viable Reservation economy and to implementation to the Tribes, and called for large and expensive dams of the Chippewa Cree-Montana Water Rights Compact; on most drainages arising on the Reservation -- both of (6) the Rocky Boy's Reservation is located in a which could have had serious impact on downstream water-short area of Montana and it is appropriate that off-Reservation water users. The final Tribal proposal theAct provide funding for the development of additional approved by the State addressed not only the present water supplies, including domestic water, to meet the and future needs of the Tribe, but more effectively needs of the Chippewa Cree Tribe; (7) proceedings to reduced the adverse impact of increased Tribal water determine the full extent of the water rights of the use and storage on the environment and the Chippewa Cree Tribe are currently pending before the downstream off-Reservation interests. Montana Water Court as a part of In the Matter of the Adjudication of All Rights to the Use of Water, Both HN14 This Court has adopted the rule employed by the Surface and Underground, within the State of Montana; Ninth Circuit Court in reviewing consent decrees, which

Chase Nielson Page 13 of 31 2002 Mont. Water LEXIS 1, *23 is that "once the court is satisfied that the [settlement] Arlene Frelk, the Verna F. Waddell Trust, Karl Fjelde, was the product of good faith, arms-length negotiations, and Martha Fjelde Ondrejko filed objections and a negotiated [settlement], [*24] is presumptively valid, requested the Court to invalidate the Compact and and the objecting party has a 'heavy burden' of dismiss the Tribal Water [*26] Right claim. demonstrating that the [settlement] is unreasonable." See e.g., State of Oregon, 913 F.2d at 581. The Court The standing to object to a claim in the state-wide finds this presumption particularly appropriate where, adjudication process in Montana is established by as here government actors committed to the protection Montana statute and Supreme Court rule. Section 85- of the public interest have "pulled the laboring oar in 2-233, MCA, provides that: HN15 (1) For good cause constructing the proposed settlement." United States v. shown a hearing shall be held before the water judge on Cannons Engineering Corp., 899 F.2d 79, 84 (1st Cir. any objection to a temporary preliminary decree or Mass. 1990). See also, Davis, 890 F.2d 1438 at 1445; preliminary decree by . . . (iii) any person within the Randolph, 736 F.2d 525 at 529; and Officers for Justice, basin entitled to receive notice under 85-2-232(1). . ." 688 F.2d at 625. HN16 Rule 1.II(7) of the Montana Supreme Court Water For these reasons, the Court finds there is no genuine Right Claim Examination Rules defines "good cause issue of material fact with respect to the legality of the shown" as: manner in which this Compact was negotiated, approved and ratified by the Settling Parties, and that . . . a written statement showing that one has a the Settling Parties are entitled to summary judgment substantial reason for objecting, which means that the that the Compact was the product of good faith and party has a property interest in land or water, or its use, arms length negotiation and in compliance with that has been affected by the decree and that the applicable law. The Compact, taken as a whole, is objection is made in good faith, is not arbitrary, irrational, therefore presumptively fair, reasonable and adequate unreasonable or irrelevant in respect to the party to all concerned. objecting. (Emphasis added) HN17 The Montana Water Court has traditionally II. The Objections & Heightened [*25] Review practiced a "broad tent" policy with respect to objections A. Standing of the Objectors 1. Objectors Lyle and to compacts. That is to say that while objections must Barbara Ophus - Keith Rhodes - Calvin and Arlene not be "arbitrary, irrational, unreasonable, or irrelevant," Frelk, the Verna F. Waddell Trust, Karl Fjelde, and only a minimal claim or [*27] interest in land or water Martha Fjelde Ondrejko. that could feasibly be adversely affected by a compact is sufficient to bring an objector within the "good cause" On April 27, 2000, the Montana Water Court ordered standard to object to the compact. This policy is the Commencement of Special Proceedings for appropriate with compacts because the Court is Consideration of the Rocky Boy's Compact and issued ultimately required to review and approve or disapprove a Notice of Entry of Rocky Boy's Compact Preliminary them, even without the filing of a single objection. Decree and Notice of Availability notifying the public that: The Settling Parties do not dispute that the remaining Objectors all own an interest in land or water within the . . . all affected parties are required to state any Big Sandy, Beaver Creek or Milk River drainages. They objections that they may have to the [Rocky Boy's] do, however, challenge the remoteness and degree of Compact. Your water usage may be affected by the any potential harm to those interests and the [Rocky Boy's] Compact. If you do not agree with the reasonableness of the objections. There is no question Tribal Water Right recognized in the Compact, you may that the potential harm to some of the Objectors is so file an objection and request a hearing and the Water remote that, in retrospect, it may be stretching the Court will hear your objection. * * * All objections must "broad tent" policy too far. But, in the interest of resolving be received by the Montana Water Court . . . on or all potential disputes that could arise, this Court finds before October 24, 2000. that the land and water interests owned or claimed by the Objectors (with the exception of Sam J. Bitz) could Sam J. and Rose M. Bitz, dba Rocky Crossing Ranch feasibly be adversely impacted by exercise of the Tribal Co., Lyle and Barbara Ophus, Keith Rhodes, Calvin and Water Right, and, therefore, the Objectors meet the

Chase Nielson Page 14 of 31 2002 Mont. Water LEXIS 1, *27

"good cause" standard as applied by this Court. The of Order on Motion for Partial Summary Judgement and Objectors have standing to file [*28] their objections. Dismissal of Objections; and Request for Continuance, together with a supporting brief. [*30] Mr. Bitz argued 2. Sam J. Bitz that the extenuating circumstances in his personal life and the "interrelated complexity" of the discovery On June 1, 2001, the Settling Parties served joint requests with other title issues involving mineral discovery requests, including interrogatories, requests interests related to the Bitz property required a six for production of documents and requests for month continuance. admissions on Sam J. Bitz and Rose M. Bitz, dba Rock Crossing Ranch. The Settling Parties later granted Mr. On December 4, 2001, the Court issued its Scheduling Bitz and other Objectors additional time, eventually until Order on Request for Continuance, which set a briefing September 1, 2001, to respond. schedule and required oral argument on the Bitz request. In its Order, the Court noted that the time On August 13, 2001, the Court conducted a telephonic involved in resolving the Request for Continuance would status conference with representatives of the Settling operate as a de facto continuance for Mr. Bitz and Parties and some of the Objectors, including Mr. Bitz, further noted that the Court had a limited time frame wherein the Court reviewed with the parties the Water under the federal Act ratifying the Compact to approve Court Rules and Procedures, discovery procedures the Compact. and applicable discovery deadlines, and how to On January 14, 2002, the Court heard oral argument on establish and use the primary contact attorney for the the Request for Continuance. The Court concluded that Settling Parties. The Court also granted Mr. Bitz and Mr. Bitz' request for the six month continuance of all other Objectors an additional extension of 13 days (until further proceedings was too long given the time September 14, 2001) to respond to the discovery constraints imposed by the Federal Settlement Act. As requests. Id. The Court's August 14, 2001 Scheduling Mr. Bitz had obtained the services of an attorney, the Order expressly informed the parties that: Court elected to proceed without any further continuances. Failure to comply with the terms of this Order may result in sanctions, up to and including entry of default and . . On January 22, 2002, the Settling Parties, with respect . . the dismissal of objections thereto. [*29] Any request to Sam Bitz, withdrew their Motion for Partial Summary for a continuance must be made before the scheduled Judgment, [*31] and proposed a stipulated briefing and deadlines, in accordance with Uniform District Court hearing schedule. On January 25, 2002, the Court rules 2 and 3, and must include a showing a good issued its Unified Briefing Schedule and scheduled a cause. hearing on all pre-hearing motions for April 18, 2002 in Fort Benton, Montana. Id. (Emphasis in original). Mr. Bitz failed to meet the On February 1, 2002, the Settling Parties moved the September 14, 2001 deadline and thereby did not Court for summary judgment to approve the Compact comply with the Court's Order. On September 28, 2001, and dismiss the objections. With respect to Mr. Bitz, the Settling Parties filed a Motion for Partial Summary they contended that by repeatedly refusing to respond Judgment in which they requested the Court to enter to the discovery requests, including Requests for partial summary judgment dismissing the objections of Admission Nos. 3, 10, 11, 12, 15 and 16, Mr. Bitz was the following Objectors: Hjortur Hjartarson, dba H&J deemed by law to have admitted that his land and water Quarters, Inc., and Sam J. and Rose M. Bitz, as interests "have not and will not be affected by the . . . individuals and dba Rocky Crossing Ranch. The Motion Tribal Water Right recognized in the Compact," that was based on the failure of these Objectors to respond there are no genuine issues of material fact with respect to the discovery requests propounded by the Settling to his objections, and that -- vis-a-vis the Bitz objections Parties. On November 20, 2001, this Court served -- the Settling Parties were entitled to a judgment notice that it anticipated entering its order granting or approving the Compact as a matter of law. denying the Settling Parties' motion on December 3, 2001. Rule 36(a), M.R.Civ.P., provides in part that:

On December 3, 2001, Sam J. Bitz, dba Rocky Crossing HN18 The matter is admitted unless, within 30 days Ranch Co., by fax, filed an Objection of Motion for Entry after service of the request, or within such shorter or

Chase Nielson Page 15 of 31 2002 Mont. Water LEXIS 1, *31 longer time as the court may allow. . . ., the party to While we are predisposed to give pro se litigants whom the request is directed serves upon the party considerable latitude in proceedings, that latitude cannot requesting the admission [*32] a written answer or be so wide as to prejudice the other party. . . . To do so objection addressed to the matter, signed by the party makes a mockery of the judicial system and denies or by the party's attorney. other litigants access to the judicial process. It is reasonable to expect all litigants, including those acting See also Exhibit 13, General Instructions B-D, Discovery pro se, to adhere to the procedural rules. But flexibility served June 1, 2001 on Mr. Bitz. Rule 36(b), M.R.Civ.P. cannot give way to abuse. We stand firm in our states that HN19 "any matter admitted under this rule is expectation that the lower courts hold all parties litigant conclusively established unless the court on motion to procedural standards which do not result in prejudice permits withdrawal or amendment of the admission." to either party. HN20 Admissions obtained pursuant to Rule 36 may be used to establish that there are no genuine issues of Id. See also Federal Land Bank v. Heidema, 224 Mont. material fact in a motion for summary judgment. Garrett 64, 67-68, 727 P.2d 1336 (1986). v. PACCAR Financial Corp., 245 Mont. 379, 381, 801 P.2d 605 (1990); Holmes & Turner v. Steer-In, 222 The Federal Settlement Act ratifying and approving the Mont. 282, 721 P.2d 1276 (1986); Morast v. Auble, 164 Chippewa Cree Tribe-Montana Compact expressly Mont. 100, 105, 519 P.2d 157 (1974). provided that:

HN21 Rule 36(b), M.R.Civ.P., also authorizes a court to: HN24 In the event the approval by the appropriate . . . permit withdrawal or amendment when the court, including any direct appeal, does not become presentation of the merits of the action will be subserved final within 3 years after the filing of the decree . . . the thereby and the party who obtained the admission fails approval, ratification, and confirmation of the Compact to satisfy the court that withdrawal or amendment will by the United States shall be null and void . . . . prejudice that party in maintaining the action or defense on the merits. Federal Settlement Act, Section 101(b)(3). (Emphasis added) The Settling Parties and the Court, therefore, However, this Court notes that HN22 since 1981, the [*35] have been working within a strict time frame, a Montana Supreme [*33] Court has endorsed a strict fact that was made clear to Mr. Bitz. policy that dilatory discovery actions should not be dealt with leniently. Morris v. Big Sky Thoroughbred Farms, While the Court sympathizes with Mr. Bitz on the loss of Inc., 1998 MT 229, 291 Mont. 32, 36, 965 P.2d 890 his wife and does not wish to trivialize his bereavement, (1998); McKenzie v. Scheeler, 285 Mont. 500 at 506. In Mr. Bitz failed to respond to discovery requests after First Bank (N.A.), Billings v. Heidema, the Court several extensions of time. Mr. Bitz was extended emphasized that: considerable latitude. To grant further latitude would When litigants use willful delay, evasive responses, and have prejudiced the Settling Parties' effort to have the disregard of court direction as part and parcel of their Compact judicially reviewed within the Congressionally trial strategy, they must suffer the consequences. . . . mandated three year deadline. In accordance with the Where it is determined that counsel or a party has acted Rule 36(a), M.R.Civ.P. admissions, the objections of willfully or in bad faith in failing to comply with rules of Sam Bitz, dba Rocky Crossing Ranch Co. are denied discovery or with court orders enforcing the rules or in and dismissed. flagrant disregard of those rules or order, it is within the discretion of the trial court to dismiss the action or to B. Standing of the Chippewa Cree Tribe to Compact render judgment by default against the party responsible for the default. . . . Litigants who are willful in halting the The Objectors contend that the Chippewa Cree Tribe discovery process act in opposition to the authority of lacks legal standing to claim the Tribal Water Right set the court and cause impermissible prejudice to their forth in the Compact, because the Tribe has not been opponents. . . . federally recognized by treaty as an autonomous, self-governing body, and because the Reservation is 219 Mont. 373, 376, 711 P.2d 1384 (1986). HN23 This neither the ancestral nor permanent home of the Tribe, policy has been applied to pro se litigants, as well as or even owned by the Tribe. As Mr. Ophus asserted, "It those represented [*34] by counsel: is a fact you need land to have a water right."

Chase Nielson Page 16 of 31 2002 Mont. Water LEXIS 1, *35

In 1908, the Sixtieth Congress authorized the Secretary The fact that the [*38] federal government owns legal [*36] of the Interior to: title to the Reservation in trust for the Tribe does not diminish the Tribe's standing to claim the Tribal Water . . . expend not to exceed thirty thousand dollars for the Right. The Montana Supreme Court has directed this purpose of settling Chief Rocky Boy's band of Chippewa Court that: Indians, now residing in Montana, upon public lands, if available, in the judgment of the Secretary of the Interior, HN26 The United States is not the owner of Indian or upon some suitable existing Indian reservation in reserved rights. It is a trustee for the benefit of the said State, and to this end he is authorized to negotiate Indians. Its powers regarding Indian water rights are and conclude an agreement with any Indian tribe in said constrained by its fiduciary duty to the tribes and State, or, in his discretion, to purchase suitable tracts of allottees, who are the beneficiaries of the land that the lands, water and water rights, in said State of Montana United States holds in trust. Indian reserved water rights are "owned" by the Indians. ....

Chapter 153, Session 1, Sixtieth Congress, Session 1 Greely II, 219 Mont. at 97, 712 P.2d 754. (1908). (Emphasis added) On February 11, 1915, Objector Ophus also appears to argue that Winters' Congress authorized the Secretary of the Interior to reserved water rights apply only to Indian reservations survey Fort Assiniboine for disposal and to identify the created by treaty before March 3, 1871. The Act of coal, timber and agricultural lands suitable for disposal November 10, 1888, Revised Statutes at 2079, as and settlement or reservation. Act of February 11, 1915, amended by HN27 25 U.S.C.S. 71, reversed the policy 38 Stat. 807. of making treaties with the Indians. Thereafter, Congress In 1916, upon petition of the leaders of the Chippewa subjected Indian tribes to the direct legislation of Congress. Thus, the Rocky Boy's Reservation was and Cree Tribes, Congress amended the Act of 1915 to created by legislation, not by treaty. This fact does not "set apart [56,035 acres of land] as a reservation for diminish the Tribe's claim to reserved water rights. Rocky Boy's Band of Chippewa and such other HN28 The Montana Supreme Court has acknowledged homeless Indians in the State of Montana as the [*39] that Indian reserved water rights may be created Secretary of the Interior may see fit to locate [*37] or recognized by federal treaty, federal statute or thereon. . . ." Act of September 7, 1916, 39 Stat. 739. executive order. Greely II, 219 Mont. at 89, 712 P.2d Senate records confirm that the amendatory Act was 754. In Arizona v. United States, the United States "approved by the President" in Document No. 14135, Supreme Court rejected the State ofArizona's argument Pub. L. No. 261. that the water rights in that case were not reserved The Objectors argue that modification of the phrase merely because the Reservation was created (or "permanent reservation" to "reservation" during the 1916 expanded) by Executive Order, rather than treaty. 373 Congressional amendment process is significant in U.S. 546, 598, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963). determining the validity of the Rocky Boy's Reservation. Similarly, in Walker River Irr. Dist., the Ninth Circuit However the subsequent actions of Congress and the Court of Appeals concluded that: Department of the Interior over the next eighty years We see no reason to believe that HN29 the intention to clearly evidence the federal government's intention to reserve need be evidenced by treaty or agreement. A create a reservation and homeland for the Chippewa statute or an executive order setting apart the Cree Tribe. See Commission Technical Report at 13-14 reservation may be equally indicative of the intent. and Cosens, 16 UCLA J. Envt'l L. & Pol'y at 267-271 for While in the Winters case the court emphasized the a more indepth review of those subsequent actions. treaty, there was in fact no express reservation of water HN25 Section 2(2) of the Federal Settlement Act to be found in that document. The intention had to be expressly finds that "the Rocky Boy's Reservation was arrived at by taking account of the circumstances, the established as a homeland for the Chippewa Cree situation and needs of the Indians and the purpose for Tribe," and Section 2(3) of the Act finds that "adequate which the lands had been reserved. water for the Chippewa Cree Tribe of the Rocky Boy's 104 F.2d at 336. Reservation is important to a permanent, sustainable, and sovereign homeland for the Tribe and its members." The fact that the Chippewa Cree Tribe is not indigenous (Emphasis added) to the Reservation is also immaterial [*40] to its standing

Chase Nielson Page 17 of 31 2002 Mont. Water LEXIS 1, *40 in this case. The removal of Indian tribes from their HN32 (2) . . . the United States has a trust responsibility ancestral homes for relocation on "reservations" is well to recognized Indian tribes, maintains a documented in the annals of history and the courts. See government-to-government relationship with those e.g., Act of June 5, 1850, 9 Stat. 437; Appropriation Act tribes, and recognizes the sovereignty of those tribes; of March 3, 1853, 10 Stat. 226; Quinault Allottee Ass'n v. (3) Indian tribes presently may be recognized by Act of United States, 202 Ct. Cl. 625, 485 F.2d 1391, 1392- Congress; by the administrative procedures set forth in 1393 (USCC, 1973), cert denied, 416 U.S. 961, 40 L. part 83 of the Code of Federal Regulations denominated Ed. 2d 312, 94 S. Ct. 1980 (1974); Morton v. Mancari, "Procedures for Establishing that an American Indian 417 U.S. 535, 552, 94 S. Ct. 2474, 41 L. Ed. 2d 290 Group Exists as an Indian Tribe;" or by a decision of a (1974); Getches, Rosenfelt, & Wilkinson, Federal Indian United States court; (4) a tribe which has been recognized in one of these manners may not be Law 52-61 (1979 ed.); and Felix S. Cohen's Handbook terminated except by an Act of Congress; (5) Congress of Federal Indian Law 770 (1982 ed.). HN30 Federal has expressly repudiated the policy of terminating courts have recognized Indian reserved water rights for recognized Indian tribes, and has actively sought to Indian reservations even when the Indians "had no restore recognition to tribes that previously have [*43] rights which they might reserve, and none to surrender been terminated. . . . in exchange for those now claimed for them." See e.g., Walker River Irrigation District, 104 F.2d at 337. P.L. 103-454, Title I, § 103, 25 U.S.C.S. 479(a). Aboriginal title is material only when an Indian tribe is (Emphasis added.) claiming Indian reserved water rights, "from time immemorial," which the Chippewa Cree Tribe have not The Court takes judicial notice that the Chippewa Cree Tribe of the Rocky Boy's Reservation has been included claimed in this Compact. See e.g., United States v. on the lists published pursuant to Part 83 of the Code of Adair, 723 F.2d 1394, 1414 (9th Cir. Ore. 1984); [*41] Federal Regulations and Public Law 103-45 at least United States v. Klamath Indians, 304 U.S. 119, 122- since July 8, 1981 ( 46 FR 35360), including the list 123, 58 S. Ct. 799, 82 L. Ed. 1219, 86 Ct. Cl. 769 (1938). published on March 10, 2000 ( 65 FR 13298). That Any difficulty courts may have encountered in period included the years during which this Compact determining whether a tribe was federally recognized was negotiated and ratified by the Tribe, the State of was substantially reduced in 1978 when Congress Montana, and the Congress of the United States. authorized the Executive Branch to prescribe Consequently, publication (i.e. formal federal regulations for making that determination and ordered a recognition) was not "ex post facto to the compact," as list of "federally recognized" tribes to be published in the asserted by Mr. Ophus. Federal Register no less than every three years. See 25 C.F.R. Part 83; 25 U.S.C.S. 1a, 2; Cherokee Nation of Historically, HN33 the federal judiciary has deferred to Oklahoma v. Babbitt, 326 U.S. App. D.C. 139, 117 F.3d such executive and legislative determinations of tribal 1489, 1498 (D.D.C. 1997); Western Shoshone Busi- recognition. Cherokee Nation, 117 F.3d at 1496; West- ness Council v. Babbitt, 1 F.3d 1052, 1056-1057 (10th ern Shoshone, 1 F.3d at 1058; United Tribe of Shawnee Cir. Utah 1993). HN31 Recognition by the Department Indians v. United States, 253 F.3d 543, 549-550 (10th of the Interior has traditionally been "a prerequisite to Cir. Colo. 2001); and United States v. Holliday, 70 U.S. the protection, services, and benefits of the Federal 407, 419, 18 L. Ed. 182 (1866)("In reference to all [*44] government available to Indian tribes by virtue of their [federal recognition] matters of this kind, it is the rule of status as tribes. 25 C.F.R. 83.2. Acknowledgment of this court to follow the action of the executive and other tribal existence has meant "that the tribe is entitled to political departments of the government . . . . If by them the immunities and privileges available to other federally those Indians are recognized as a tribe, this court must acknowledged Indian tribes by virtue of their do the same."). Although this deference was originally government-to-government [*42] relationship with the grounded in the executive's exclusive power to govern United States as well as the responsibilities, powers, relations with foreign governments, federal courts have limitations, and obligations of such tribes." 25 C.F.R. found that broad congressional power over Indian affairs 83.2; and Cherokee Nation, 117 F.3d at 1498; Western justifies its continuation. Western Shoshone, 1 F.3d at Shoshone, 1 F.3d at 1057. (Emphasis added) 1057. States are traditionally bound by a similar doctrine On November 2, 1994, Congress passed the Federally of deference to federal agency recognition of Indian Recognized Indian Tribe List Act of 1994, which tribes. In re Kansas Indians, 72 U.S. 737, 18 L. Ed. 667 expressly stated that: (1866).

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Accordingly, this Court finds that for purposes of 156,000 acre area, described as a "greater purchase reviewing this Compact and adjudicating the Tribal area,"and added it to the Reservation. An Act to Add Water Right, inclusion of the Chippewa Cree Tribe of Certain Public Domain Land in Montana to the Rocky the Rocky Boy's Reservation on the Department of the Boy Indian Reservation, Pub. L. No. 13, 53 Stat. 552 Interior's List of Federally Recognized Tribes is (1939). Senate Report 105 which accompanied the bill dispositive on the issue of federal recognition. If the stated that purchase of additional acreage within [*47] Objectors wish to challenge such federal recognition, the greater purchase area would depend upon future they must take their case to the United States Congress. appropriations and purchases. United States Senate, Without substantive evidence to the contrary, [*45] the Committee on Indian Affairs, 76th Cong., 1st Sess., Court finds that there is no genuine issue of material February 24, 1939. fact with respect to this issue, and that the Settling Parties are entitled to judgment as a matter of law that On May 21, 1974, Congress declared that: the Chippewa Cree Tribe has sufficient standing to claim the Tribal Water Right set forth in the Compact. . . . all right, title, and interest of the United States in minerals, including coal, oil and gas, underlying lands C. The Rocky Boy's Reservation Boundaries held in trust by the United States for the Chippewa and The Objectors have also challenged the size and Cree Indians of the Rocky Boy's Reservation and lands boundaries of the Reservation as described in public located within the legal subdivision described in the Act meetings during the negotiation process and in the of March 24, 1939 (53 Stat. 552), are hereby . . . to be Compact. The Compact defines the "Reservation" as held by the United States in trust for the Chippewa Cree "the Rocky Boy's reservation and includes all lands and Tribe of the Rocky Boy's Reservation, Montana. . . . interests in lands which are held in trust by the United States for the Chippewa Cree Tribe, including future "An Act to Declare Certain Mineral Interests are Held by additions to the Reservation." Compact, Article III(42). the United States in Trust for the Chippewa Cree Tribe The Reservation boundaries, however, like its of the Rocky Boy's Reservation, Montana," Public Law population and needs, have changed over time and will 93-285, 88 Stat. 142 (1974). This transfer to the Tribe continue to change in ways not entirely predictable or included only the mineral estate and not the surface within the control of the State or the Tribe. estate in the land. The pre-1934 Congressional actions involving the Although the 1939 Act merely withdrew public domain Rocky Boy's Reservation are set forth in the land and added it to the Reservation, the boundaries of Commission Technical Report at pages 11 through 13 the greater purchase area were described in the Tribal and in Cosens, 16 UCLA J. Envtl. L. & Pol'y at 268-271. Constitution as the Reservation Boundary, which was Those actions need not [*46] be detailed here. [*48] approved by the Secretary of the Interior. The apparent conflict between the Tribal Constitution In 1938, pursuant to the Indian Reorganization Act of Reservation Boundary description, which was depicted 1934, the Bureau of Indian Affairs purchased on some of the maps used during the negotiation approximately 35,500 acres of land from private process, and the boundaries of the actual properties landholders to add to the Rocky Boy's Reservation. owned by the United States in trust for the Tribe, caused Senate Report 105, 76th Cong., 1st Sess., February 24, significant concern for some of the Objectors who own 1939. The land was not added to the Reservation, land within the greater purchase area. however, until November 26, 1947, when the Assistant Secretary of the Interior signed a proclamation For purposes of this Compact review, however, the transferring the land to the Reservation after the Tribe Court finds there is no dispute with respect to the fact See agreed to enroll more landless Indians. Addition of that the greater purchase area described in the 1939 Certain Lands to Rocky Boy's Indian Reservation, Act, includes a significant amount of private land that Montana, Fed. Reg. Doc. 43-2629, Proclamation of the has never been purchased or added to the Reservation. Assistant Secretary of the Interior, November 26, 1947. The Chippewa Cree Tribe-Montana Compact is clear in See also Cosens, 16 UCLA J. Envtl. L. & Pol'y at 270, n. describing the Reservation as only those "lands and 92. interests in lands which are held in trust by the United In 1939, Congress withdrew all public domain land States for the Chippewa Cree Tribe, including future (approximately 2000 acres in scattered tracts) within a additions to the Reservation." Article II(42). Those lands

Chase Nielson Page 19 of 31 2002 Mont. Water LEXIS 1, *48 not yet transferred to the United States in trust for the being first in right. 85-2-401, MCA. The Compact Tribe are considered and referred to as "off-Reservation" provides that during times of shortage both Tribal and lands. Id. State-based water rights will be allocated in blocks of fixed amounts. In exchange for the mitigation provisions D. Priority Date and Block Allocations during Water set forth in the [*51] Compact, or separately agreed to in Shortages drainage stipulations, those claiming (and decreed) senior state-based water rights downstream from the Article III of the Compact establishes the [*49] priority Reservation may not assert priority over the Tribal Water date for the Tribal Water Right in most cases to be Right, so long as the Tribe is using water within its September 7, 1916, the date the Rocky Boy's quantified right. In return, the Tribe may not assert Reservation was created by Act of Congress. The only priority over those claiming (and decreed) state-based exceptions to this priority date are the private water water rights upstream from the Reservation with priority rights acquired by the Tribe in Box Elder Creek and dates before ratification of the Compact. Compact, those contributed by the United States in Lake Elwell. Article IV(A)(8). This block allocation provision was Under the Compact, both the Box Elder Creek and Lake negotiated to reduce the risk of priority enforcement for Elwell water rights become part of the Tribal Water both parties during times of water shortage and to Right, but the Box Elder water rights retain their original minimize the daily monitoring and enforcement of state-based priority date of September 10, 1888, and stream flows and allocations that would have been the Lake Elwell water rights retain the priority date required in the checkerboard jurisdiction of the "established for the source of supply." The Objectors Reservation and surrounding area. argue that lands purchased within the 1939 "greater None of the Objectors have water right claims, purchase area" should also have a priority date no later certificates or permits in drainages that could be than 1939, and that during times of shortage, "all should adversely affected by the subordination and block suffer in proportion." allocations set forth in the Compact. Keith Rhodes, Generally, HN34 the priority date of Indian reserved Calvin and Arlene Frelk, Verna F. Waddell Trust, Martha water rights is the date the Indian reservation was Fjelde Ondrejko, and Karl Fjelde have claims, permits, created by treaty, act of Congress, or executive order. or certificates that are on tributaries to the Milk River Arizona v. United States, 373 U.S. at 600, 83 S. Ct. miles downstream [*52] from the drainages on the 1468, 10 L. Ed. 2d 542; Winters, 207 U.S. at 577. Reservation. Lyle Ophus has six water right claims in Various tracts and interests in land were added to the the Big Sandy drainage both up and downstream from Rocky Boy's Reservation after the Act of September 7, points on the Reservation: three stockwater claims that 1916 and [*50] some of the acquired land had senior are junior to the Tribal Water Right, and three irrigation state-based water rights that passed to the Tribe as claims that are senior. Greiman Aff., Exhibit 2, and appurtenant to the land. The Settling Parties assert that Exhibits attached to Affidavit of Rita Nason ("Nason the State's agreement to the 1916 priority date for lands Aff."). According to the mutual subordination clause in acquired after 1934 was a quid pro quo for the Tribe's the Compact and Appendix 3 to the Compact, the Tribal agreement not to assert any of the senior state-based Water Right is subordinate to all of the six Ophus water rights appurtenant to the acquired lands. claims. Compact, Article IV(A)(8) and Appendix 3. For the reasons set forth above, the Court finds that During the course of negotiation, the Tribe asserted there is no genuine issue of disputed fact with respect to earlier priority dates of "time immemorial," 1874 (original the priority dates, and that the Settling Parties are Blackfeet ("and such other Indians as the President entitled to judgment as a matter of law that the priority may, from time to time, see fit to locate thereon") Treaty dates established by the Compact, and the agreement date), and 1880 (Fort Assiniboine Military Reservation). to subordinate priorities during periods of water shortage The State and the Tribe were able to agree on the 1916 as set forth in the Compact, are not necessarily contrary priority date primarily because of their related agreement to applicable law, and are fair, reasonable and adequate to subordinate priorities during periods of water to all concerned. shortage. E. Quantification of Tribal Water Right HN35 During times of shortage, water rights in Montana The Tribal Water Right is set forth in Article III of the are normally enforced by priority date, with first in time Compact. The Compact recognizes the right of [*53] the

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Tribe to 20,000 acre-feet of water per year (AFY) for land with the economics of such irrigation. See irrigation, stockwatering, domestic, commercial, Commission Technical Report at 20 and Appendices E industrial, and environmental purposes. The water is and F; Greiman Aff. at 3; and Billstein Aff. at 4-6. allocated from surface and groundwater sources in the Big Sandy Creek drainage (9,260 AFY), the Beaver In recent years, the PIA standard has been criticized as Creek drainage (740AFY), and from Lake Elwell (10,000 being overly complex, overgenerous at the expense of AFY), an off-Reservation reservoir in the Marias River state water users, and anachronistically assimilistic for basin. Though not clearly articulated, the Objectors modern times. This criticism resulted in a more stringent appear to question the "university text-book theories" application of the standard in Wyoming's Big Horn River used by the State and Tribe's technical advisors to System adjudication, and in the United States Supreme quantify the Tribal Water Right, and the feasibility and Court's per curiam decision affirming the application, impact of a proposed ten-acre irrigation project on Upper albeit by an evenly divided Court. In Gila River, the Big Sandy Creek. Arizona Supreme Court observed that while the PIA standard appears on its face to be an objective method Generally, HN36 the measure of an Indian reserved of determining water rights, "its flaws become apparent water right is governed by the amount of water on closer examination." 201 Ariz. 307, 35 P.3d 68 at 78. necessary to fulfill the purposes of the reservation. United States v. New Mexico, 438 U.S. 696, 700, 98 S. Despite its recent criticism, the PIA standard remains Ct. 3012, 57 L. Ed. 2d 1052 (1978); Cappaert, 426 U.S. the principal method of quantifying Indian reserved at 138; Arizona v. California, 373 U.S. at 600, 83 S. Ct. water rights for agricultural reservations and was used 1468, 10 L. Ed. 2d 542; Winters, 207 U.S. at 577; Adair, by the Settling Parties [*56] as a guideline in negotiating 723 F.2d at 1419; Greely II, 219 Mont. at 92, 712 P.2d the Tribal Water Right. Initially, the State and the Tribe 754; and Greely I, 214 Mont. at 159, 691 P.2d 833. differed substantially on the amount of the Tribal Water Right for the Rocky Boy's Reservation. The Tribe Quantifying [*54] this open-ended standard as been quantified its present and long-term water needs to be difficult at best, and after nearly one hundred years of in excess of 35,000 AFY, based on a PIA of 20,000 AFY legislation, litigation and policy-making, there are still for irrigation, and 15,000 AFY for non-irrigation no clear or consistent bright lines. Greely II, 219 Mont. purposes, such as stockwatering, domestic, municipal, at 92, 712 P.2d 754. Because the purposes of each commercial and industrial purposes. Billstein Aff. at 5-7. reservation differ, federal courts have devised several The State quantified the Tribe's reserved rights to be general quantification standards. Id. While there is no approximately 3,900 AFY, based on a "feasibly irrigable exclusive or universal standard, federal courts have lands" method of quantifying reserved water rights. See been clear that Indian reserved water rights must include Commission Technical Report at 19-20; Appendix F; sufficient water for the future as well as present needs and Tweeten Aff. at 3-4. of the reservation. Arizona v. California, 373 U.S. at 599-600, 83 S. Ct. 1468, 10 L. Ed. 2d 542; Winters, 207 An important objective of the Commission in negotiating U.S. at 577; and Greely II, 219 Mont. at 93, 97, 712 P.2d the Compact was to minimize, to the extent possible, 754. the impact that exercise of the reserved water right could have on off-Reservation water users. "From this Because the future population and needs of an Indian perspective, the negotiation of this Compact presented tribe can only be guessed, the Court in Arizona v. several difficult legal and factual problems." Tweeten California concluded that HN37 the only feasible and Aff. at 2. Both the State and the Tribe recognized that fair way by which reserved water for agricultural the Rocky Boy's Reservation is land and water poor -- a reservations can be measured is by "practicably irrigable fact not disputed by the Objectors and a [*57] fact acreage" ("PIA"), which the Court defined as "enough supported by the technical data gathered by the parties, water . . . to irrigate all the practicably irrigable acreage the legislative history of the Reservation, and the on the reservations," not merely that amount which is Federal Settlement Act ratifying the Compact. sufficient to satisfy the Indians' "reasonably [*55] foreseeable needs." Id. at 600-601, 83 S. Ct. 1468, 10 Ultimately, the parties agreed to the Tribal Water Right L. Ed. 2d 542. This method involves a complex, of 20,000 AFY, an amount equal to the Tribe's high-end cost-benefit analysis which weighs the arability and PIA calculation, and one which both parties agreed to engineering practicability of growing crops on particular be within the range of possible litigation outcomes if the

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Tribal Water Right were adjudicated in a court of law. diversion needs of 4 cfs. . . . The Tribes' 50 gpm Morsette Aff. at 5; Tweeten Aff. at 4. The State agreed to depletion 22 miles away will have no measurable affect the Tribe's numbers because fully one-half of the Tribal on any water right claimed by Mr. Ophus. Water Right is water imported from the Marias River drainage, and because the parties successfully Greiman Aff. at 4-5. negotiated mitigation measures to reduce the adverse impact on off-Reservation water users from increased Although Mr. Ophus disagrees with the Greiman Tribal water use. Id. analysis, he provided no probative evidence to support his disagreement. Significantly, during his testimony at Mr. Ophus challenges the Compact provisions allowing the April 18, 2002 Fort Benton hearing, Mr. Ophus for the future development of ten acres in the Upper Big acknowledged that his water spreading irrigation system Sandy Creek drainage. The fact that the proposed was downstream from the IX Ranch and that this ten-acre development has never been irrigated does upstream neighbor often diverts the entire flow of the not necessarily argue against application of the PIA water source and leaves Mr. Ophus with no return flow. standard. In Greely II, the Montana Supreme Court Mr. Ophus testified that the IX Ranch "has sucked up observed that: more water than they have a right to." This testimony supports Bill Greiman's findings that the IX Ranch [*60] HN38 The Water Use Act, as amended, recognizes that has a more substantial impact on Mr. Ophus's use of a reserved right may exist [*58] without a present use. water then the Tribe's use could ever have. At page 5 of Section 85-2-224(3), MCA, permits a 'statement of claim his Affidavit, Mr. Greiman stated: for rights reserved under the laws of the United States which have not yet been put to use.' The Act permits The IX Ranch has [a] decreed right for 3,000 acres of Indian reserved rights to be decreed without a current irrigation with a diversion right to 32 cfs above Mr. use. Ophus' diversion. The irrigation systems for Mr. Ophus and the IX Ranch are similar and so have similar water 219 Mont. at 94. Moreover, the development is expected timing needs. The only water available to Mr. Ophus is to have no measurable affect on the Ophus water spring flows in excess of the IX Ranch needs and IX rights. Bill Greiman, agricultural engineer on the staff of Ranch return flows. The IX Ranch net irrigation the Reserved Water Rights Compact Commission, requirement exceeds the average annual flow of the explained: system, so it is even more improbable that the Tribe's minimal water use could be deliverable to Mr. Ophus The 10 acres of new irrigation is limited to a maximum below the IX Ranch diversion. diversion of 100 gpm (0.2 cfs) and 45 acre-feet annually. Estimated irrigation requirements (SCS TR-21) for the Id. at 5. Since the Ophus water use is so heavily Tribe's high elevation (+4,000 ft) project is 16" for an influenced by his close neighbor, the IX Ranch, Mr. annual water depletion of 13 acre-feet. The remaining Ophus's disagreement with the Greiman analysis over water diverted returns to the stream in the late summer the Tribe's prospective 50 gpm depletion use of water season and could be a minor (although not measurable) over 22 miles away is too speculative and conclusionary benefit to stock water needs near the Reservation to be accepted. boundary. The average flow for the irrigation season at the reservation boundary upstream of Mr. Ophus' place For these reasons, the Court finds there are no genuine of use (USGS gage 06137400) is greater than 3,800 issues of material fact with respect to this issue, and acre-feet. Thus, the Tribe's maximum use would be 0.3 that the Settling Parties are entitled to judgment as a percent of the available flow [*59] and that impact is not matter of law that the scope [*61] and extent of the measurable. The Tribe's maximum diversion rate of 0.2 Tribal Water Right is fair, reasonable and adequate to cfs would equal a depletion rate of less than 0.1 cfs. The all concerned. Tribe's use is 22 stream miles up stream, 1000 feet higher, and impacts only 25% of the drainage basin F. Off-Reservation Importation of Water above Mr. Ophus' diversion. The usable flow rate for Mr. Ophus' system is approximately 4 cfs. There is no During the course of the negotiations, it became clear to measuring device available that can measure the Tribe's all the participants that the water supply on the 0.1 cfs (50 gpm) impact on Mr. Ophus' minimum reservation, including the existing domestic water

Chase Nielson Page 22 of 31 2002 Mont. Water LEXIS 1, *61 supply, was seriously inadequate for the present and stored water from the water right of the Bureau of future needs of the Reservation. It also became clear, Reclamation in Lake Elwell, Lower Marias Unit, Upper however, that exercise of the Tribal Water Right through Missouri Division, Pick-Sloan Missouri Basin Program, increased development, storage and use of Montana. . . . The allocation shall be part of the Tribal on-Reservation water supplies could materially damage Water Right and subject to the terms of this Act. the rights of existing water users within and downstream of the Big Sandy and Beaver Creek drainages.Anumber 113 Stat. 1789, Section 201. The importation of of solutions were proposed, which included: unallocated water from Lake Elwell will provide the Tribe with a safe and dependable drinking water supply 1. The Tribe's and Department of Interior's initial and substantially reduce the adverse affects that proposals to increase the available water supply by increased Tribal use and storage of water from significantly enlarging existing on-Reservation storage on-Reservation sources could have had on existing facilities and constructing new ones for storage from water users like the Objectors. See Commission on-Reservation water sources; 2. The Department of Technical Report at 39; Tweeten Aff. at 4; and Morsette Interior's proposal to retire irrigation lands on the Aff. at 5. Reservation and provide the Reservation with subsidized hay on an on-going basis; 3. The Department Congress certainly has the authority to allocate of Interior's proposal to purchase off-Reservation hay unallocated water from a Bureau [*64] of Reclamation land and [*62] water rights to replace retired Reservation reservoir. The fact that the Rocky Boy's Indian irrigation land; and 4. The Commission's proposal that Reservation is involved doesn't change that authority. the Tribe and members from off-Reservation communities in the area facing similar domestic water For these reasons, the Court finds there is no genuine supply problems form an Ad Hoc Committee to issue of material fact with respect to the importation of coordinate a feasibility study for a regional water system, water from Lake Elwell, and that the Settling Parties are whereby various off-reservation rural water and entitled to judgment as a matter of law that importation municipal systems could be combined with the Tribe's of 10,000 acre-feet of water from Lake Elwell (Tiber system to achieve safe drinking water; and 5. The Reservoir) for inclusion as part of the Tribal Water Right combined team of technical advisors' (Tribal, United is not contrary to applicable law, and is fair, reasonable, States, and State) proposal to transport 10,000 acre and adequate to all concerned. feet of excess water from Lake Elwell in the Marias River Basin to the Reservation to meet Tribal long-term CONCLUSION water needs and augment the Big Sandy water supply. The compacting process established by the Montana To resolve the stalemate, the United States agreed to legislature and confirmed by the Montana Supreme contribute 10,000 AFY to the Tribe from the unallocated Court has allowed the State and the Chippewa Cree portion of Lake Elwell, a Bureau of Reclamation Tribe to define and enforce its Indian reserved water reservoir constructed on the Marias River to provide right outside the strict confines of federal and state law irrigation water to a Lower Marias River irrigation project by negotiating and concluding a compact "for the that was never completed. The water is unallocated or equitable division and apportionment of waters between excess water in that rights to the water have not yet the state and its people and the several Indian tribes been sold or allocated for other use by the federal claiming reserved water rights within the state." Section government. 85-2-701, MCA Greely I, 214 Mont. at 147, 691 P.2d 833. (Emphasis added) The provisions of this Compact, The Federal Settlement Act ratifying [*63] the Compact and [*65] the process by which they were negotiated, found importation of the Tiber Reservoir (Lake Elwell) received the confirmation of Congress in the Federal water to be legal and "uniquely suited to the situation." Settlement Act, where Congress explicitly found that "it Federal Settlement Act, Section 2. Accordingly, is the policy of the United States to settle the water Congress enacted Title II of the Act (Tiber Reservoir rights claims of the tribes without lengthy and costly Allocation and Feasibility Studies Authorization), which litigation," and that its stated purpose in approving the expressly provided that: Compact was "to achieve a fair, equitable, and final The Secretary shall permanently allocate to the Tribe, settlement of all claims to water rights in the State of without cost to the Tribe, 10,000 acre-feet per year of Montana for . . . the Chippewa Cree Tribe; and (B) the

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United States for the benefit of the Chippewa Cree The Compact Commission and several Indian tribes Tribe." Federal Settlement Act, §§ 2(1), and 3(1). have had remarkable success in negotiating unique (Emphasis added) agreements to define the reserved water rights associated with the Fort Peck Reservation, the Northern The compacting alternative provided the Settling Parties Cheyenne Reservation, and now the Rocky Boy's Indian with the flexibility they needed to craft a settlement that Reservation. Every compact approved by this Court reflected the unique conditions on the Reservation and has been unique and specific to the history of the the changing needs of the Chippewa Cree Tribe. By reserved right and the resources available to the water involving both Reservation and off-Reservation water users in the area. The parties to these compacts users in the negotiation process, and by recognizing achieved results that were more tailored to their interests and respecting the interests and concerns of both, than they ever could have achieved through litigation. together with significant contributions by the United The equitable division and apportionment of waters States and the State of Montana, the Settling Parties reflected in these compacts bring obvious benefits to were able to negotiate a Tribal Water Right that fairly [*68] Indian and non-Indian water users, alike. The and reasonably reflects the essential purpose [*66] of Court reiterates that HN39 in the absence of clear the Reservation as a continuing homeland for the federal authority prohibiting the various compact Chippewa Cree Tribe, and, at the same time, minimizes, provisions and in the absence of demonstrated injury to to a fair and reasonable degree, the potential adverse objectors by these provisions, compacting parties are effects that exercise of the reserved water rights could within their authority to craft creative solutions to resolve have had on off-Reservation water users. difficult problems caused by ambiguous standards. As Jim Morsette, Chairman of the Tribal Negotiating Team, noted by this Court in its Fort Peck Memorandum, if described the process in his Affidavit to the Court: other parties claiming and negotiating reserved water rights proceed to litigation before the Montana Water After five years of intensive negotiations; numerous Court on the merits of those rights and thus forsake the public meetings to explain the settlement plan, receive compacting alternative, this Court will draw hard lines input from tribal members, non-Indian water users, and and resolve ambiguous legal precedent on many of the other interested parties; numerous revisions of the issues which are given a broad brush in its Compact proposed settlement agreement to meet concerns review. Fort Peck Memorandum, p. 9. expressed by non-Indian water users and other persons and by the Commission; and extensive on-going legal III. Summary Judgment and technical analysis, agreement was reached The Montana Rules of Civil Procedure provide that between the Tribe and the State of Montana as to "Judgment shall be rendered forthwith if the pleadings, quantification of the Tribe's water rights and as to depositions, answers to interrogatories, and admissions administration of those rights. . . . The Compact on file, together with the affidavits show that there is no embodies a compromise unique to the circumstances genuine issue as to any material fact, and that the of the Rocky Boy's Reservation that meets the long-term moving party is entitled to judgment as a matter of law." needs of the Tribe while, at the same time, protecting Rule 56(c), M.R.Civ. P. HN40 In applying the [*69] investment in state-based water needs. standard, all reasonable inferences are viewed in the Morsette Aff. at 7-8. light most favorable to the party opposing summary judgment. Erker v. Kester, 1999 MT 231, 296 Mont. 123, In reviewing this settlement, [*67] the Court is not 128, 988 P.2d 1221 (1999). However, the opposing required "to reach any ultimate conclusions on the facts must be of a substantial and material nature. contested issues of fact and law which underlie the Brothers v. General Motors, 202 Mont. 477, 481, 658 merits of the dispute, for it is the very uncertainty of P.2d 1108 (1983). Speculation and conclusory outcome in litigation and avoidance of wasteful and statements are not sufficient to raise a genuine issue of expensive litigation that induce consensual material fact. DeMers, 192 Mont. 367 at 373, 628 P.2d settlements." Officers for Justice, 688 F.2d at 625. "The 676; Young, 179 Mont. 492 at 497, 587 P.2d 401. proposed settlement is not to be judged against a Absent affirmative evidence to defeat the motion, the hypothetical or speculative measure of what might have motion is properly granted. Estate of Lien, 270 Mont. been achieved by the negotiators. (Citations omitted)" 295, 306, 892 P.2d 530 (1995). Id. The Montana Water Court has previously found that:

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All negotiations and adjudications quantifying Indian (Tribe), and the State of Montana (State) (collectively reserved water rights involve extensive and complex the Settling Parties) filed a "Motion for Partial Summary disputed issues of fact and law. They inherently involve Judgment and the Dismissal of the Objections of Hjortur competing interests in a scarce resource, the allocation Hjartarson, dba H & J Quarters, Inc., and Sam J. and of which must be determined by ambiguous, perhaps Rose M. Bitz, as individuals and dba Rocky Crossing anachronistic law, evolving governmental policies, and Ranch, the Dismissal of Eric Fjelde, and Brief in increasingly sophisticated science -- all amidst rapidly Support." On December 4, 2001, this Court granted this changing circumstances, within the confines of a motion as to the dismissal of Eric Fjelde. See Order complex adjudication [*70] process. That is precisely Granting Motion for Dismissal of Eric Fjelde filed the incentive for negotiation and settlement of complex December 4, 2001. On January 22, 2002, the Settling water right adjudications. In the negotiation process, Parties filed the withdrawal of their motion as to Mr. Bitz the uncertainties inherent in the determination of the . . and Rocky Crossing Ranch without waiving their ability . Tribal Water Right were employed by the parties as to raise any arguments therein in any other context, tools to gain leverage and bargaining power. including any prehearing motions. Compromise moved the process forward. In exchange for saving the cost and inevitable risk of litigation, the This Order addresses the remaining [*72] portion of the parties each gave up something they might have won in Settling Parties' motion seeking partial summary a court of law. In the settlement process, the parties judgment and the dismissal of the objection filed by resolved to their own satisfaction all of the remaining Hjortur Hjartarson, dba H & J Quarters, Inc. to the issues of fact and law. It is not for the Montana Water Chippewa Cree Tribe-Montana Compact (RB Compact), Court to renegotiate those disputes or rule on their codified at Section 85-20-601, MCA. For the reasons merits. that follow and as set forth in the Settling Parties' pleadings, the Court GRANTS the Motion for Partial Fort Peck Memorandum, pp 41-42. Summary Judgment directed at Hjortur Hjartarson, dba H & J Quarters, Inc. The Objectors in this case have failed to prove that any additional genuine issues of material fact remain for the Procedural History Montana Water Court to decide. They have failed to provide the affirmative evidence and law necessary to This case involves the RB Compact, a reserved water defeat the motion and to overcome the strong right compact entered into among the Settling Parties to presumption attached to this Compact that it is fair, settle the water rights of the Chippewa Cree Tribe of the reasonable, and adequate to all concerned. Rocky Boy's Reservation. Seventeen objections were filed in a timely manner. One of these objections was For the reasons set forth above and further detailed in filed by Hjortur Hjartarson, dba H & J Quarters, Inc. the submissions of the Settling Parties, the Court [*71] (Objector Hjartarson). The parties are, among other has entered its Order Approving Compact. things, presently litigating the merits of these objections DATED this 12th day of June, 2002. before this Court.

C. Bruce Loble On June 1, 2001, the Settling Parties served joint discovery requests, including interrogatories, requests Chief Water Judge for production of documents and requests for admissions, on the objectors to the RB Compact, FILED: JANUARY 25, 2002 including Objector [*73] Hjartarson. According to the documents attached to the discovery requests filed with ORDERGRANTINGMOTIONFORPARTIAL the Court on July 18, 2001, the joint discovery requests SUMMARY JUDGMENT and DISMISSING were delivered by the U.S. Postal Service to Hjortur OBJECTION OF HJORTUR HJARTARSON, dba H&J Hjartarson at 11:32 a.m. on June 5, 2001 in Apache QUARTERS, INC. Junction, Arizona. Therefore, the responses to this joint Introduction discovery were initially due the first week of July 2001. Objector Hjartarson did not contact any of the Settling On September 28, 2001, the United States of America Parties to request an extension of time regarding the (United States), the Chippewa Cree Tribe of Montana July deadline.

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On July 18, 2001, the Settling Parties filed a "Motion under state law. (RFA No. 17.) Admit that the and Supporting Brief for Partial Summary Judgment quantification of the water rights for the Reservation as and the Dismissal of Objectors Ronald W. Butler, Hjortur set forth in Article 111, Article IV, section A. 8, and Hjartarson, dba H & J Quarters, Inc., and Lyle K. and Appendix I of the Compact is scientifically, legally, and Barbara B. Ophus," (July Summary Judgment Motion). technically valid. (RFA No. 18.) Admit that other than the The motion and brief were based on the failure of these 10,000 acre-feet of water from Lake Elwell, the Tribal objectors to respond to the joint discovery requests. Water Right is appurtenant to lands held in trust for the Tribe by the United States constituting the Rocky Boy Thereafter, the Settling Parties agreed to allow Objector Reservation. (RFA No. 19.) Admit that the Compact is Hjartarson and the other three objectors addressed in fundamentally fair, adequate, and reasonable, and that the July Summary Judgment Motion until September 1, it conforms to applicable law. (RFA [*76] No. 20.) 2001, to file their responses to the joint discovery. See Notice of Stipulated Extension of Time Within Which to Objector Hjartarson, whose claims to water rights are Respond to Discovery, Motion to Stay Proceedings located in the Marias River Basin upstream of Lake [*74] on the Settling Parties' Motion for Partial Summary Elwell, expressed concern in his objection about Judgment and Dismissal of Objectors Butler, H & J reservoirs drying up and was also asked the following Quarters, and Ophuses, and Request for Telephonic requests for admission: Status Conference filed August 2, 2001. Admit that the place of use of the water rights in which On August 13, 2001, this Court conducted a telephonic you claim an ownership interest is upstream of Lake status conference with representatives of the Settling Elwell. (RFA No. 7.) Admit that the sources of supply for Parties and all but one of the remaining objectors. See your claimed water rights are Spring Coulee, Kapp Court Minutes and Scheduling Order filed August 14, Spring, Hartman Spring, and the Marias River, and that 2001. Although duly ordered to use the Court's toll free your points of diversion (or on stream reservoirs) are number to access the telephone conference, Objector upstream from Lake Elwell. (RFA No. 8.) Admit that the Hjartarson did not do so and did not attend the priority date of the Tribe's storage right in Lake Elwell is conference call. Id. at 1. During the status conference, the same as that of the storage rights of the United the Court reviewed the "applicable discovery deadlines States in Lake Elwell, namely August 1952. (RFA No. and discovery procedure, appropriate contact by 13.) Admit that none of the water rights in which you litigants, Water Court Rules and Procedures, and how claim an ownership interest has ever been called out of to establish a primary contact attorney for the Settling priority by the United States exercising its storage rights Parties." Id. at 1. The Settling Parties proposed a further in Lake Elwell behind Tiber Dam. (RFA No. 14.) Admit extension of time --until September 14, 2001 --within that your water right(s) have not been and will not be which responses by any of the objectors to the adversely affected by the Tribe's right to 10,000 acre outstanding joint discovery requests of the Settling feet of storage water in Lake Elwell behind Tiber Dam. Parties must be served. With this extension, the (RFA No. 15.) objectors had approximately three and one-half months within which to respond to the [*75] joint discovery [*77] Discussion requests. Objector Hjartarson never responded and never filed answers to the discovery requests, including Objector Hjartarson has never responded to the Settling requests for admission (RFA). Parties' discovery nor has he ever requested an extension of time within which to respond to this Objector Hjartarson was asked the following requests discovery at any time since its delivery to him on June 5, for admission: 2001. Thus, he is in violation of this Court's Scheduling Order, which required that all responses by the objectors Admit that the Compact is consistent with state and to the outstanding discovery requests of the Settling federal law relating to the settlement of federally Parties be served on or before September 14, 2001. reserved water rights claims of Indian tribes in Montana. (Court Mins. & Sched. Order at 3, Aug. 14, 2001.) (RFA No. 16.) Admit that the Compact, in conjunction Further, Objector Hjartarson was ordered to participate with the federal legislation, furthers legitimate state in the Court's telephone conference call on August 13, purposes such as settling water rights claims of Indian 2001. In that conference call, the Court discussed the tribes and protecting existing water rights recognized applicable rules and time schedules with the Settling

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Parties and objectors. As noted, Objector Hjartarson fact and the moving party is entitled to judgment as a did not attend this conference. As stated in this Court's matter of law. HN43 Once the moving party has Scheduling Order: sufficiently demonstrated the absence of any genuine material fact issues, the burden shifts to the non-moving Failure to comply with the terms of this Order may result party to demonstrate the existence of material fact in sanctions, up to and including entry of default and issues rendering summary judgment improper. Thelen . . . the dismissal of objections thereto. Any request v. City of Billings, 238 Mont. 82, 85, 776 P.2d 520 for a continuance must be made before the scheduled (1989). deadlines, in accordance with Uniform District Court Rules 2 and 3, and must include a showing of good Generally, HN44 failure to file an answer brief to an cause. adverse motion, as Objector Hjartarson has done here, [*80] is considered an admission that the motion is well (Court [*78] Mins. & Sched. Order at 3, Aug. 14, 2001.) taken. Rule 2(b), Montana Uniform District Court Rules. (emphasis in original). Objector Hjartarson is in violation However, in the case of summary judgment, Rule 56(c) of this Order. After filing his objection on October 10, (quoted above) contemplates that the party opposing 2000, Objector Hjartarson never contacted the Court the motion may serve opposing affidavits raising a again, never responded to any of the Settling Parties genuine material fact issue up until the day prior to regarding the joint discovery requests, and did not hearing. Thus, the general rule is that where the motion participate any further in any aspect of this case. HN41 is one for summary judgment, the essential question for A party displaying an attitude of unresponsiveness to the Court is whether a genuine issue of material fact the judicial process warrants the imposition of sanctions, exists, and this question cannot be decided on a mere including dismissal. Landauer v. Kehrwald, 225 Mont. technical fact, such as the failure to file briefs on time. 322, 325, 732 P.2d 839 (1987) and Smith v. Butte-Silver Cole v. Flathead County, 236 Mont. 412, 416, 771 P.2d Bow County, 276 Mont. 329, 916 P.2d 91 (1996). On the 97 (1989). Because a factual issue may be raised by basis of unresponsiveness alone, it would be opposing affidavits served the day prior to the time set appropriate to dismiss Objector Hjartarson's objection. for hearing, the general rule is that unless the right to a However, the Motion for Partial Summary Judgment hearing on a Rule 56 motion is specifically waived by all broadens the basis supporting a dismissal of Objector parties, either the movant or the adverse parties are Hjartarson's objection. entitled to a hearing in the ordinary case. Cole, 236 Mont. at 419. Simply failing to file briefs on time does Motions for summary judgment are governed by Rule not amount to a specific waiver of the right to a hearing 56, M.R.Civ.P. Rule 56(c) provides that: under Cole.

HN42 the motion shall be served at least 10 days before Notwithstanding this general rule, it is not [*81] the time fixed for the hearing. The adverse party prior to necessary for the Water Court to hold a hearing on the the day of hearing may serve opposing affidavits. The Motion for Partial Summary Judgment directed at judgment sought shall be rendered [*79] forthwith if the Objector Hjartarson. The facts of this case distinguish it pleadings, depositions, answers to interrogatories, and from "the ordinary case" presented in Cole. Here, admissions on file, together with the affidavits, if any, Objector Hjartarson failed to respond to the Court's show that there is no genuine issue of material fact and orders, failed to respond in a timely manner to discovery that the moving party is entitled to judgment as a matter requests made pursuant to Rule 36, M.R.Civ.P., and of law. then failed to respond to the Settling Parties' Motion for Partial Summary Judgment. Rule 56(c), M.R.Civ.P. The purpose of summary judgment is to eliminate the burden and expense of Pursuant to Rule 36, Objector Hjartarson was asked to unnecessary trials. Klock v. Town of Cascade, 284 admit the truth of the several statements of fact set forth Mont. 167, 173, 943 P.2d 1262 (1997) citing Berens v. earlier. Failure to respond to a Rule 36 request carries Wilson, 246 Mont. 269, 271, 806 P.2d 14, 16 (1990). with it consequences independent of Uniform District Court Rule 2 and Rule 56. Rule 36(a) provides that a The Court is required to render judgment in favor of the request for admission is deemed admitted unless party requesting summary judgment if the record answered or objected to within thirty days after service demonstrates there are no genuine issues of material of the request. Rule 36(b), M.R.Civ.P.then provides that

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"any matter admitted under this Rule is conclusively preliminary or preliminary decree "for good cause established unless the court on motion permits shown." The section further defines "good cause shown" withdrawal or amendment of the admission." (Emphasis as "a written statement showing that a person has an added.) ownership interest in water or its [*84] use that has been affected by the decree." Section 85-2-233(1)(b), MCA. Several cases have held that admissions obtained by By failing to respond to the requests, Objector Hjartarson use of Rule 36 may show that there are no genuine has admitted that good cause did not exist for the filing issues of material fact [*82] and justify the entry of of his objection to the Compact and does not exist for Holmes & Turner v. Steer-In, summary judgment. See the continued prosecution of his objection. A fact 222 Mont. 282, 721 P.2d 1276 (1986); Morast v. Auble, deemed admitted by the operation of Rule 36, M.R.Civ.P. 164 Mont. 100, 105, 519 P.2d 157 (1974), citing 8 is conclusively established. The burden has shifted to Wright & Miller, Federal Practice and Procedure: Civil Objector Hjartarson to raise a genuine material fact Section 2264. These cases were decided prior to Cole issue regarding the validity and effect of the Compact, and the issue of the necessity for setting a hearing was and the efficacy of his objection. Thelen, 238 Mont. at not addressed. Regardless, these cases can be 85. To do this, Objector Hjartarson would need to file reconciled with Cole. Cole specifically recognizes that late answers to the requests for admissions. Objector HN45 there are exceptions to the hearing requirement: Hjartarson has not attempted to file or sought leave of court to file any late answer. Further, HN47 a party has . . . unless the right to a hearing on a Rule 56 motion is no absolute right to file late answers to requests for specifically waived by all parties (and not waived simply admissions. The matter rests within the discretion of the by the failure to file briefs) either the movant or the trial court, and the court's decision will not be disturbed adverse parties are entitled to a hearing under Rule 56 in the absence of a manifest abuse of discretion. Rule in the ordinary case. There may be an occasion when 36, M.R.Civ.P.; Swenson v. Buffalo Building Co., 194 under the law and the facts adduced, the movant would Mont. 141, 148, 635 P.2d 978 (1981). be so clearly entitled as a matter of law to a summary judgment that a district court might by order dispense More than four months have [*85] passed since the with the necessity of a hearing. deadline expired for Objector Hjartarson to respond to the joint discovery requests. Objector Hjartarson did not Cole, 236 Mont. at 419 (Emphasis added). This Court file timely answers or request leave of Court to file late concludes that HN46 a grant of summary judgment answers to the discovery requests since the last without a hearing based on material facts deemed extension was granted. More than fifteen months have admitted [*83] under Rule 36 and coupled with a expired since Objector Hjartarson filed an objection to complete failure of Objector Hjartarson to otherwise the RB Compact and neither the Court nor the other participate in the judicial proceedings is a proper parties have received any further filings from him. For exception to the hearing requirement of Cole. whatever reasons, Objector Hjartarson has chosen to take no further action to support his objection after its By failing to respond, Objector Hjartarson has admitted initial filing. that the RB Compact is scientifically and technically valid, that it is fundamentally fair, adequate, and The Court finds no need under the circumstances of this reasonable, and conforms to applicable law, that none case to conduct any hearing related to Objector of the Objector Hjartarson's water rights have ever been Hjartarson's portion of the Settling Parties' motion. called out of priority by the United States exercising its Under the law and facts presented in their motion, and storage rights in Lake Elwell behind Tiber Dam and that based on Objector Hjartarson's failure to respond to his water rights have not been and will not be adversely discovery or participate in this case in any manner other affected by the Tribe's exercise of its right to 10,000 than filing his initial objection, the Settling Parties, as acre feet of storage water in Lake Elwell behind Tiber the movants in this motion, are "so clearly entitled as a Dam under the RB Compact. These admissions remove matter of law to a summary judgment," that this Court any potential issues of fact regarding Objector will "by order dispense with the necessity of a hearing." Hjartarson's objection. Cole v. Flathead County, 236 Mont. 412, 419, 771 P.2d 97, 101 (1989). [*86] Section 85-2-233(1), MCA, provides that a person is entitled to a hearing on an objection to a temporary ORDER

Chase Nielson Page 28 of 31 2002 Mont. Water LEXIS 1, *86

Based on the above, it is Boulder CO

ORDERED that the facts stated in the Settling Parties' Daniel D. Belcourt, Tribal Attorney requests for admissions are DEEMED ADMITTED with respect only to Objector Hjartarson, dba H & J Quarters, Chippewa Cree Tribe Inc.; Box [*87] Elder MT ORDERED that the Settling Parties' Motion for Partial Verna F. Waddell Trust Summary Judgment against Hjortur Hjartarson, dba H & J Quarters, Inc. is GRANTED without need of any Winfield IL further hearing, and Calvin and Arlene Frelk FINALLY ORDERED that the objection of Hjortur Hjartarson, as an individual, and dba H & J Quarters, Merrillan WI Inc., is hereby DISMISSED and the name of Hjortur Hjartarson, dba H & J Quarters, Inc. shall be deleted Martha Fjelde Ondrejko from all future service lists in this case. Lakewood CO DATED this 25 day of January, 2002. Keith H. Rhodes C. Bruce Loble Winneconne WI Chief Water Judge Karl A. Fjelde Candace F. West Gardner IL Assistant Attorney General Lyle K. and Barbara B. Ophus Attorney General's Office Big Sandy MT Helena MT Sam J. and Rose M. Bitz Reserved Water Right d/b/a Rocky Crossing Ranch Co. Compact Commission Big Sandy MT Helena MT Lisa S. Semansky, Attorney Susan Schneider, Attorney Great Falls MT US Department of Justice For This Order Only: Environment & Natural Resources Div. Hjortur Hjartarson Denver CO Gold Canyon, AZ

Richard Aldrich Section 101(b)(3) of the Federal Settlement Act states that if "the approval by the appropriate court, including Field Solicitor any direct appeal, does not become final within 3 years Billings MT after the filing of the decree," the "approval, ratification, and confirmation of the compact by the United States Yvonne T. Knight, of Counsel shall be null and void," and with certain exceptions, the "Act shall be of no further force and effect." Since the Native American Rights Fund Settling Parties filed the Compact and proposed decree

Chase Nielson Page 29 of 31 2002 Mont. Water LEXIS 1, *87 with this Court on February 15, 2000, the applicable MSE-HKM Engineering, Municipal, Rural and Industrial deadline is February 14, 2003. Water Supply System Needs Assessment, Rocky Boy's Indian Reservation, prepared for the Bureau of See Order Designating the DNRC to Mail Notice of Reclamation in 1996, pp. 21-26, as cited in Technical Entry of Rocky Boy's Compact Preliminary Decree and Report Compiled by the Montana Reserved Water Notice of Availability (April 18, 2000). In addition, On Rights Compact Commission ("Commission Technical June 2, 2000, the Court directed the DNRC to [*88] mail Report"), p. 11. postcards to these same persons identifying two corrections to the Summary Description. Id.

See Notice that Objections have been Filed and See e.g., Commission Technical Report at 11-12, 20; Hearings Requested (November 9, 2000). Affidavit of Ronald E. Billstein ("Billstein Aff."), pp. 2-4; See generally, Cosens, 16 UCLA J. Envtl. L. & Pol'y at See Orders Dismissing Objection of: Aaron Pursley and 268-273; [*90] and "Average Annual Precipitation, Roger L. & Gaye L. Genereux (Jan. 30, 2001); Haney L. Montana," USDA, SCS, 1977. Keller (Mar. 23, 2001); Richard N. Looby, Wesley Berlinger, and Wilfred A. Berlinger (Jun. 8, 2001); Brian Billstein Aff. at 3-4; and Commission Technical Report G. Berlinger (Jun. 13, 2001); and Ronald W. Butler at 23-25, 29-30, 38, andAppendices referenced therein. (Sept. 21, 2001). Initially composed of Chris Tweeten, Chairman of the See Order Granting Motion For Dismissal of Eric Fjelde Compact Commission; Gene Etchart, Senator Mike (Dec. 4, 2001). Halligan (succeeded by Representative Antoinette R. Order Granting Motion for Partial Summary Judgment Hagener), Jack Salmond, and Commission staff and Dismissing Objection of Hjortur Hjartarson, dba H& Barbara Cosens, Legal Counsel; Bill Greiman, J Quarter, Inc. (Jan. 25, 2002). Agricultural Engineer; Arial Anderson, Soil Scientist; Bob Levitan, Hydrologist; and Joan Specking, Historical See also Davis v. City and County of San Francisco, Researcher. See Affidavit of Susan Cottingham 890 F.2d 1438, 1445 (9th Cir. Cal. 1989); SEC v. Ran- ("Cottingham Aff."), p. 2; and Commission Technical dolph, 736 F.2d 525, 529 (9th Cir. Cal. 1984). Report at 4. This Court is not bound by stipulations filed by the Initially composed of Rocky Stump, Sr., Chairman, Ray parties in the statewide adjudication. See analysis in Parker, Jr., Duncan Standing Rock, Jim Morsette Memorandum on Anderson and Harms Amended (Chairman, 1992), and Joe Big Knife. Affidavit of Jim Stipulation, Water Court Case WC-90-1, September 7, Morsette ("Morsette Aff."), Exhibit 1. 2000, incorporated herein by reference.

See also, Confederated Salish & Kootenai Tribes v. In the late 1980s, the Department of the Interior Clinch ("Clinch"), 1999 MT 342, 297 Mont. 448, 451- established the Department of the Interior Working 453, 992 P.2d 244 (1999); [*89] In re Application for Group in Indian Water Settlements, composed of five Beneficial Water Use Permit ("Ciotti"), 278 Mont. 50, 56, Assistant Secretaries of the Interior (Indian Affairs, 923 P.2d 1073 (1996); and State ex rel. Greely v. Water Water and Science, Land and Minerals, Parks and Court ("Greely I"), 214 Mont. 143, 157-160, 691 P.2d Wildlife; and Policy, Management, and Budget) and the 833 (1985). Solicitor. On May 7, 1990, the [*91] Working Group appointed a federal negotiation team comprised of See e.g., Governor Marc Racicot's State of Montana representatives of the Bureau of Indian Affairs, Bureau Proclamation, March 10, 1993, and Governor Judy of Reclamation, Fish and Wildlife Service, Department Martz' State of Montana Proclamation, June 27, 2001. of Justice, and Solicitor for the Department of the Interior. Barbara A. Cosens, "The 1997 Water Rights Settlement The Team was chaired by David Pennington of the BIA. Agreement Between the State of Montana and the In addition, the Team was supported by consultants and Chippewa Cree Tribe of the Rocky Boy's Reservation: agency technical staff as needed. Memorandum in The Role of the Community and the Trustee," 16 UCLA Support of Settling Parties' Motion for CompactApproval J. Envt'l L. & Policy 255, 266 (1997/1998). ("Cosens, 16 and Summary Judgment, at p. 14, n. 8. While the UCLA J. Envtl. L. & Pol'y") federal government participates in negotiations through

Chase Nielson Page 30 of 31 2002 Mont. Water LEXIS 1, *91 the federal negotiation team, all decisions are made by (2000): "Priority's modern significance lies in the threat the Working Group. Criteria and Procedures, 55 FR 9, of enforcement rather than the actual enforcement 223 (1990). because it encourages water users to cooperate either to reduce the risk of enforcement to as close to zero as Section 85-2-232(1) (1993) provides in relevant part possible or to share more equitably the burdens of that "the water judge shall serve by mail a notice of shortages. This said, cooperation and ad hoc sharing availability of the temporary preliminary decree or do not come easily to water users. Alternative allocation preliminary decree to each person who has filed a claim systems usually emerge only when a significant group of existing right within the decreed basin . . . ." (Emphasis of water users thinks that cooperation will produce a added.) superior result to the likely legal resolution allocation of Notice of Stipulated Extension of Time Within Which to the resources. If there is a credible threat of actual Respond to Discovery, Motion to Stay Proceedings on priority enforcement, users may cooperate to avoid the the Settling Parties' Motion for Partial Summary short and long term costs of the result. [*94] " Judgment and Dismissal of Objectors Butler, H&J As some Objectors acknowledged: "Measuring exactly Quarters, [*92] and Ophus, and Request for Telephonic these reserved water quantifies is not as simple as Status Conference, filed August 6, 2001. words imply. Precision of the measured amounts of Court Minutes and Scheduling Order, filed August 14, water used, in the particular setting is asking more than 2001. can be achieved. Keeping records of each deduction is nearly impossible." Exhibit 10, Objection to the "Rule 16(f), M.R.Civ.P., provides that if a party fails to Proceedings, Answers to Interrogatory Questions. . . By comply with a Rule 16(b) scheduling order, the court Objectors Calvin and Arlene Frelk, Verna P. Waddell may impose such sanctions as are just on its own Trust, Martin Fjelde Ondrejko, Eric Fjelde and Karl initiative. It contains no requirement that a party move Fjelde, at unnumbered page 9. for imposition of such sanctions." Rule 37(b)(2), M.R.Civ.P. provides that "if a party . . . fails to obey an For cases applying the doctrine broadly, See Colorado order to provide or permit discovery . . . the court in River Water Conservation District v. United States, 424 which the action is pending may make such orders in U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976); regard to the failure as are just. . . ." It contains no United States v. Ahtanum Irrigation Dist., 236 F.2d 321 requirement that an opposing party move for sanctions." (9th Cir. 1956); Arizona v. California, 373 U.S. 546, 83 McKenzie v. Scheeler, 285 Mont. 500, 512, 949 P.2d S. Ct. 1468, 10 L. Ed. 2d 542 (1963); Winters v. United 1168 (1997). (Emphasis added.) States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908); In re the General Adjudication of All Rights to Mr. Bitz stated that his wife, Rose M. Bitz, died on March Use Water in the Gila River System and Source (Gila 26, 2001, and the discovery requests were received "at River), 195 Ariz. 411, 989 P.2d 739 (1999) and 201 Ariz. the height of my farming and ranching season." In 307, 35 P.3d 68 (2001). For cases applying the doctrine addition, Mr. Bitz stated that he, the Montana narrowly, See Washington v. Washington State Com- Department of Highways, and the Bureau of Indian mercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, Affairs were involved in a dispute involving ownership of 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979); [*95] United mineral interests related to the Bitz land. Objection of States v. New Mexico, 438 U.S. 696, 98 S. Ct. 3012, 57 Motion for Entry of [*93] Order on Motion for Partial L. Ed. 2d 1052 (1978); Cappaert, 426 U.S. at 141; In re Summary Judgment and Dismissal of Objections; and the General Adjudication of All Rights to Use Water in Request for Continuance, and Brief in Support, filed the Big Horn River System ("Big Horn I"), 753 P.2d 76 December 3, 2001. (Wyo. 1988), aff'd in Wyoming v. United States, 492 Article I, Section 7 of the United States Constitution also U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342 by an provides that a bill automatically becomes law even equally divided court. For cases distinguishing between without a presidential signature ten days after being Indian reserved water rights and other federal reserved submitted, if Congress has not adjourned during that water rights, See Clinch, 1999 MT 342, 297 Mont. 448, time. 992 P.2d 244 (1999); Greely II, 219 Mont. 76, 712 P.2d 754 (1985). For cases that do not distinguish between See e.g., Dan Tarlock, "Prior Appropriation: Rule, Indian reserved water rights and other federal reserved Principle, or Rhetoric," 76 N.Dak. L. Rev. 881, 883 water rights, See Colorado River, 424 U.S. at 811;

Chase Nielson Page 31 of 31 2002 Mont. Water LEXIS 1, *95

United States v. District Court for Eagle County, 401 by requiring that factors such as land arability, U.S. 520, 91 S. Ct. 998, 28 L. Ed. 2d 278 (1971); engineering and economic feasibility must be Cappaert, 426 U.S. at 138; and Arizona v. California, considered in determining whether reservation land 373 U.S. at 601. was practicably irrigable for purposes of the PIA standard. In Arizona v. California, both the Master and the Supreme Court rejected the State's argument that "the See summary of proposals in Commission [*98] quantity of water reserved should be measured by the Technical Report at 30-31; Morsette Aff. at 4-7; Tweeten Indians' 'reasonably [*96] foreseeable needs."Adoption Aff. at 3-4; and Billstein Aff. at 8-13. of the PIA standard was essentially a compromise between a standard that would be fair to the Indians and For example, in Holmes, the sole factual allegation in one that would provide certainty and finality for the complaint was as follows: competing water users. In exchange for a generous Defendants, and each of them, owe plaintiff SIX standard and application (essentially the maximum THOUSANDTHREEHUNDREDTHIRTYFIVE amount the tribes could claim under the State's DOLLARS ($ 6,335.00) for accounting services "reasonable needs" test, whether the tribes would ever rendered by plaintiff to defendants, and each of them, actually need or use the water or not), the reserved between July 15, 1980 and January 5, 1981, with water rights of the tribes were finally quantified and interest at the rate of eighteen percent (18%) per annum. forever fixed in an amount that could not be enlarged, even for changed circumstances in the future. 373 U.S. Defendants denied this allegation in their answer and at 600-601. alternatively pled the affirmative defense of failure of As early as 1939, the Ninth Circuit Court observed that consideration. Later, the plaintiffs made the following "questions as to the quantity of water reserved is one of request for admission pursuant to Rule 36 M.R.Civ.P.: great practical importance, and a priori theories ought not to stand in the way of a practical solution of it. The Admit that the Defendant Steer-In owes Plaintiff the area of irrigated land included in the reservation is not sum of $ 6,335 plus interest at the rate of 18% per necessarily the criterion for measuring the amount of annum for accounting services rendered by Plaintiff to water reserved whether the standard be applied as of Defendant between July 15, 1980 and January 5, 1981. the date of creation or as of the present." Walker River Irrigation District, 104 F.2d at 340. See also Peter W. Over eight months passed between the time Steer-In Sly, Reserved Water Rights [*97] Settlement Manual was served with the request and when the Court issued 194 app. A (1988), at 104; Alvin H. Shrago, Emerging its Order deeming the facts in the request admitted and Indian Water Rights: An analysis of Recent Judicial and granting summary judgment to the plaintiff. The Legislative Developments, 26 Rocky Mt. Min. L. Inst. Supreme Court affirmed, holding that summary 1105, 1116 (1980); Indian Reserved Water Rights: judgment based on a fact [*99] deemed established by Hearings before Senate Comm. On Energy and Natural the operation of Rule 36, M.R.Civ.P. was proper. The Resources, 98th Cong., 2d Sess. 27-28 (1984)(Western Court reasoned that once the particular request was States Water Council, Report to Western Governors); admitted, there could no longer be any issues of fact for and Gina McGovern, Settlement or Adjudication: determination at trial. The Court further noted that "the Resolving Indian Reserved Rights, 36 Ariz. L. Rev. 195 very purpose of Rule 36 is to lessen the time of trial and (1994); and Joseph R. Membrino, Indian Reserved ultimately to set the stage for summary judgment." Water Rights, Federalism and the Trust Responsibility, Holmes, 222 Mont. at 283-285. 27 Land & Water Rev. 1, 6 (1992) (in which he asserts that Chief Justice Rehnquist and Justices White, Scalia, Memorandum in support of the Motion of the United and Kennedy would have reversed use of the PIA States of America, the Chippewa Cree Tribe, and the standard in the Big Horn River adjudication). State of Montana for Approval of the Chippewa Cree Tribe-Montana Compact and for Summary Judgment In Big Horn I, 753 P.2d at 111-112, the Wyoming Dismissing Objections, filed February 1, 2002, p. 2, n. 2. Supreme Court was more sensitive to state-held rights

Chase Nielson User Name: Chase Nielson Date and Time: 06 Jul 2016 2:51 p.m. MDT Job Number: 34383645

Document(1)

1. O'Leary v. Herbert, 5 Cal. 2d 416 Client/Matter: -None- Search Type: Natural Language Narrowed by: Content Type Narrowed by Cases -None-

O'Leary v. Herbert Supreme Court of California February 28, 1936 Sac. No. 4805

Reporter 5 Cal. 2d 416; 55 P.2d 834; 1936 Cal. LEXIS 418 M. T. O'LEARY, Respondent, v. JOHN HENRY court's award of damages to the landowners and the HERBERT et al.,Appellants. RODEO VALLEJO FERRY issuance of a restraining order in favor of one of the COMPANY, Respondent, v. JOHN HENRY HERBERT landowners but reversed the restraining order that was et al., Appellants issued against the lessors. The court held that even though the corporations were not negligent, they were Prior History: [***1] APPEAL from a judgment of the not permitted to injure the rights of the landowners to Superior Court of Solano County. Edward I. Butler, the percolating water that flowed from the mountain. All Judge Presiding. landowners had correlative, equal rights to the percolating water, and the corporations were not Disposition: Affirmed in part and reversed in part. permitted to take more than their share. The court ruled that the injunction against the lessors was improper Core Terms because the lessors had not authorized the acts of their tenants, the corporations. spring, tunnel, development company, damages, rights, underground, reservoir, mountain, trial court, waters, Outcome water flow, landlord, ceased, lessee, mining, percolating The court affirmed the judgment of the trial court, which water, Quicksilver, restraining, purposes, drain, lease awarded damages to the landowners and enjoined the corporations from overusing water to the detriment of Case Summary one of the landowners. The injunction against the lessors, ordering them to refrain from overusing water, was vacated and reversed. Procedural Posture Appellant related mining corporations sought to overturn the judgment of the Superior Court of Solano County LexisNexis® Headnotes (California), which held that they were liable to respondent landowners for damages to their water rights Real Property Law > ... > Nuisance > Defenses > General and which restrained the corporations from using more Overview water than was reasonably necessary.Appellant lessors Torts > Premises & Property Liability > Lessees & Lessors > to the corporation sought to overturn a water usage General Overview injunction that was issued against them. Torts > ... > Liabilities of Lessors > Negligence > General Overview Overview Unknown to anyone, a reservoir was located within a Torts > Premises & Property Liability > Lessees & Lessors > mountain. In the course of its mining operation, the Lessor & Lessee Nuisance Liability corporations, using standard procedures, tunneled into Torts > Premises & Property Liability > Lessees & Lessors > the reservoir, which caused a spring to go dry and Liability of Lessees damaged the landowners. The trial court found that the corporations were liable for damages to the landowners HN1 A landlord is not liable for acts of negligence of and issued a restraining order against the corporations tenants. A landlord is not liable for the consequences to and the lessors, ordering them to refrain from overusing others of a nuisance in connection with property in the water on their property. The court affirmed the trial possession and control of a tenant unless the landlord

Chase Nielson Page 2 of 6 5 Cal. 2d 416, *416; 55 P.2d 834, **834; 1936 Cal. LEXIS 418, ***1 authorized or permitted the act which caused it to --In these actions for injunctive relief and for damages become a nuisance occasioning the injury. for the loss of the water of a spring alleged to have been caused when a mining tunnel pierced an underground Real Property Law > Water Rights > General Overview reservoir, defendant lessors were not liable for their lessee's alleged acts of negligence where the evidence Real Property Law > Water Rights > Riparian Rights and findings showed that they were only lessors or HN2 The owner of land has a natural right to the landlords out of possession and control of the mining reasonable use of waters percolating therein, although interests in the property involved in the litigation, and the water may be moving through his land to the land of there was no evidence or finding of any exercise or his neighbor, and although he may prevent it from attempted exercise of any control or right of control over the property or over the lessee, which had exclusive entering his neighbor's land or draw it therefrom. The possession and control, and no finding that the lessors ownership of the land carries with it all the natural received any benefit from the lessee's mining advantages of its situation, and the right to a reasonable operations. use of the land and everything it contains, limited only by the operation of the maxim sic utere tuo ut alienum CA(2) (2) non laedas. It is upon this principle that the law of Id. > Landlord and Tenant > Negligence > Mining > riparian rights is founded, giving to each owner the right Royalties > Injunction > Motion to Vacate. to use the waters of the stream upon his riparian land, but limiting him to a reasonable share thereof, as against --Alandlord is not liable for acts of negligence of tenants; other riparian owners thereon. The same application of and in said actions, the receipt by defendant lessors of the principle should be made to the case of percolating royalty for the minerals, under the circumstances found, waters feeding the stream and necessary to its did not authorize or require them to interfere with or continued flow. Percolating waters, together with the control the mining operations carried on by the lessee; surface stream supplied by them, are a common supply, and where it was not shown or found that said lessors in which all who by their natural situation have access to had any interest in the relief sought by plaintiffs and no it have a common right, and of which they may each damages were awarded against said lessors by the trial make a reasonable use upon the land so situated, court, and no connection was established between taking it either from the surface flow, or directly from the them and the continued flow of water through the tunnel percolations beneath their lands. from the reservoir, the restraining order against the maintenance of the condition was, as to them, an idle Energy & Utilities Law > Oil, Gas & Mineral Interests > act, and their motion to vacate the order should have General Overview been granted.

Real Property Law > Water Rights > General Overview CA(3) (3) HN3 The rule of "correlative rights" abrogates the Id. > Underground Waters > Mining > Damages > Evidence. English rule as to percolating waters. Therefore, the --In said actions, plaintiffs were entitled to recover for rights of all landowners over a common basin, saturated damages resulting from the injury to their water supply strata, or underground reservoir, are coequal or by the piercing of the underground reservoir by the correlative, and that one landowner cannot extract more tunnel constructed by defendant lessee, even though it than his share of the water, even for use on his own appeared from the evidence and findings that no person lands, where the rights of others are injured thereby. knew or could have assumed that such a reservoir existed in the interior of the mountain, that the tunnel Headnotes/Syllabus was excavated in the orderly and necessary course of mining and in the exercise of a legal right in a lawful and Headnotes proper manner, and that the work was not carelessly or CALIFORNIA OFFICIAL REPORTS HEADNOTES negligently done, and the case at common law would have come under the doctrine of damnum absque CA(1) (1) injuria. Waters and Water Rights > Underground Waters > Negligence > Landlord and Tenant > Evidence > Findings. CA(4) (4)

Chase Nielson Page 3 of 6 5 Cal. 2d 416, *416; 55 P.2d 834, **834; 1936 Cal. LEXIS 418, ***1

Id. > Damages > Evidence > Findings. M. Hastings, George W. Hastings, Zita Hastings Courtney, and L. C. Leet, as administrator with the will --In said actions, the consideration of the mass of annexed of the estate ofAlice Hastings Hunt, deceased, evidence on the question of the damage caused by the restraining these defendants from taking water from the deprivation of water owing to drainage through the underground reservoir other than in a reasonably tunnel, and the continued wastage thereof, was a matter necessary amount for domestic, agricultural, mining or for the trial court, and where it met the burden squarely, other beneficial uses. By both judgments the Hastings and the evidence showed that the value of the property group of defendants was relieved from costs. was greatly diminished, the findings could not be disturbed on appeal. But two of the several appeals taken are here for consideration. By stipulation, these causes were Syllabus consolidated on appeal, and are presented here on but one transcript. We will deal with the appeals separately. The facts are stated in the opinion of the court. [**836] CA(1) (1) We take up first the appeal of Hannah M. Hastings, George W. Hastings, Zita Hastings Counsel: Grant H. Smith and L. C. Leet for Appellants. Courtney and L. C. [***3] Leet, as administrator with the will annexed of the estate of Alice Hastings Hunt, T. J. O'Leary, Dunn, White & Aiken and Joseph M. deceased. The evidence and the findings show these Raines for Respondents. appellants to be only lessors or landlords out of possession and control of the mining interests in the Judges: In Bank. Waste, C. J. Seawell, J., Shenk, J., property involved in the litigation. They are the owners Thompson, J., and Langdon, J., concurred. of reserved mining and mineral rights in the lands, which are in fact owned by defendant John Henry Opinion by: WASTE Herbert, who gave notice of appeal but who does not further appear. Through an established channel of Opinion transfers, the interest, possession and control of these rights are leased to the defendant Hastings [*417] [**835] Plaintiffs each brought an action Development Company, Ltd., which is a re-incorporation claiming damages against the defendants and seeking of the Hastings Quicksilver Mining Company, and which injunctive relief. It is alleged that plaintiffs have been has, at all times here involved, continued in the exclusive damaged through the cessation of the flow of water possession and control of the mining property as lessee, from a spring on their lands claimed to have been and has conducted the mining operations without control caused by a tunnel, dug and driven by Hastings or interference, or any right of control or interference, by Quicksilver Mining Company, piercing an underground these appellants. There is no evidence or finding reservoir which fed the spring on plaintiffs' property. The showing the exercise or attempted exercise of any water from the underground reservoir, it is further control or right of control over the lessee or the property; alleged, was being allowed to run to waste through the nor is there any finding that these appellants received tunnel, and the underground reservoir supplying it has any benefit from the mining operations [***4] carried on been drained to a point below the level of the spring, by the lessee. It therefore results that these appealing thereby causing the water to cease to flow. defendants are not liable for the alleged acts of negligence on the part of the Hastings Development At some stage of the proceedings the action was Company, Ltd. dismissed as to [***2] the defendant Slosson. Judgments were awarded each plaintiff, to wit, (1) in CA(2) (2) It is well established in this state, as in other favor of the plaintiff O'Leary (a) against defendant jurisdictions, that HN1 a landlord is not liable for acts of Hastings Development Company, Ltd., for $ 20,000; (2) negligence of tenants. Among the leading cases are in favor of plaintiff Rodeo Vallejo Ferry Company (a) Kalis v. Shattuck, 69 Cal. 593 [*419] [11 Pac. 346, 58 against defendant Hastings Development Company, Am. Rep. 568], and Higgins v. Los Angeles Gas & Elec. Ltd., for $ 1500, and (b) against defendants Sulphur Co., 159 Cal. 651 [115 Pac. 313, 34 L. R. A. (N. S.) 717]. Spring Valley Water Company, Ltd., John Henry Herbert, In the first of these cases it was held (p. 597) that a Hastings [*418] Development Company, Ltd., Hannah landlord is not liable for the consequences to others of a

Chase Nielson Page 4 of 6 5 Cal. 2d 416, *419; 55 P.2d 834, **836; 1936 Cal. LEXIS 418, ***4 nuisance in connection with property in the possession in order to drain the mine for the purpose of enabling it and control of a tenant unless the landlord authorized or to extract the ore. A large and totally unexpected flow of permitted the act which caused it to become a nuisance water was encountered in the core of the mountain. occasioning the injury. As stated by the Supreme Court [***7] Plaintiffs' spring, which was located on the of Massachusetts: "A landlord is not responsible to opposite side of the range, one and a half miles from the other parties for the misconduct or injurious acts of his portal of the tunnel and 108 feet above the level of the tenants to whom his estate has been leased for a lawful tunnel, ceased to flow shortly after the body of water and proper purpose, when there was no nuisance or was encountered. Considerable [**837] testimony was illegal structure upon it at the time of the lease." ( taken as to the cause of this cessation. Eminent Saltonstall v. Banker, 8 Gray (Mass.), 195; [***5] Peck geologists and other experts testified on both sides of the case. The court found that the rock forming portions v. Peterson, 15 Cal. App. 543 [115 Pac. 327].) The of Sulphur Spring Mountain to a depth of several receipt by these defendants of royalty for the minerals, hundred feet has been rendered open and porous under the circumstances found, would not authorize or through geologic processes, and now constitutes a vast require them to interfere with or control the mining underground reservoir in which, for hundreds of years operations carried on by their lessee. ( Alabama Clay last past, there has accumulated water that fell as rain Products Co. v. Black, 215 Ala. 170 [110 So. 151].) It is on the surface of the mountain, and which water, from not shown or found that the defendants Hastings or time immemorial to the date it ceased flowing as Leet, as administrator, have any interest in the relief described, was discharged from the underground sought by the respondents. In the lease of the mining reservoir through spring flow on the mountain, one of interests these appellants retained the right to enter which springs was that of the plaintiff O'Leary. This upon and examine the property at any time, and, by its water was retained in the core of the mountain by belts terms, they required the mining company to operate the of black shale lying along the base of the mountain mine with due regard to the safety, development and range on both sides. There was testimony that if the preservation of the premises as a working mine. No mining company's tunnel were bulkheaded to take the damages were awarded against the absentee landlords place of the shale at that point, [***8] it would require a (these appellants), nor were costs assessed against maximum of ten years for the water-table to rise them. We must therefore conclude that the trial court sufficiently to cause the spring to flow again. Another was of the view that they were in no way liable in the eminent geologist estimated it would require premises. No connection has been established between approximately twenty-five years. The cost of such these appellants and the continued flow of water through bulkheading would be very great. the tunnel. The restraining order against the maintenance of that condition, so far as these [***6] CA(3) (3) The court found that, notwithstanding the appellants are concerned, seems an idle act. The trial injury complained of by the plaintiffs, the tunnel was court should have granted their motion to vacate and "excavated in the orderly and necessary course of set it aside. The judgment and order, so far as concerns mining for the purpose of draining and developing the these appellants, should be reversed and the appellants defendant company's quicksilver [*421] mine and should have their costs on appeal. It will be so ordered. extracting the ore therefrom; that at the time said tunnel Each of the plaintiffs recovered damages against the was driven it was not known to the defendants, nor to company operating the mine. There remains to be any of them, that the underground reservoir existed in considered, therefore, the appeal of the Hastings Sulphur Spring Mountain, nor that the driving of the Development Company, [*420] Ltd., the lessee of the tunnel, nor the flow of water therefrom, would in any mining interests of the defendants Hastings, and, by manner affect the flow of water from plaintiff's spring". It itself or its predecessor, in exclusive possession and appears from the evidence and findings that no person control of the mining rights as lessee during all of the knew or could have assumed that an underground times here relevant. The mine known as the Hastings reservoir existed in the interior of the mountain. Quicksilver Mine had been owned by the Hastings Geologists from the University of California testified that family for more than fifty years, but in 1912 the land was the rush of water in the tunnel "would be as much a acquired by others, the mining rights being reserved. In surprise to a geologist as it was to a miner; that rush of 1929, the Hastings Quicksilver Mining Company, which water there from that mine is [***9] due to an exceptional was operating the mine on Sulphur Spring Mountain situation, and not a situation that you can find in the hills under a lease, drove a tunnel under certain old workings generally". There was other evidence to like effect.

Chase Nielson Page 5 of 6 5 Cal. 2d 416, *421; 55 P.2d 834, **837; 1936 Cal. LEXIS 418, ***9

The trial court awarded damages in favor of plaintiff he may prevent it [**838] from entering his neighbor's O'Leary in the sum of $ 20,000 against the appellant land or draw it therefrom. This right, continues the court, Hastings Development Company, Ltd.; granted the "arises from the fact that the water is then in his land so prayer of the plaintiff Rodeo Vallejo Ferry Company for that he may take it without trespassing upon his an injunction restraining the use of water from the neighbor. His ownership of the land carries with it all the tunnel over an amount reasonably necessary for certain natural advantages of its situation, and the right to a designated purposes, and awarded damages in its reasonable use of the land and everything it contains, favor against the development company in the sum of $ limited only by the operation of the maxim sic utere tuo 1500. ut alienum non laedas. It is upon this principle that the law of riparian rights is founded, giving to each owner Under the common law, the case on the facts the right to use the waters of the stream upon his established is wanting in all of the elements upon which riparian land, but limiting him to a reasonable share a recovery may be predicated. It falls fairly within the thereof, as against other riparian owners thereon. We doctrine of damnum absque injuria. The following think the same application of the principle should be quotation from 1 Corpus Juris, pages 965, 966, [***12] made to the case of percolating waters feeding enunciates the rule: "No cause of action arises from the the stream and necessary to its continued flow. There is doing of a lawful act or the exercise of a legal right if no rational ground for any distinction between such done or exercised in a lawful and proper manner, the percolating waters and the waters in the gravels resulting damage, if any, being damnum absque injuria. immediately beneath and directly supporting the surface A liability may, however, arise from the doing of a lawful flow, and no reason for applying a different rule to the two classes, with respect to such rights, if, indeed, the act or the exercise of a legal right in a negligent or two classes can be distinguished at all. Such waters, improper manner, but in such cases [***10] the liability is together with the surface stream supplied by them, based not upon the act done, but upon the manner of should be considered a common supply, in which all doing it." The trial court here found that the work of who by their natural situation have access to it have a constructing the tunnel was carried on in "the orderly common right, and of which they may each make a and necessary course of mining", i. e., in the exercise of reasonable use upon the land [*423] so situated, taking a legal right in a lawful and proper manner. it either from the surface flow, or directly from the There is no pretense that the work of constructing the percolations beneath their lands. The natural rights of tunnel was carelessly or negligently done. It is well these defendants and the plaintiff in this common supply of water would therefore be coequal, except as to settled in California, however, that the doctrine of the quantity, and correlative." (Citing cases.) The court, common law in relation to the situation here presented quoting further from the case of Verdugo Canon Water has been changed and [*422] modified. That subject is Co. v. Verdugo, 152 Cal. 655, 667 [93 Pac. 1021], well considered and such conclusion announced by this explains the distinction between the English rule, as Katz Walkinshaw court in v. , 141 Cal. 116, 122 et seq. modified by the modern American rule of reasonable [70 Pac. 663, 74 Pac. 766, 99 Am. St. Rep. 35, 64 L. R. use, and the [***13] rule of correlative rights, and holds A. 236]. (See, also, the first opinion in the cause, pages that HN3 the rule of "correlative rights" abrogates the 138, 150.) A more recent case applicable to the facts English rule as to percolating waters and that the rights relating to the appeal of the Hastings Development of all landowners over a common basin, saturated Company is Eckel v. Springfield Tunnel & Dev. Co., 87 strata, or underground reservoir, are coequal or Cal. App. 617 [262 Pac. 425], opinion by Mr. Presiding correlative, and that one landowner cannot extract more Justice Finch of the Third District Court of Appeal than his share of the water, even for use on his own (petition for hearing by the Supreme Court denied). lands, where the rights of others are injured thereby. There, as here, the waters underlying the appellant's (Citing Kinney on Irrigation and Water Rights, 2d ed., land were percolating [***11] waters -- a vast mass of sec. 1192.) In the Eckel case, the owners of a mine water confined in a basin, always moving slowly down constructed a drain tunnel, thereby intercepting to an outlet or outlets. Quoting from Hudson v. Dailey, percolating waters which naturally fed a certain spring, 156 Cal. 617, 628 [105 Pac. 748], the court used as a result of which the spring ceased to flow. It was language stating in effect that HN2 the owner of land held that the plaintiff was entitled to damages. has a natural right to the reasonable use of waters percolating therein, although the water may be moving CA(4) (4) The trial court in the case now before us has through his land to the land of his neighbor, and although found that both plaintiffs are entitled to damages. The

Chase Nielson Page 6 of 6 5 Cal. 2d 416, *423; 55 P.2d 834, **838; 1936 Cal. LEXIS 418, ***13 substance of the evidence on the question of damages water supply of Sulphur Spring Mountain was recently is that the value of the property as a going concern was the subject of comment by this court. ( L. Mini Estate much greater before the Blue Rock Spring ceased to Co. v. Walsh, 4 Cal. (2d) 249 [48 Pac. (2d) 666].) What flow than it was after there was no water. The trial court effect this condition may have in future on the operation found that the property of the plaintiffs had long been of the injunction granted in this case is not now material. maintained as a well-improved health resort; that the waters from the spring had been bottled [***14] and sold (1) The judgment in favor of plaintiff O'Leary against to the public for beverage and medicinal purposes; that Hastings Development Company, Ltd., for damages in without the water irrigation was impossible, and the the amount of $ 20,000 is affirmed; lawns and greens of the golf course and the trees, plants and shrubs were damaged and greatly (2) The judgment in favor of plaintiff Rodeo Vallejo Ferry depreciated in size and growth because of the lack of Company against Hastings Development Company, water. Before the spring ceased to flow there was Ltd., [**839] for damages in the amount of $ 1500 is sufficient water for irrigation purposes. The flow of water affirmed; cannot be restored for a period of at least fifteen years, and without the water the lands and real property of (3) The judgment in favor of plaintiff Rodeo Vallejo Ferry plaintiffs will be no longer useful for the purposes for Company restraining the defendant Hastings which they had been used, but will be suitable only for Development Company, Ltd., after a reasonable time, pasturage purposes and at a greatly diminished and from draining or taking from the underground reservoir depreciated rental value and revenue return therefrom mentioned and referred to in plaintiff's complaint any to plaintiffs, by [*424] reason of all of which the waters in excess of that amount of water which is or will improvements placed on the property have become a be reasonably necessary for domestic, agricultural, total loss. Consideration of the mass of evidence on the mining or other beneficial uses on lands riparian to the question of the damage caused by the deprivation of underground [***16] reservoir, is affirmed. water owing to drainage through the tunnel, and the continued wastage thereof was a matter for the trial (4) The judgment in favor of plaintiff Rodeo Vallejo Ferry court. It has met the burden squarely, and we are not Company restraining the defendants Hannah M. inclined to disturb its findings. Counsel for respondents Hastings, George W. Hastings, Zita Hastings Courtney have called our attention to the fact that, pending the and L. C. Leet, as administrator with the will annexed of [***15] determination of this appeal and in compliance the estate ofAlice Hastings Hunt, deceased, is reversed, with the injunction granted, a bulkhead was placed in these defendants to have their costs on appeal. the tunnel. Its effect on the restoration of the natural

Chase Nielson User Name: Chase Nielson Date and Time: 06 Jul 2016 3:07 p.m. MDT Job Number: 34385139

Document(1)

1. Pasadena v. Alhambra, 33 Cal. 2d 908 Client/Matter: -None- Search Terms: 207 P.2d at 28 Search Type: Natural Language

Pasadena v. Alhambra Supreme Court of California June 3, 1949 L. A. No. 19610

Reporter 33 Cal. 2d 908; 207 P.2d 17; 1949 Cal. LEXIS 253 CITY OF PASADENA, Plaintiff and Respondent, v. CITY total production to the safe annual yield against all OF ALHAMBRA et al., Defendants and Respondents; parties, including the public utility, in respondent city's DIVISION OF WATER RESOURCES, Referee and action seeking to determine ground water rights. Respondent; CALIFORNIA-MICHIGAN LAND AND WATER COMPANY (a Corporation), Appellant Overview The public utility contended that the trial court improperly Subsequent History: [***1] Appellant's Petition for a limited the amount of water that it could take from the Rehearing was Denied June 27, 1949. Carter, J., and ground in a certain area and improperly placed the Schauer, J., Voted for a Rehearing. burden of curtailing the overdraft proportionality on all Writ of certiorari denied California-Michigan Land & parties. The court held that the trial court had authority Water Co. v. Pasadena, 339 U.S. 937, 94 L. Ed. 1354, to limit the taking of ground water for the purpose of 70 S. Ct. 671, 1950 U.S. LEXIS 2110 (1950) protecting the supply and preventing a permanent undue lowering of the water table. The court also held that the rights of all the parties, including both overlying Prior History: APPEAL from a judgment of the Superior users and appropriators, were mutually prescriptive. Court of Los Angeles County. Frank C. Collier, Judge. Accordingly, the court held that the rights were of equal Action for declaration of rights of parties to underground standing, with none prior or paramount. The court also water within a basin area, and to enjoin an annual held that the record indicated an actual adverse use of overdraft to prevent depletion of supply. the disputed water, with an invasion of the rights of both overlying owners and appropriators. Furthermore, the Disposition: Modified and affirmed. Judgment for court held that the owners of water rights were injured plaintiff modified and affirmed. by additional appropriations made after all surplus waters were taken and that they were clearly entitled to Core Terms obtain injunctive relief to terminate all takings in excess of the surplus. Finally, the court held that there was sufficient evidence that the rights of prior were invaded appropriator, rights, parties, pumping, prescriptive right, and damaged. Basin, water rights, overlying owner, trial court, acre feet, decree, overdraft, cases, groundwater, feet, Outcome stream, waters, prior appropriator, safe yield, The court affirmed, as modified, the judgment of the trial prescription, surplus, users, underground basin, court. overlying, subsequent appropriator, beneficial use, underground, continuous, injunction, issues LexisNexis® Headnotes Case Summary Civil Procedure > Preliminary Considerations > Venue > General Overview Procedural Posture Appellant, a public utility, sought review of a judgment of Civil Procedure > Dismissal > Involuntary Dismissals > the Superior Court of Los Angeles County (California), General Overview which rendered a judgment substantially enforcing the Governments > Legislation > Statute of Limitations > Time terms of the stipulations allocating water and restricting Limitations

Chase Nielson Page 2 of 27 33 Cal. 2d 908, *908; 207 P.2d 17, **17; 1949 Cal. LEXIS 253, ***1

HN1 A dismissal is made mandatory by Cal. Civ. Proc. HN4 Since the abolition of the Water Commission in Code § 583, except in certain cases, unless the action is 1921, it has been repeatedly recognized that, under § brought to trial within five years after the plaintiff has 24 of the Water Commission Act, Cal. Water. Code §§ filed his action. In computing the five-year period the 2000- 2050, a court may properly refer a pending water time during which, for all practical purposes, going to rights case to the Division of Water Resources or its trial would be impossible, whether this was because of predecessor, the Division of Water Rights. total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and Civil Procedure > Judicial Officers > References futile, is to be excluded. Real Property Law > Water Rights > General Overview

Civil Procedure > Judicial Officers > References HN5 A trial court has authority, under §24 of the Water Commission Act, Cal. Water Code §§ 2000- 2050, to Real Property Law > Water Rights > General Overview include, in the matters which are to be submitted to the HN2 Every recent major water law decision of the referee and determined by the judgment, any issues Supreme Court of California has expressly or impliedly necessary to a proper determination of the controversy. approved the reference procedure provided by § 24 of the Water Commission Act, Cal. Water Code §§ 2000- Real Property Law > Water Rights > General Overview 2050, and has recommended, in view of the complexity HN6 There can be no question that a trial court has of the factual issues in water cases and the great public authority to limit the taking of ground water for the interests involved, that the trial courts seek the aid of the purpose of protecting the supply and preventing a expert advice and assistance provided for in that section. permanent undue lowering of the water table.

Civil Procedure > Judicial Officers > References Governments > Public Lands > General Overview Constitutional Law > Separation of Powers Real Property Law > Water Rights > General Overview Evidence > ... > Expert Witnesses > Court Appointed Real Property Law > Water Rights > Riparian Rights Experts > General Overview Evidence > ... > Expert Witnesses > Court Appointed HN7 Rights in water in an underground basin are Experts > Appointments classified as overlying, appropriative, and prescriptive. Generally speaking, an overlying right, analogous to Real Property Law > Water Rights > General Overview that of a riparian owner in a surface stream, is the right HN3 All of the pertinent constitutional safeguards have of the owner of the land to take water from the ground been observed by the legislature in enacting the underneath for use on his land within the basin or provisions of § 24 of the Water Commission Act, Cal. watershed; the right is based on ownership of the land Water Code §§ 2000- 2050. Section 24 does not provide and is appurtenant thereto. The right of an appropriator for the exercise of judicial power by the division, and depends upon an actual taking of water. The term implicit in the decision is the conclusion that the "appropriation" is said by some authorities to be properly separation of governmental powers is observed. In used only with reference to the taking of water from a effect, § 24 provides that the court may appoint the surface stream on public land for nonriparian purposes. division to act as an investigator and an expert witness, The California courts, however, use the term to refer to but there is nothing that authorizes the courts to control any taking of water for other than riparian or overlying or regulate, in any particular, the proper functions of the uses. Where a taking is wrongful, it may ripen into a division or the manner in which, pursuant to legislative prescriptive right. mandate, it shall proceed in conducting its examination and making its report. Section 24 is not unconstitutional Real Property Law > Water Rights > General Overview and void as a special law providing for a variation from Real Property Law > Water Rights > Appropriation Rights the general practice and procedure in the superior court in violation of Cal. Const. art. IV, § 25. Real Property Law > Water Rights > Beneficial Use HN8 An overlying owner or any other person having a Civil Procedure > Judicial Officers > References legal right to surface or ground water may take only Real Property Law > Water Rights > General Overview such amount as he reasonably needs for beneficial

Chase Nielson Page 3 of 27 33 Cal. 2d 908, *908; 207 P.2d 17, **17; 1949 Cal. LEXIS 253, ***1 purposes. Public interest requires that there be the rights so as to entitle him to bring an action. greatest number of beneficial uses which the supply Appropriative and prescriptive rights to ground water, can yield, and water may be appropriated for beneficial as well as the rights of an overlying owner, are subject uses subject to the rights of those who have a lawful to loss by adverse user. priority. Any water not needed for the reasonable beneficial uses of those having prior rights is excess or Real Property Law > Water Rights > General Overview surplus water. In California surplus water may rightfully be appropriated on privately owned land for HN11 Where the quantity of water withdrawn exceeds nonoverlying uses, such as devotion to a public use or the average annual amount contributed by rainfall, it is exportation beyond the basin or watershed. manifest that the underground store will be gradually depleted and eventually exhausted, and, accordingly, in Real Property Law > Water Rights > General Overview order to prevent such a catastrophe, it has been held Real Property Law > Water Rights > Appropriation Rights proper to limit the total use by all consumers to an amount equal, as near as may be, to the average Real Property Law > Water Rights > Beneficial Use supply and to enjoin takings in such quantities or in such HN9 It is the policy of California to foster the beneficial a manner as would destroy or endanger the use of water and discourage waste, and when there is a underground source of water. surplus, whether of surface or ground water, the holder of prior rights may not enjoin its appropriation. Proper Civil Procedure > Judicial Officers > References overlying use, however, is paramount, and the right of Real Property Law > Water Rights > General Overview an appropriator, being limited to the amount of the surplus, must yield to that of the overlying owner in the HN12 Section 24 of the Water Commission Act, Cal. event of a shortage, unless the appropriator has gained Water Code §§ 2000- 2050, provides that no exception prescriptive rights through the taking of nonsurplus shall be considered except in the court's discretion, or waters. As between overlying owners, the rights, like for some good cause shown, unless it shall appear that those of riparians, are correlative and are referred to as the matter of the exception had theretofore been belonging to all in common; each may use only his presented to the commission in the form of an objection. reasonable share when water is insufficient to meet the needs of all. As between appropriators, however, the Civil Procedure > ... > Jurisdiction > Jurisdictional one first in time is the first in right, and a prior Sources > General Overview appropriator is entitled to all the water he needs, up to Real Property Law > Water Rights > General Overview the amount that he has taken in the past, before a subsequent appropriator may take any. HN13 The retention of jurisdiction to meet future problems and changing conditions is recognized as an Real Property Law > Water Rights > General Overview appropriate method of carrying out the policy of the state to utilize all water available. HN10 Prescriptive rights are not acquired by the taking of surplus or excess water, since no injunction may issue against the taking and the appropriator may take Headnotes/Syllabus the surplus without giving compensation; however, both overlying owners and appropriators are entitled to the Headnotes protection of the courts against any substantial CALIFORNIA OFFICIAL REPORTS HEADNOTES infringement of their rights in water which they reasonably and beneficially need. Accordingly, an CA(1) (1) appropriative taking of water which is not surplus is Dismissal > Delay in Bringing Action to Trial. wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and --An action to determine water rights is not subject to adverse to the original owner, continuous and dismissal under Code Civ. Proc., § 583, because not uninterrupted for the statutory period of five years, and brought to trial till seven years after the filing of the under claim of right. To perfect a claim based upon complaint, where approximately four years of that period prescription there must, of course, be conduct which were consumed by proceedings before the Division of constitutes an actual invasion of the former owner's Water Resources as referee, and the issues to be tried

Chase Nielson Page 4 of 27 33 Cal. 2d 908, *908; 207 P.2d 17, **17; 1949 Cal. LEXIS 253, ***1 were dependent to a great extent by the facts to be court in enlarging the proceedings by determining that it ascertained by such referee, and it would have been was necessary to adjudicate inter se the amount of impracticable, if not futile, to proceed to trial prior to the water to which each of the several parties was entitled, completion of the referee's report. did not mislead defendant company to its prejudice nor deny due process of law where it had ample time to CA(2) (2) prepare its case after notice of the scope of the Waters > Procedure > Trial > Reference. proceedings.

--Under section 24 of the Water Commission Act as it CA(6) (6) read in 1939 (Stats. 1913, p. 1012, as amended; Waters > Procedure > Parties > Nonjoinder. Deering's Gen Laws, Act 9091; now Wat. Code, §§ 2000-2050), a water rights case was properly referred --In an action involving conflicting rights to underground to the Division of Water Resources as against water within a basin area, it was not error to allocate defendant's objection that the reference should have water without the joinder of a number of private users been made to the Department of Public Works as the who pumped comparatively small amounts, where a statutory successor of the Water Commission. referee stated that it would be impracticable to include all such parties, but recommended that certain named CA(3) (3) parties who used substantial amounts be joined in the Constitutional Law > Due Process > Hearing. action, which was done over the objections of defendant company, and where such defendant made no request --In an action involving conflicting water rights, for the inclusion of any party who had not been joined defendant company was not deprived of an opportunity nor showed that its interest was injuriously affected by to be heard in opposition to a referee's report and could the failure to require the joinder of all possible claimants. not complain that men who worked on such report were not available for cross-examination, where it was CA(7) (7) afforded an opportunity to examine witnesses who Id. > Procedure > Injunction. worked on the report, there was no showing that it sought to obtain the testimony of persons who were not --In an action involving conflicting rights to underground present, and it was permitted to introduce evidence water within a basin area, the trial court was justified in contrary to the report. concluding that the rule against enjoining public utilities was not applicable where the purpose of the litigation CA(4) (4) was the protection of both public and private users by Waters > Procedure > Trial > Reference. preventing further depletion of the water supply, and where there was nothing to indicate that the public --In an action involving conflicting water rights the trial interest would be better served by depriving private court had authority, under section 24 of the Water users of their pumping rights and compensating them Commission Act, to include, in the matters which were therefor. to be submitted to a referee and determined by the judgment, any issues necessary to a proper CA(8) (8) determination of the controversy, and it was not error to Id. > Underground Waters > Authority of Court. rule that the issues should embrace an adjudication of rights of the defendants inter se and the rights of each --In an action to determine rights in ground waters, the party as against every other party, where it would have trial court has authority to limit the taking of such waters been impracticable to decide the matter solely between so as to protect the supply and prevent an undue plaintiff and each defendant. lowering of the water table.

CA(5) (5) CA(9) (9) Constitutional Law > Due Process > Notice. Id. > Underground Waters > Extent of Right.

--In an action involving conflicting water rights in which --Generally speaking, an overlying right, analogous to the answers of the respective defendants did not present that of a riparian owner in a surface stream, is the right claims against the other defendants, the action of the of the owner of the land to take water from the ground

Chase Nielson Page 5 of 27 33 Cal. 2d 908, *908; 207 P.2d 17, **17; 1949 Cal. LEXIS 253, ***1 underneath for use on his land within the basin or gained prescriptive rights through the taking of watershed; the right is based on ownership of the land nonsurplus waters. and is appurtenant thereto. CA(16) (16) CA(10) (10) Id. > Underground Waters > Correlative User. Id. > Appropriation > Underground Waters. --As between overlying owners, the rights, like those of --In California the term "appropriation," as used with riparians, are correlative and are referred to as respect to water, is not restricted to the taking of water belonging to all in common; each may use only his from a surface stream on public land for nonriparian reasonable share when water is insufficient to meet the purposes, but refers to any taking of water for other than needs of all. riparian or overlying uses. CA(17) (17) CA(11) (11) Id. > Appropriation > Priorities. Id. > Underground Waters > Correlative User. --As between appropriators, the one first in time is the --An overlying owner or any other person having a legal first in right, and a prior appropriator is entitled to all the right to surface or ground water may take only such water he needs, up to the amount that he has taken in amount as he reasonably needs for beneficial purposes. the past, before a subsequent appropriator may take any. (See Civ. Code, § 1414.) CA(12) (12) Id. > Appropriation > Waters Appropriable. CA(18) (18) Id. > Prescriptive Rights. --Public interest requires that there be the greatest number of beneficial uses which a water supply can --Prescriptive rights are not acquired by the taking of yield, and water may be appropriated for beneficial surplus or excess water, since no injunction may issue uses subject to the rights of those who have a lawful against the taking and the appropriator may take the priority. surplus without giving compensation.

CA(13) (13) CA(19) (19) Id. > Appropriation > Waters Appropriable. Id. > Underground Waters > Protection of Rights.

--In California surplus water, or water not needed for the --Both overlying owners and appropriators are entitled reasonable beneficial uses of those having prior rights, to the protection of the courts against any substantial may rightfully be appropriated on privately owned land infringement of their rights in water which they for nonoverlying uses, such as devotion to a public use reasonably and beneficially need. or exportation beyond the basin or watershed. CA(20) (20) CA(14) (14) Id. > Prescriptive Rights. Id. > Procedure > Injunction > Acts Enjoinable. --An appropriative taking of water which is not surplus is --It is the policy of the state to foster the beneficial use of wrongful and may ripen into a prescriptive right where water and discourage waste, and when there is a the use is actual, open and notorious, hostile and surplus, whether of surface or ground water, the holder adverse to the original owner, continuous and of prior rights may not enjoin its appropriation. uninterrupted for the statutory period of five years, and under claim of right. CA(15) (15) Id. > Underground Waters > Priorities. CA(21) (21) Id. > Underground Waters > Loss of Rights. --Proper overlying use of water is paramount, and the right of an appropriator, being limited to the amount of --Appropriative and prescriptive rights to ground water, the surplus, must yield to that of the overlying owner in as well as the rights of an overlying owner, are subject the event of a shortage, unless the appropriator has to loss by adverse user.

Chase Nielson Page 6 of 27 33 Cal. 2d 908, *908; 207 P.2d 17, **17; 1949 Cal. LEXIS 253, ***1

CA(22) (22) --Parties who wrongfully appropriated water from an Id. > Underground Waters > Nature of Right. underground basin for a period of five years did not acquire prior prescriptive rights to the full amount so --The rights of a public utility corporation, with regard to taken where the original owners were not immediately waters which it exports to customers located outside prevented from taking water, but continued to pump the basin area, could not be overlying in character, but such water as they needed and hence were injured only are either appropriative or prescriptive. with respect to their rights to continue to pump at some future date. The original owners by their acts thus CA(23) (23) retained or acquired a right to continue to take some Id. > Underground Waters > Injunction. water in the future, and the wrongdoers also acquired prescriptive rights to continue to take water, but their --Where the quantity of water withdrawn from an rights were limited to the extent that the original owners underground basin each year over a series of years is in retained or acquired rights by their pumping. excess of the safe yield or of the average annual amount contributed by rainfall, and a continuation of the CA(27) (27) overdraft would eventually result in such a depletion of Id. > Underground Waters > Findings and Judgment. the supply stored in the basin that it would become inadequate to meet the needs of the existing owners, it --In an action involving conflicting rights to water in an is proper to limit the total use by all consumers to an underground basin, where prescriptive rights were amount equal, as near as may be, to the average established by appropriations made in the area supply and to enjoin takings in such quantities or in such subsequent to commencement of an overdraft of water a manner as would destroy or endanger the and were acquired against both overlying owners and underground source of water. prior appropriators, and where the overlying owners and prior appropriators also obtained or preserved rights CA(24) (24) by reason of the water which they pumped, the trial Id. > Underground Waters > Evidence. court properly concluded that the production of water should be limited by a proportionate reduction in the --In an action for declaration of rights of parties to water amount which each party had taken throughout the in an underground basin and to enjoin an annual statutory period. overdraft in order to prevent an eventual depletion of the supply, where the lowering of the water table CA(28) (28) resulting from the overdraft over a number of years was Id. > Underground Waters > Loss of Rights. plainly observable in the wells of the parties, and the records of water levels in defendant water company's --In an action involving conflicting rights to water in an own wells clearly showed the yearly changes, such underground basin, the three-year limitation prescribed evidence was clearly sufficient to justify charging by section 20a of the Water Commission Act (Deering's defendant with notice that there was a deficiency rather Gen. Laws, Act 9091; now Wat. Code, § 1241) with than a surplus and that the appropriations causing the reference to reversion of unused water, was not overdraft were invasions of rights of overlying owners applicable in determining whether there had been a and prior appropriators. loss of rights, since the primary purpose of the act was to create a system for issuing licenses and permits for CA(25) (25) appropriation of surplus waters, and water in an Id. > Underground Waters > Injunction. underground basin was not embraced by the licensing system. --Where subsequent appropriators reduce the available water supply of an underground basin and their acts, if CA(29) (29) continued, will render it impossible for the holder of a Id. > Underground Waters > Estoppel and Laches. prior right to pump in the future, there is an enjoinable invasion. --In an action involving conflicting rights to water in an underground basin, plaintiff city was not barred by CA(26) (26) estoppel and laches from taking out of the basin more Id. > Underground Waters > Priorities. water than the maximum amount pumped during the

Chase Nielson Page 7 of 27 33 Cal. 2d 908, *908; 207 P.2d 17, **17; 1949 Cal. LEXIS 253, ***1 period in which it used water from a river, which was not was nothing to show that this method of conservation a source of supply to the basin, where defendant water would result in an undue raising of the water table, and company was not induced to take any action by reason where ample protection against such a danger was of the use and importation of the river water, where no afforded by provisions in the decree reserving prejudice was shown, and where the time involved was jurisdiction to the trial court to modify the judgment and less than five years prior to commencement of the requiring the water master to keep monthly recordings action. of the depth of water in all wells.

CA(30) (30) CA(34) (34) Id. > Underground Waters > Persons Entitled. Id. > Underground Waters > Evidence. --In an action involving conflicting rights to water in an --In an action involving conflicting rights to water in an underground basin, the court did not err in refusing to underground basin, public policy considerations did not admit evidence offered to rebut the report of a referee require a holding that a city should be compelled to with respect to defendant company's water production purchase some of its water from a water district instead during specified years, where defendant did not comply of exercising its right to take water from an underground with the requirement of section 24 of the Water basin. Commission Act with regard to presenting exceptions to CA(31) (31) the commission, and showed no good reason why it did Id. > Underground Waters > Waste. not do so. (Cf. Water Code, §§ 2017-2019.)

--The failure of a city to capture and return to an CA(35) (35) underground basin storm waters and waters used to Id. > Underground Waters > Trial. flush streets, fight fires, and flow sewage does not --In an action involving conflicting rights to water in an constitute waste in violation of Const., art. XIV, § 3. underground basin, the trial court, prior to issuing an injunction enjoining any increase in the amount of water CA(32) (32) to be taken pursuant to a stipulation entered into Id. > Underground Waters > Appeal > Harmless Error. between all parties except defendant water company, did not err in failing to determine defendant's rights as --In an action involving conflicting rights to water in an against the parties diverting from streams leading to the underground basin, defendant water company could underground basin, where this issue was not clearly not properly complain of a water exchange agreement, raised in the pleadings and there was insufficient enforced by the judgment but not signed by defendant, evidence to enable the court to make such providing that plaintiff city should restrict its pumping in determination, and where, in view of the necessity of one section and take the remainder of its share of water securing a present solution of the controversy, the court elsewhere, where the company could not be damaged was justified in leaving open for future determination the by this provision unless the city pumped water in such rights of defendant as against all such diversioners. quantities in the immediate vicinity of the company's wells as to render it difficult or impossible for it to obtain CA(36) (36) the amount of water to which it was entitled, and where Id. > Underground Waters > Judgment. no reasonable likelihood of such an occurrence was shown. --In an action involving conflicting rights in ground waters, the court, by reserving jurisdiction to review its CA(33) (33) determination of the safe yield of the basin area and the Id. > Underground Waters > Injunction. rights of all parties as affected by the abandonment or forfeiture of any right, did not improperly make a --In an action involving conflicting rights to water in an declaration as to future rights, where it provided that, if underground basin, the injunction granted by the court the amount of the safe yield was increased, the did not improperly limit defendant water company to a permissible takings should be increased proportionately fixed number of acre feet of water a year, instead of up to the amount of the "present unadjusted right" of allowing unrestricted pumping so long as the water in each party, that is, the amount which it had been actually the wells was above some specified level, where there pumping.

Chase Nielson Page 8 of 27 33 Cal. 2d 908, *908; 207 P.2d 17, **17; 1949 Cal. LEXIS 253, ***1

CA(37) (37) Opinion Id. > Underground Waters > Judgment. --In an action involving conflicting rights in ground [*916] [**22] Plaintiff city, the chief producer of water waters, a provision in the judgment imposing a five-year from a 40 square mile alluvial-filled basin of ground limitation on the power to review the determination of water * known as the Raymond Basin Area, instituted safe yield of either or both units of the basin area tended this litigation [**23] to determine the ground water rights to defeat the purpose of the rule giving the trial court within the area and to enjoin an alleged annual overdraft continual supervisory powers in water rights cases, and in order to prevent eventual depletion of the supply. the judgment was modified on appeal by striking such Pursuant to section [***3] 24 of the Water Commission provision therefrom. Act, which was then in force (Stats. 1913, p. 1012, as amended, Deering's Gen. Laws (1937), Act 9091; now Counsel: Goodspeed, McGuire, Harris & Pfaff, Paul Wat. Code, §§ 2000- 2050), the trial court referred the Vallee, Richard C. Goodspeed and J. Donald McGuire matter to the Division of Water Resources of the for Appellant. Department of Public Works for a determination of the facts, and the ensuing report of the division was received A. E. Chandler, Special Counsel, Harold P. Huls, H. in evidence. On the basis of this report all of the Burton Noble, City Attorneys (Pasadena), C. C. Carlton, nondisclaiming parties, with the exception of the Spencer Burroughs, Henry Holsinger, James C. Bone, defendant California-Michigan Land and Water T. Guy Cornyn, City Attorneys (Arcadia), Gerald E. Company, a public utility and the sole appellant herein, Kerrin, Robert E. Moore, Jr., Hahn & Hahn, Edwin F. entered into a stipulation for a judgment allocating the Hahn, Potter & Potter, Bernard Potter, Sr., Merriam, water and restricting total production to the safe annual Rinehart & Merriam, Ralph T. Merriam, Laurence B. yield. The court, after hearing evidence presented by Martin, Frederick G. Stoehr, Emmett A. Tompkins, City appellant in opposition to the report, rendered a Attorney (Alhambra), Kenneth K. Wright, Special Counsel, Paul F. Garber, City Attorney (Monrovia), judgment substantially enforcing the terms of the Walter F. Dunn, Thomas Reynolds, City Attorneys stipulation against all parties, including appellant. (Sierra Madre), Anderson & Anderson, Trent G. [***4] The principal issues presented on this appeal are Anderson, John C. Packard, [***2] Bacigalupi, Elkus & whether the trial court properly limited the amount of Salinger, Claude Rosenberg, Derthick, Cusack & water that appellant may take from the ground in the Ganahl, W. J. Cusack, Wilton W. Webster, Dunn & Sturgeon, Walter F. Dunn, Chandler & Wright, Howard Raymond Basin Area, and whether it erred in placing Wright, Bailie, Turner & Lake, Norman A. Bailie, the burden of curtailing the overdraft proportionately on Cruick-shank, Brooke & Dunlap, Boyle & Holmes, John all parties. Before discussing these issues on the merits, W. Holmes, Frank P.Doherty, Gibson, Dunn & Crutcher, we will consider certain contentions involving Ira C. Powers, Harold W. Kennedy, County Counsel jurisdiction, procedure and remedy. (Los Angeles), and S. V. O. Prichard, Assistant County Preliminary Contentions Counsel, for Respondents. CA(1) (1) The complaint was filed on September 23, Martin J. Weil, Wm. J. De Martini, J. A. McNair, J. Arthur 1937, and the trial was not commenced until May 18, Tucker, W. F. Kiessig, Harrison Guio, L. A. Gibbons, 1944. HN1 A dismissal is made mandatory by section Jerry H. Powell, Douglas C. Gregg, Lawler, Felix & Hall 583 of the Code of Civil Procedure, except in certain and Pillsbury, Madison & Sutro as Amici Curiae on cases, unless the action is brought to trial within five behalf of Respondents. years after the plaintiff has filed his action. It is settled, however, that in computing the five-year period the time Judges: In Bank. Gibson, C. J. Shenk, J., Edmonds, J., during which, "for all practical purposes, going to trial Traynor, J., and Spence, J., concurred. Carter, J., would be impossible, whether this was because of total dissents. lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and Opinion by: GIBSON futile," is to be excluded. ( Christin v. Superior Court, 9

* In accordance with the terminology employed by the trial court and the parties, the expression "ground water" will be used to refer to water beneath the surface of the ground.

Chase Nielson Page 9 of 27 33 Cal. 2d 908, *916; 207 P.2d 17, **23; 1949 Cal. LEXIS 253, ***4

Cal.2d 526, 533 [71 [*917] P.2d 205, 112 A.L.R. 1153] [116 P.2d 442]; Meridian, Ltd. v. San Francisco [***7] , [time consumed by appeal from order granting [***5] 13 Cal.2d 424, 457 [90 P.2d 537, 91 P.2d 105]; Rancho change of venue]; Pacific Greyhound Lines v. Superior Santa Margarita v. Vail, 11 Cal.2d 501, 558-559 [81 P.2d Court, 28 Cal.2d 61, 64 [168 P.2d 665] [time during 533]; City of Lodi v. East [*918] Bay Mun. Utility Dist., 7 which one defendant was in military service and stay Cal.2d 316, 341 [60 P.2d 439]; Tulare Irr. Dist. v. might have been granted]; Judson v. Superior Court, 21 Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 575 [45 Cal.2d 11, 14 [129 P.2d 361] [time defendant avoided P.2d 972, 1014]; Peabody v. City of Vallejo, 2 Cal.2d service of summons by evasion and concealment]; 351, 373-374 [40 P.2d 486]; Wood v. Pendola, 1 Cal.2d Westphal v. Westphal, 61 Cal.App.2d 544 [143 P.2d 435, 443 [35 P.2d 526].) 405] [time during which coplaintiff had an appeal In sustaining and approving the reference procedure, it pending].) was stated in the Fleming case that HN3 "all of the The order of reference was made on February 8, 1939; pertinent constitutional safeguards were observed by the referee's report was filed on July 16, 1943, and, the legislature in enacting the provisions of section 24. thereafter, respondents proceeded with reasonable . . ." (18 Cal.2d at p. 528.) The opinion did not mention dispatch to bring the cause to trial. The issues to be tried whether section 24 conflicted with article III, section 1, were dependent to a great extent upon the facts to be of the Constitution, which provides for the separation of ascertained by the referee, and it would have been powers, or discuss whether such an order of reference impracticable, if not futile, to proceed to trial prior to the invalidly subjects an executive branch or division and its completion of the report. It follows that the time officers to the control of the judiciary. It was, however, consumed by the reference should be excluded in expressly held (18 Cal.2d at pp. 523-525) that section computing the five-year period, and that, therefore, the 24 does not provide for the exercise of judicial power by action was not subject to dismissal under the provisions the division, and implicit in the decision is the conclusion of section 583. [***8] that the separation of governmental powers is observed. (See, also, Wood v. Pendola, 1 Cal.2d 435, The "Division of Water Resources, Department of Public 442 [35 P.2d 526].) In effect section 24 provides that the Works, State of California," was appointed as referee court may appoint the division to act as an investigator pursuant [***6] to section 24 of the Water Commission and an expert witness, but there is nothing which Act which provided: "In case suit is brought in any court authorizes the courts to control or regulate, in any of competent jurisdiction for determination of rights to particular, the proper functions of the division or the water or the use of water, . . . the court may, in its manner in which, pursuant to legislative mandate, it discretion, refer such a suit to the state water shall proceed in conducting its examination and making commission for investigation of and report upon any its report. The Fleming case also expressly held that one or more or all of the physical facts involved, in which section 24 is not unconstitutional and void as a special event, said commission may, in its discretion, base its law providing for a variation from the general practice report solely upon its own investigation or investigations and procedure in the superior court in violation of article or in addition thereto may hold a hearing or hearings IV, section 25, of the Constitution.(18 Cal.2d at p. 528; and take testimony and the report filed by the cf., Wood v. Pendola, 1 Cal.2d 435, 442 [35 P.2d 526].) commission upon such a reference for investigation by it shall be prima facie evidence of the physical facts CA(2) (2) There is no merit in the contention that the therein found. . . ." reference should have been made to the Department of Public Works as the statutory successor of the Water HN2 Every recent major water law decision of this court Commission. HN4 Since the abolition of the Water has expressly or impliedly approved the reference Commission in 1921, it has been repeatedly recognized procedure provided by section 24 and has that, under section 24, the court may properly refer a recommended, in view of the complexity of the factual pending water rights case to the Division of Water [***9] issues in water cases and the great public [**24] Resources or its predecessor, the Division of Water interests involved, that the trial courts seek the aid of the Rights. * ( Fleming v. Bennett, 18 Cal.2d 518, 521 [116 expert advice and assistance provided for in that section. P.2d 442]; Rancho Santa Margarita v. Vail, 11 Cal.2d (See Fleming v. Bennett, 18 Cal.2d 518, 522 et seq. 501, 559 [81 P.2d 533]; City of Lodi v. East Bay Mun.

* Compare Water Code, sections 22, 2000, 2001.

Chase Nielson Page 10 of 27 33 Cal. 2d 908, *918; 207 P.2d 17, **24; 1949 Cal. LEXIS 253, ***9

Utility Dist., 7 Cal.2d 316, 341 [60 P.2d 439]; Tulare Irr. stated that it would be impracticable to attempt to include Dist. v. [*919] Lindsay-Strathmore Irr. Dist., 3 Cal.2d all such parties. It recommended, [*920] however, that 489, 575 [45 P.2d972, 1014]; Peabody v. City of Vallejo, certain named parties who used fairly substantial 2 Cal.2d 351, 373 [40 P.2d 486].) amounts be joined in the action, and the court ordered them brought in over the objections of appellant. No CA(3) (3) The complaint is made that some of the men request was made by appellant for the inclusion of any who worked on the report of the referee were not party who had not been joined, and there is no showing available for cross-examination at the time of the trial. It that its interest was injuriously affected by the failure to appears, however, that the man who prepared the require the joinder of all possible claimants. (See Smith report and supervised the investigation testified at length v. Cucamonga Water [***12] Co., 160 Cal. 611, 617 and that others who worked on the report also testified [117 P. 764].) The line must be drawn somewhere in at the trial. Appellant was afforded ample opportunity to order to bring the proceeding within practical bounds, examine these witnesses, and there is no showing that and it would have been impossible to reach a solution of it sought to obtain the testimony of persons who were the problems involves and to render a valid judgement not present. It [***10] was permitted to introduce if jurisdiction to make an allocation depended upon the evidence contrary to the facts appearing in the report, joinder of every person having some actual or potential and, under all the circumstances, there was no denial of right to the water in the basin and its sources of supply. an opportunity to be heard in opposition to the report. The persons not made parties are, of course, not bound by the judgment, nor are they injured by the injunction. CA(4) (4) Appellant claims that the trial court improperly enlarged the scope of the proceedings. In response to a CA(7) (7) Appellant further contends that it cannot be request of the referee for instructions, the court, after a enjoined since the water which it produces is devoted to hearing, ruled that the issues should "embrace an a public use. Reliance is placed upon cases holding that adjudication of rights of the defendants inter se and the when a public use has attached, inverse condemnation rights of each and every party as against each and proceedings may be invoked and compensation in lieu every other party." Although the answers of the of a prohibitory injunction is preferred in most respective defendants did not present claims against circumstances. (See Hillside Water Co. v. Los Angeles, the other defendants and were not served on them, the 10 Cal.2d 677, 688 [76 P.2d 681]; Peabody v. City of action was tried on the theory that these matters were at Vallejo, 2 Cal.2d 351, 377-380 [40 P.2d486]; Newport v. issue, and the ensuing judgment limiting the amount of Temescal Water Co., 149 Cal. 531, 538 [87 P. 372, 6 water that each could pump was also based on this L.R.A.N.S. 1098].) This rule has its foundation chiefly in theory. HN5 The trial court has [**25] authority, under the inconvenience to the public if service is interrupted section 24, to include, in the matters which are to be [***13] by the issuance of an injunction to restrain the submitted to the referee and determined by the use ( Miller & Lux v. San Joaquin L. & P. Corp., 8 Cal.2d judgment, any issues necessary to a proper 427, 436 [65 P.2d 1289]; Burr v. Maclay Rancho Water determination of the controversy. (See Fleming v. Ben- Co., 160 Cal. 268, 280 [116 P. 715]), and has no nett, 18 Cal.2d 518, 523 [116 P.2d 442].) It was within application to the problem which confronts us here. The the discretion of the trial court [***11] to determine purpose of this litigation is the protection of the interests whether it was necessary to adjudicate inter se the of both public and private users by preventing further amount of water to which each party was entitled, and depletion of the water supply. Excepting appellant, all the record indicates that it would have been parties, public as well as private, have consented to be impracticable to decide the matter solely between enjoined to effect this purpose. There is nothing in the plaintiff and each defendant. CA(5) (5) Moreover, record to indicate that the public interest would be better appellant had ample time to prepare its case after served by depriving private users of their pumping notice of the scope of the proceedings, and there is no rights and compensating them therefor. If this were basis for any claim that it was misled to its prejudice or done they would have to purchase their water from that it was denied due process of law. municipalities or public utilities which take water from the same underground area, and the total supply CA(6) (6) The objection is also made that the court available to the public would not be increased. erred in allocating water without the joinder of a number Moreover, it would be exceedingly [*921] difficult to fix of private users who pumped comparatively small the monetary loss of each private party and then amounts. The referee filed a preliminary report which apportion it among the numerous public users. In these

Chase Nielson Page 11 of 27 33 Cal. 2d 908, *921; 207 P.2d 17, **25; 1949 Cal. LEXIS 253, ***13 circumstances, the trial court was justified in concluding Mountains [***16] to the north and from the San Rafael that the rule against enjoining [***14] public utilities was hills to the west. Appellant's wells, from which it obtains not applicable. all its production, are in the southeastern part of this unit, and the underlying water constitutes one ground Findings and Judgment water body which is a common source of all parties taking water therefrom. The water pumped from the The Raymond Basin Area, a field of ground water ground in the Western Unit has exceeded the safe yield located at the northwest end of San Gabriel Valley, thereof in every year since 1913-14 (commencing includes the city of Sierra Madre, almost all of the city of October 1) except during the years 1934-35 and Pasadena, and portions of South Pasadena, San 1936-37. The safe yield of the unit was found to be Marino, and Arcadia. The field of ground water contains 18,000 acre feet per year, but the average annual draft alluvium consisting of sands, gravels and other porous was 24,000 acre feet, resulting in an average annual materials through which water percolates. The northern overdraft of 6,000 feet. side is formed by the San Gabriel range of mountains which rise back of the valley to a general elevation of With respect to the water rights acquired by the various from 5,000 [**26] to 6,000 feet. The area comprises 40 parties it was stipulated by all of them, including square miles and is separated from the rest of the valley appellant, that "all of the water taken by each of the along its southern boundary by the Raymond Fault, parties to this stipulation and agreement, at the time it sometimes known as Raymond Dike, a natural fault in was taken, was taken openly, notoriously and under a the bedrock constituting a "Barrier in the alluvium . . . claim of right, which claim of right was continuously and which greatly impedes the sub-surface movement of uninterruptedly asserted by it to be and was adverse to water from the area, although it does not entirely stop it, any and all claims of each and all of the other parties thus creating a vast underground storage reservoir." joining herein." There is a pronounced slope to the south from elevations The findings set forth in terms of acre feet per year "the of 1,000 feet above sea level at the mountains to a highest continuous production [***17] of water for general elevation of 500 to 700 feet at Raymond Fault. beneficial use in any five (5) year period prior to the In this part of the state there is ordinarily a series [***15] filing of the complaint by each of the parties in each of of wet years followed by a number of dry years, making said units, as to which there has been no cessation of it necessary during periods of above-normal rainfall to use by it during any subsequent continuous five (5) year store water for future use. It appears, however, that the period." This was designated, for convenience, the ground water storage capacity is adequate to store the "present unadjusted right" of each party, and the court excess during wet years for the following dry years. concluded that each party owned "by prescription" the right to take a certain specified amount of water, and Natural underground formations divide the area into that the rights of the parties were of equal priority. The two practically separate units. The Western Unit, the total of the unadjusted rights for the Western Unit was larger of the two, consists of the Monk Hill Basin, which found to be 25,608 acre feet per year, and water pumped is to the northwest, and the Pasadena Subarea. The by nonparties to the action was 340 acre feet per year. Eastern Unit, or Santa Anita Subarea, lies immediately The court also found that a continued draft in these to the east of the Pasadena Subarea. At the present amounts will result in an unreasonable depletion and water table elevations movement of ground water from the eventual destruction of the ground water as a source the Western to the Eastern Unit is so small as to be of supply; that any increase in the amounts taken in the immaterial but it might be increased by an overdraft in Eastern Unit will deplete the ground water supply in that the Eastern Unit. Movement from the Eastern to the unit; that in order to protect the supply it is necessary Western Unit is almost totally lacking. that the parties in the Western Unit be limited by reducing the "present unadjusted right of each such Our concern is with the Western Unit where the principal party in the proportion that the safe yield of said unit, ground water movement is from north and west of Monk less the water taken [***18] therein by nonparties hereto, Hill to the south and east and across Raymond Fault. bears to the aggregate [*923] of such rights of parties The water [*922] in this unit is replenished by rainfall, by hereto [**27] in said unit, and that each of the parties return water arising from the use of water in the unit, pumping or otherwise taking water from the ground in and by the runoff and underflow from the San Gabriel the Eastern Unit be limited to the amount of its present

Chase Nielson Page 12 of 27 33 Cal. 2d 908, *923; 207 P.2d 17, **27; 1949 Cal. LEXIS 253, ***18 unadjusted right." The amount of water limited to each out, the serious overdraft is in the area where appellant party, designated the "decreed right," was set out in the takes its water, and its pumping directly reduces the findings, and this allocation gave each party about supply where water is most needed. The record shows two-thirds of the amount it had been pumping. that in view of the smaller overdraft in the Monk Hill Basin the parties situated there suffered a greater The court enjoined all pumping in excess of the decreed ratable cut under the injunction than persons in the right and appointed a "Water Master" to enforce the pasadena Subarea, and that appellant has been helped provisions of the judgment. It reserved jurisdiction to rather than injured by inclusion of the Monk Hill Basin as modify the judgment or make such further orders as part of the underground storage area. might be necessary for adequate enforcement or for protection of the waters in the Raymond Basin Area Appellant contends that the safe yield was greatly from contamination. understated, and that there was little, if any, overdraft. Eighteen thousand acre feet per year was found to be Sufficiency of Evidence the safe yield in the Western Unit, and this figure was based upon the report of the referee which calculated Appellant takes the position that the ground water in the the amount from changes in the water stored Western Unit is not contained in a single storage basin underground and in the water table elevation as or reservoir as found by the court, but, rather, flows in compared with the amount of water extracted by certain defined underground streams from the pumping. It is asserted that the referee failed [***21] to northwestern portion to the southeastern section in measure and include the underflow from the San Gabriel much the same manner as water flows in surface Mountains and the waters conserved upon the surface streams, and that these streams, together with [***19] a by artificial means. All sources of underground water, flow of water from the Eastern Unit, converge at the however, were automatically included by the method of lower level where appellant's wells are located. It argues calculation employed by the referee, and it was not that its taking of water cannot possibly injure the upper necessary to make the specific measurements claimants because once the water has reached a lower mentioned by appellant. Moreover, it is obvious from level it cannot flow back upstream to the wells of the many statements in the report that surface conservation other parties. and underflow were given full consideration by the referee. The report states that no substantial quantity of water from the Eastern Unit now reaches appellant's wells. It The Main Issue also indicates that the ground water of the Western Unit is analogous to water stored in a large lake or reservoir, CA(8) (8) HN6 There can be no question that the trial through which several currents slowly flow from inlet to court had authority to limit the taking of ground water for outlet. Raymond Fault is similar to a dam in that it the purpose of protecting the supply and preventing a impedes the movement of water and backs it up over a permanent undue lowering of the water table. [**28] ( considerable area, and pumping tests established that Burr v. Maclay Rancho Water Co., 154 Cal. 428, 438 [98 when the water table was lowered in one well, the effect P. 260]; City of San Bernardino v. City of Riverside, 186 could be measured in wells almost 2 miles away. These Cal. 7, 16 [198 P. 784]; cf., Allen v. California Water & tests were conducted over comparatively short periods Tel. Co., 29 Cal.2d 466, 485-486 [176 P.2d 8].) The of time, the greatest being about three days, and since main problems presented are which of the parties should the water moves very slowly through the alluvium, it bear the burden of curtailing the total production of the could be inferred that the effect would have been much unit to the safe yield and what proportion, if any, of the more widespread if the test-pumping had been pumping by each particular party should be restricted. continued for a longer time. Since [***22] the stipulation made by the other parties as to the reduction in pumping by each is not binding There is nothing in the record which would compel a upon appellant, it is necessary to determine appellant's [***20] finding that the difference in elevation between rights in relation to the other producers in the same the Monk Hill Basin and the Pasadena Subarea is so manner as if there had been no agreement. great that wells in the [*924] northwest will be entirely unaffected by long-continued excessive pumping [*925] The question of who shall bear the burden of elsewhere in the unit. Moreover, as the referee points curtailing the overdraft, and in what proportion, depends

Chase Nielson Page 13 of 27 33 Cal. 2d 908, *925; 207 P.2d 17, **28; 1949 Cal. LEXIS 253, ***22 upon the legal nature and status of the particular water v. City of Vallejo, 2 Cal.2d 351, 368-369 [40 P.2d 486]; right held by each party. HN7 Rights in water in an City of San Bernardino v. City of Riverside, 186 Cal. 7, underground basin, so far as pertinent here, are 29, 30 [198 P. 784]; Burr v. Maclay Rancho Water Co., classified as overlying, appropriative, and prescriptive. 154 Cal. 428, 436 [98 P. 260]; Katz v. Walkinshaw, 141 CA(9) (9) Generally speaking, an overlying right, Cal. 116, 135 [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, analogous to that of a riparian owner in a surface 64 L.R.A. 236]; see 26 Cal.Jur. 32 et seq., 273-274.) stream, is the right of the owner of the land to take water from the ground underneath for use on his land within CA(14) (14) HN9 It is the policy of the state to foster the the basin or watershed; the right is based on ownership beneficial use of water and discourage waste, and of the land and is appurtenant thereto. (See Hillside when there is [***25] a surplus, whether of surface or Water Co. v. Los Angeles, 10 Cal.2d 677, 686 [76 P.2d ground water, the holder of prior rights may not enjoin its 681]; Miller v. Bay Cities Water Co., 157 Cal. 256, appropriation. ( Peabody v. City of Vallejo, 2 Cal.2d 351, 279-280 [107 P. 115, 27 L.R.A.N.S. 772]; 26 Cal.Jur. 368-369, 372 [40 P.2d 486]; see 26 Cal.Jur. 277.) 271-277; 2 Wiel, Water Rights [3d ed., 1911], §§ CA(15) (15) Proper overlying use, however, is 1100-1105, pp. 1040-1045.) CA(10) (10) The right of an paramount, and the right of an appropriator, being limited appropriator depends upon an actual [***23] taking of to the amount of the surplus, must yield to that of the water. (See 26 Cal.Jur. 277.) The term "appropriation" is overlying owner in the event of a shortage, unless the said by some authorities to be properly used only with appropriator has gained prescriptive rights through the reference to the taking of water from a surface stream taking of nonsurplus [**29] waters. CA(16) (16) As on public land for nonriparian purposes. (See Wiel, between overlying owners, the rights, like those of Water Rights [3d ed., 1911] §§ 228, 1107, 1158, 1159, riparians, are correlative and are referred to as and § 231 in the "reprint ed." of the 3d ed.; Farnham, belonging to all in common; each may use only his Waters and Water Rights [1904] § 672a; 56 Am.Jur. reasonable share when water is insufficient to meet the 599.) The California courts, however, use the term to needs of all. ( Katz v. Walkinshaw, 141 Cal. 116 [70 P. refer to any taking of water for other than riparian or 663, 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236]; see overlying uses. ( City of San Bernardino v. City of 26 Cal.Jur. 269-273, 276; cf., 25 Cal.Jur. 1063-1067.) Riverside, 186 Cal. 7, 13-14 [198 P. 784]; Burr v. Maclay CA(17) (17) As between appropriators, however, the Rancho Water Co., 154 Cal. 428, 436 [98 P. 260]; Katz one first in time is the first in right, and a prior v. Walkinshaw, 141 Cal. 116, 135 [70 P. 663, 74 P. 766, appropriator is entitled to all the water he needs, up to 99 Am.St.Rep. 35, 64 L.R.A. 236]; see 26 Cal.Jur. the amount that he has taken in the past, before a 273-274.) Where a taking is wrongful, it may ripen into a subsequent appropriator may take any. ( City of San prescriptive right. Bernardino v. City of Riverside, 186 [***26] Cal. 7, 26-28 [198 P. 784]; cf., Civ. Code, § 1414.) CA(11) (11)Although the law at one time was otherwise, it is now clear that HN8 an overlying owner or any other CA(18) (18) HN10 Prescriptive rights are not acquired person having a legal right to surface or ground water by the taking of surplus or excess water, since no may take only such amount as he reasonably needs for injunction may issue against the taking and the beneficial purposes. ( Katz v. Walkinshaw, 141 Cal. 116 appropriator may take the surplus without giving [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, 64 [***24] compensation; CA(19) (19) however, both overlying L.R.A. 236]; Peabody v. City of Vallejo, 2 Cal.2d 351 [40 owners and appropriators are entitled to the protection P.2d 486]; Cal. Const., art. XIV, § 3.) CA(12) (12) Public of the courts against any substantial infringement of interest requires that there be the greatest number of their rights in water which they reasonably and beneficial uses which the supply can yield, and water beneficially need. ( Peabody v. City of Vallejo, 2 Cal.2d may be appropriated for beneficial uses subject to the 351, 368-369, 374 [40 P.2d 486].) CA(20) (20) rights of those who have a lawful priority. ( Peabody v. Accordingly, an appropriative taking of water which is City of Vallejo, 2 Cal.2d 351, 368 [40 P.2d 486].) Any not surplus is wrongful and may ripen into a prescriptive water not needed for the reasonable beneficial uses of right where the use is actual, open and notorious, those having prior rights is excess or surplus water. hostile and adverse to the original owner, continuous CA(13) (13) In California surplus [*926] water may and uninterrupted for the statutory period of five years, rightfully be appropriated on privately owned land for and under [*927] claim of right. ( City of San Bernardino nonoverlying uses, such as devotion to a public use or v. City of Riverside, 186 Cal. 7, 22-23 [198 P. 784]; Katz exportation beyond the basin or watershed. ( Peabody v. Walkinshaw, 141 Cal. 116, 135 [70 P. 663, 74 P. 766,

Chase Nielson Page 14 of 27 33 Cal. 2d 908, *927; 207 P.2d 17, **29; 1949 Cal. LEXIS 253, ***26

99 Am.St.Rep. 35, 64 L.R.A. 236]; 25 Cal.Jur. 1178, record shows that there is ample water to satisfy the 1157-1158; 1 Cal.Jur. 585; 26 Cal.Jur. 278-279; cf., needs of all the overlying users and most of the Wutchumna Water Co. v. Ragle, 148 Cal. 759, 764-765 appropriators, and appellant's appropriative rights would [84 P. 162].) To [***27] perfect a claim based upon depend primarily [**30] upon evidence of priority in time prescription there must, of course, be conduct which of acquisition. constitutes an actual invasion of the former owner's rights so as to entitle him to bring an action. ( City of Los The principal dispute between appellant and Angeles v. City of Glendale, 23 Cal.2d 68, 79 [142 P.2d respondents, however, concerns whether any water 289].) CA(21) (21) Appropriative and prescriptive rights rights in the Western Unit have become prescriptive to ground water, as well as the rights of an overlying and, if so, to what extent. Respondents assert that the owner, are subject to loss by adverse user. This is in rights of all the parties, including both overlying users accord with the rule announced in cases dealing with and appropriators, have become mutually prescriptive water in a surface stream. (See Yankee Jim's Union against all the other parties and, accordingly, that all Water Co. v. Crary, 25 Cal. 504, 508-509 [85 Am.Dec. rights are of equal standing, with none prior or 145]; Big Rock M. W. Co. v. Valyermo Ranch Co., 78 paramount. Appellant, on the other hand, contends that Cal.App. 266, 273 [248 P. 264]; Peabody v. City of in reality no prescriptive rights have been acquired, and Vallejo, 2 Cal.2d 351, 374 [40 P.2d 486]; Duckworth v. that there has been no actionable invasion or injury of Watsonville etc. Co., 150 Cal. 520, 529-532 [89 P. 338]; the right of any party using water because each party Davis v. Gale, 32 Cal. 26, 35 [91 Am.Dec. 554]; 3 has been able to take all the water it needed and no Farnham, Waters and Water Rights [1904], § 680a, p. party has in any manner prevented a taking of water by 2106; 1 Wiel, Water Rights [3d ed., 1911], § 580, pp. any other party. It would follow, under appellant's [***30] 625-626; 56 Am.Jur. 773.) theory, that not even an overlying owner could have obtained an injunction against a subsequent taking. CA(22) (22) In the present case some of the parties, including owners of ranches, golf clubs, and cemeteries, We must look, therefore, to see if the disputed elements have pumped water solely for use on their own land, for a prescriptive right are shown by the record. Most of and their rights at the [***28] outset were overlying. The the factors are covered by the stipulation in which all the principal takers of water, however, are public utility parties, including appellant, joined, namely, that "all of corporations and municipalities which have either the water taken by each of the parties to this stipulation exported water or have used it within the Western Unit and agreement was, at the time it was taken, taken for municipal purposes or for sale to the public, and their openly, notoriously, and under a claim of right, which taking, when commenced, was entirely appropriative. ( claim of right was continuously and uninterruptedly City of San Bernardino v. City of Riverside, 186 Cal. 7, asserted by it to be and was adverse to any and all 29 [198 P. 784]; Eden Township County Water Dist. v. claims of each and all of the other parties joining herein." Hayward, 218 Cal. 634, 640 [24 P.2d 492].) Appellant Two necessary elements are omitted: The length of the exports about three-fourths of the water produced by it period over which the adverse user continued and the to customers located outside the area, and it claims nature and extent of actual adverse user, if any. overlying rights as to the other one-fourth which it takes. As to the exported water it is clear that its rights could The evidence clearly supports the finding which not be overlying in character, but are either appropriative designates in terms of acre feet per year "the highest or prescriptive. continuous production of water for beneficial use in any five (5) year period prior to the filing of the complaint by It follows from the foregoing that, if no prescriptive rights each of the parties in each of said units, as to which had been acquired, the rights of the overlying owners there has been no cessation of use by it during any would be paramount, and the rights of the appropriators subsequent continuous five (5) year period." would depend on priority of acquisition under the rule that the first appropriator in time is the first in right. The [***31] CA(23) (23) The record shows that there has latest in time of the appropriations would then be the been an actual adverse user of water in the Western first to be curtailed [*928] in limiting total production Unit. There was an invasion [*929] to some extent at [***29] of the area to the safe yield. If such were the least, of the rights of both overlying owners and case, the overdraft could be eliminated simply by appropriators commencing in the year 1913-1914, when enjoining a part of the latest appropriations, since the the overdraft first occurred. Each taking of water in

Chase Nielson Page 15 of 27 33 Cal. 2d 908, *929; 207 P.2d 17, **30; 1949 Cal. LEXIS 253, ***31 excess of the safe yield, whether by subsequent the same time each year to minimize the effect of appropriators or by increased use by prior appropriators, seasonal variations, it appears that the surface of the was wrongful and was an injury to the then existing water in appellant's well No. 1 was at an elevation of owners of water rights, because the overdraft, from its 559 feet above sea level in August, 1920, as compared very beginning, operated progressively to reduce the with 485 feet in August, 1937, amounting to a drop of 74 total available supply. Although no owner was feet.Appellant's well No. 4 was measured at the 570-foot immediately prevented from taking the water he needed, level in August, 1920, and at 499 feet in September, the report demonstrates that a continuation of the 1937, a drop of 71 feet. Appellant's well No. 5 was at overdraft would eventually result in such a depletion of 553.1 feet in August, 1928, and at 514 feet in August, the supply stored in the underground basin that it would 1937, a drop of 39.1 feet in the shorter period of nine become inadequate. The injury thus did not involve an years. Well No. 6 was at the 542-foot level in August, immediate disability to obtain water, but, rather, it 1919, at 568.2 [***34] feet in November, 1924, and at consisted of the continual lowering of the level and 515 feet in August, 1937, a net drop of 27 feet. gradual reducing of the total amount of stored water, the Appellant's well No. 7 was at 565.2 feet in October, accumulated effect of which, after a period of years, 1924, and at 484 feet in August, 1937, a drop of 81.2 would be to render the supply insufficient to meet the feet. Well No. 8 has records only for 1937 and 1938, and needs of the rightful owners. there are no records for two other wells, Nos. 2 and 3, which appellant has apparently abandoned. The [***32] proper time to act in preserving the supply is when the overdraft commences, and the aid of the This evidence is clearly sufficient to justify charging courts would come too late and be entirely inadequate appellant with notice that there was a deficiency rather if, as appellant seems to suggest, those who possess than a surplus and that the appropriations causing the water rights could not commence legal proceedings overdraft were invasions of the rights of overlying until the supply was so greatly depleted that it actually owners and prior appropriators. The elements of became difficult or impossible to obtain water. HN11 prescription being present in the record, the statute of Where the quantity withdrawn exceeds the average limitations ran against the original lawful holders of annual amount contributed by rainfall, it is manifest that water rights to whatever extent their rights were invaded. the underground store will be gradually depleted and eventually exhausted, and, accordingly, in order to CA(25) (25) It must next be determined whether the prevent such a catastrophe, it has been held proper to rights of all of the prior owners were invaded and limit the total use by all consumers to an amount equal, whether all or only a part of the right of any particular as near as may be, to the average supply and to enjoin owner was damaged. It has been established that the takings in such quantities or in such a manner as would rights of appropriators as well as of overlying owners destroy or endanger the underground source of water. ( will be protected by the courts and that an invasion of City of San Bernardino v. City of Riverside, 186 Cal. 7, either type of right will start the running of the statute. 15-16 [198 P. 784]; Burr v. Maclay Rancho Water Co., Where, as here, subsequent appropriators [***35] 154 Cal. 428, 438 [98 P. 260].) There is, therefore, no reduce the available supply and their acts, if continued, merit to the contention that the owners of water rights will render it impossible for the holder of a prior right to were not injured by the additional appropriations made pump in the future, there is an enjoinable invasion. In after all surplus waters were taken, and they clearly this respect there is no difference between an overlying [***33] were [**31] entitled to obtain injunctive relief to owner and an appropriator. Although neither may terminate all takings in excess of the surplus as soon as prevent a taking of surplus waters, either may institute it became apparent from the lowering of the well levels legal proceedings to safeguard the supply once a that the underground basin would be depleted if the surplus ceases to exist and may [*931] enjoin any excessive pumping were continued. additional user beyond the point of safe yield.

[*930] CA(24) (24) The lowering of the water table Cases are cited for the proposition that an appropriator's resulting from the overdraft was plainly observable in rights are not invaded if he continues to receive the the wells of the parties, and the records of water levels quantity of water to which he is entitled. These cases, in appellant's own wells afford an excellent example of however, do not deal with the problem of gradual the yearly changes from about 1919 to 1937, when the depletion of water stored in a basin or lake, but, rather, complaint herein was filed. Using figures taken at about with surface streams or ditches in which water flows but

Chase Nielson Page 16 of 27 33 Cal. 2d 908, *931; 207 P.2d 17, **31; 1949 Cal. LEXIS 253, ***35 is not retained for future use. The type of injury there pumping by each of the other parties by lowering the considered would immediately deprive the owner of water level. The original owners by their own acts, water, and the language in the opinions does not apply although not by judicial assistance, thus retained or to an invasion of rights in a stored supply of water to be acquired a right [***38] to continue to take some water in used only in future years. (See Faulkner v. Rondoni, the future. The wrongdoers also acquired prescriptive 104 Cal. 140, 147 [37 P. 883]; Peck v. Howard, 73 rights to continue to take water, but their rights were Cal.App.2d 308, 328 [167 P.2d [***36] 753]; City of San limited to the extent that the original owners retained or Diego v. Cuyamaca Water Co., 209 Cal. 105, 133 [287 acquired rights by their pumping. P. 475].) A partial analogy may be found in Smith v. Hampshire, 4 CA(26) (26) Neither the overlying owners nor the Cal.App. 8 [87 P. 224], where the appellant had appropriators took steps to obtain the aid of the courts constructed a ditch across the respondents' land and to protect their rights until the present action was used it adversely for 10 years, but the respondents, for instituted, many years after the commencement of the six years, had used a portion of the ditch jointly with but overdraft, and at first glance it would seem to follow that adversely to appellant. It was held that both had the parties who wrongfully appropriated water for a acquired rights in the ditch and that respondents' acts, period of five years would acquire prior prescriptive being hostile to appellant's asserted claim of exclusive rights to the full amount so taken. The running of the right, operated to conserve respondents' right to use the statute, however, can effectively be interrupted by self ditch. The court said (p. 11): "While respondents could help on the part of the lawful owner of the property right not acquire a prescriptive right to a right of way over involved. Unlike the situation with respect to a surface their own land, they could destroy appellant's claim of stream where a wrongful taking by an appropriator has exclusive right by open, peaceable, notorious and the immediate effect of preventing the riparian owner continuous adverse use, and thus establish their right from receiving water in the amount taken by the (as against his asserted, exclusive claim) to use the wrongdoer, [**32] the owners of water rights in the ditch themselves for a limited purpose and commingle present case were not immediately prevented from their water with his in so doing." taking water, and they in fact continued to pump whatever they needed. As we have seen, the Raymond We need not determine whether [***39] the overlying Basin Area is similar to a large lake or reservoir, and owners involved here retained simply a part of their water would be available until exhaustion of the supply. original overlying rights or whether they obtained new The owners were injured only with respect [***37] to prescriptive rights to use water. (See Glatts v. Henson, their rights to continue to pump at some future date. The 31 Cal.2d 368, 371 [188 P.2d 745].) The question might invasion was thus only a partial one, since it did not become important in order to ascertain the rights of the completely oust the original owners of water rights, and parties in the event of possible future contingencies, but for the entire period both the original owners and the these may never happen. wrongdoers continued to pump all the water they CA(27) (27) Adoption of appellant's position that the needed. water must be allocated, at least as between the The pumping by each group, however, actually municipalities and public utility companies, strictly on interfered with the other group in that it produced an the basis of priority in time of appropriation would not overdraft which would operate to make it impossible for only ignore the fundamental principle that the statute of all to continue at the same rate in the future. If the limitations runs against persons who fail to act when original owners of water rights had been ousted their rights are invaded, but it would result in an unequal completely or had failed to pump for a five-year period, sharing of the burden of curtailing the [*933] overdraft then there would have been no interference [*932] in that all pumping conducted under authority of certain whatsoever on the part of the owners with the use by of the later appropriations would be completely the wrongdoers, and the wrongdoers would have eliminated, whereas no restriction in amount would be perfected prior prescriptive rights to the full amount imposed upon pumping based on earlier appropriations. which they pumped. As we have seen, however, such Such a result does not appear to be justified where all of was not the case, and, although the pumping of each the parties have been producing water from the party to this action continued without interruption, it underground basin for many years, and none of them necessarily interfered with the future possibility of have [***40] acted to protect the supply or prevent

Chase Nielson Page 17 of 27 33 Cal. 2d 908, *933; 207 P.2d 17, **32; 1949 Cal. LEXIS 253, ***40 invasion of their rights until this proceeding was no claim that any of the rights to water involved in the instituted. Moreover, it seems probable that the solution present case were obtained under such a permit or adopted by the trial court will promote the best interests license, and the ground water in the Raymond Basin of the public, because a pro tanto reduction of the Area does not flow in known and definite channels amount of water devoted to each present use would within the meaning of section 42. normally be less disruptive than total elimination of CA(29) (29) In 1934, less than four years before the some of the uses. commencement of this action, the city of Pasadena We hold, therefore, that prescriptive rights were began to take a quantity of water from the San Gabriel established by appropriations [**33] made in the River, which is not a source of supply to the Raymond Western Unit subsequent to the commencement of the Basin Area. This diversion was terminated in 1941 as overdraft, that such rights were acquired against both part of the settlement of litigation brought by users of water from the river. Appellant contends that when the overlying owners and prior appropriators, that the city imported water from the San Gabriel River, it overlying owners and prior appropriators also obtained, reduced the amount which it took from the underground or preserved, rights by reason of the water which they basin and, therefore, that it is now barred by estoppel pumped, and that the trial court properly concluded that and laches from taking out of the basin more water than the production of water in the unit should be limited by a the maximum amount pumped during the period in proportionate reduction in the amount which each party which it used water from the river. The trial court found, had taken throughout the statutory period. however, that appellant was not induced [***43] to take any action by reason of the importation and that the city Other Contentions was not estopped. The finding is supported by the CA(28) (28) The water allowed each party by the trial record and, accordingly, is conclusive on this appeal. court was measured by the amount taken over a The claim of laches is sufficiently answered by the five-year period as to which there had been no cessation failure to show prejudice and the fact that the time of use during any subsequent five-year period.Appellant involved was less than five years prior to argues [***41] that, in determining whether there had commencement of the action. been a loss of rights, the court should have applied the CA(30) (30) There is no merit to the assertion that, shorter three-year limitation prescribed by section 20a because of considerations of public policy, the city of of the Water Commission Act, which was in effect prior Pasadena should be compelled to purchase some of its to 1943. (Deering's Gen. Laws (1937), Act 9091, § 20a, water from the Metropolitan Water District of Southern now Wat. Code, § 1241.) This section provided: "When California instead of exercising its right to take water the party entitled to the use of water fails to beneficially from the underground basin. Although the city has the use all or any part of the water claimed by him, for which right to purchase water from the district, it does not a right of use has vested, for the purpose for which it follow that the city should be compelled to do so in order was appropriated or adjudicated, for a period of three to afford a larger supply to other parties. years, such unused water shall revert to the public and shall be regarded as unappropriated public water." This CA(31) (31) The failure of the city of Pasadena to section, however, is not applicable here. The primary capture and return to the underground basin storm purpose of the act was to create a system for issuing waters and waters used to flush streets, fight fires, and licenses and permits for appropriation of surplus water flow sewage does not, as claimed by appellant, (see Deering's Gen. Laws (1937), Act 9091, §§ 1, 1d, constitute waste in violation of section [*935] 3 of article 11, 15, 16), and it is [*934] reasonably clear that section XIV of the California Constitution. Storm drains used for 20a was intended to refer only to water which had been flood control carried some water outside the area, but appropriated under such a license or permit. Water in [***44] this does not mean it was wasted, and there is an underground basin is not embraced by the licensing no evidence that there was any waste in [**34] system, because section 42 of the act provides that the connection with the use of water in ordinary and term "water," as used in sections [***42] of the act necessary municipal activities. relating to permits or licenses, "shall be interpreted to refer only to surface water, and to subterranean streams CA(32) (32) A water exchange agreement, enforced by flowing through known and definite channels." the judgment but not signed by appellant, provided that (Deering's Gen. Laws (1937), Act 9091, § 42.) There is the city of Pasadena should restrict its pumping in the

Chase Nielson Page 18 of 27 33 Cal. 2d 908, *935; 207 P.2d 17, **34; 1949 Cal. LEXIS 253, ***44

Monk Hill Basin and take the remainder of its share of parties other than appellant, but enjoined any increase water from elsewhere in the Western Unit. Appellant in the amount to be taken and expressly stated that it cannot properly complain of this provision unless it is was making no determination as to the existence of injured thereby, and it could not be damaged unless the such rights as against appellant. It is argued that, before city pumped water in such quantities in the immediate any injunction was issued, the court should have vicinity of appellant's wells as to render it difficult or determined appellant's rights as against the parties impossible for appellant to obtain the amount of water to diverting from streams leading to the underground basin. which it is entitled. No reasonable likelihood of such an The issue, however, was not clearly raised in the occurrence is shown, but, in the event that such a local pleadings, and there was not sufficient evidence in the shortage should take place, appellant may obtain relief record to enable the court to make a determination as to under that portion of the judgment reserving jurisdiction the priority of rights or as to the effect of these diversions upon the safe yield in the basin. In view of the necessity to make such modifications as may become necessary. of securing a present solution for the critical situation CA(33) (33) It is next argued that the injunction should [***47] in the basin area, the court was justified in not have limited appellant to a fixed number of acre feet leaving open for future determination the rights of of water a year but, rather, that unrestricted pumping appellant as against all such diversioners, some of should be allowed so long as the water [***45] in the whom were not made parties to the action. wells is above some specified level. Although this might CA(36) (36) The court reserved jurisdiction, among be a proper method of safeguarding the supply of water other things, to review its determination of the safe yield in the underground basin, there is nothing in the record of the Raymond Basin Area and the rights of all the which compels a finding that the method of conservation parties as affected by the abandonment or forfeiture of adopted by the trial court is improper or that it would any right. The reservation specifies that "in the event result in an undue raising of the water table. Moreover, material change be found or any such abandonment or ample protection against such a danger is afforded by forfeiture be established" the court can "adjudicate that the provisions of the decree reserving jurisdiction in the the decreed right of each party to pump or otherwise trial court to modify the judgment and requiring the take water from the ground in the Raymond Basin Area water master to keep monthly recordings of the depth of shall be changed proportionately in the same manner water in all wells. as originally fixed herein. . . ." [**35] Review of the safe yield was to be had "not more frequently than at five (5) CA(34) (34) The court did not err in refusing to admit year intervals." Appellant concedes that the court would evidence offered to rebut the report of the referee with have power to retain jurisdiction to readjust the rights of respect to appellant's water production from 1931 to the the parties in accordance with the law and the facts as end of 1938. HN12 Section 24 of the Water Commission they may be at the time, but it asserts that the court went Act provides that "[No] exception shall be considered beyond its authority and decreed as to rights which may except in the court's discretion, or for some good cause be attained in the future insofar as it reserved jurisdiction shown, unless it shall appear that the matter of the [***48] to pass upon abandoned or forfeited waters and exception had theretofore been presented to the provided that the right of each party should be altered commission in the form of an objection." (Cf., Wat. proportionately in the event of any material change or Code, §§ 2017- 2019.) Appellant did not comply with abandonment. The five-year limitation [*937] upon this requirement and showed no good reason why it did redetermination of the safe yield is also challenged by not do so. appellant. [*936] CA(35) (35) All parties [***46] except appellant HN13 The retention of jurisdiction to meet future stipulated that each of them who had diverted water problems and changing conditions is recognized as an from streams leading to the underground basin should appropriate method of carrying out the policy of the be restricted to an amount measured by the maximum state to utilize all water available. ( Allen v. California capacity of its diversion works "as the same existed at Water & Tel. Co., 29 Cal.2d 466, 488 [176 P.2d 8]; City any time within five (5) years prior to October 1, 1937," of Los Angeles v. City of Glendale, 23 Cal.2d 68, 81 which was approximately one week after [142 P.2d 289].) commencement of the action. Pursuant to this stipulation the court concluded that each of these In the present case, the trial court concluded that each diverters had the right to take this amount as against all party owned "by prescription" its "present unadjusted

Chase Nielson Page 19 of 27 33 Cal. 2d 908, *937; 207 P.2d 17, **35; 1949 Cal. LEXIS 253, ***48 right," that is, the amount which it had been actually percolating waters, the majority opinion purports to pumping. The effect of the judgment is to decree that, cover a much wider range in its pronouncements in the while the parties have this present right, it is necessary, field of water law. Any student in this branch of our law in order to conserve the basin and preserve the rights of must be impressed with the hodge-podge of conflicting all parties, to limit the takings to the amount of the safe rules and principles enunciated in the various decisions yield and therefore to make a pro tanto or proportionate of this court and the District Courts ofAppeal, particularly reduction in the amount which each can be permitted to during the past two or three decades, and the majority pump until such time as conditions warrant an [***49] opinion in this case [***51] simply adds to the confused increase. This solution of the problem recognizes that state of affairs. Having had a somewhat limited the original owners have some rights to continue to experience in the trial of cases involving principles of pump in the future, that at the same time certain water law, [**36] I have had the urge for some time to prescriptive rights have ripened on the basis of prepare a symposium of the decisions of our courts in appropriations made after the overdraft commenced, recent years, which, to my mind, leaves this branch of and that the rights of each of the parties are measured our law in a state of hopeless confusion. However, I do by the amounts of the respective takings. Under such not consider this case a proper vehicle in which to circumstances, it is proper to provide that, if the amount undertake this work and I shall await a more propitious of the safe yield is increased, the permissible takings occasion. shall be increased proportionately up to the amount of In view of the limited issues here involved, all discussion the "present unadjusted right" of each party. The relating to water rights in surface streams and lakes has adjudication thus applies to existing rights, and there is no relevancy to the problems here involved. At the no declaration as to future rights in water to which a beginning of the majority opinion, the issues here party has no present right. Accordingly, the action of the presented are correctly stated as follows: "The principal court is not in conflict with the statement in City of San issues presented on this appeal are whether the trial Bernardino v. City of Riverside, 186 Cal. 7 at pages court properly limited the amount of water that appellant 30-31 [198 P. 784], to the effect that a court should not may take from the ground in the Raymond Basin Area, undertake to make a declaration as to future rights. and whether it erred in placing the burden of curtailing the overdraft proportionately on all parties." Then follows CA(37) (37) We are of the opinion, however, that the a discussion of "Preliminary Contentions" relative to five-year limitation upon the power to review the dismissal of the action and reference to the Division of determination of safe yield tends to defeat the purpose Water Resources. I am disposed to agree that if the of the rule giving the trial court continual supervisory [***52] case were properly referred to the division, [***50] powers in water rights cases, and that the appellant was not entitled to have the case dismissed. judgment should be modified to preserve a broad However, if this were a case of first impression, I would retention of jurisdiction in the trial court to change its be disposed to agree with the appellant's contention decree and orders, after notice and hearing, as the that the scope and effect of the reference here made occasion may require. Paragraph XXI of the judgment was a violation of the judicial [*939] process. But it is is, therefore, modified by striking therefrom the following apparent from the recent decisions of this court that provision: "and that the review of its determination of virtual abdication of the judicial process of the courts in the safe yield of either [*938] or both of said units of the favor of the administrative process of the division has Raymond Basin Area shall be had not more frequently not only been sanctioned, but has been imposed by this than at five (5) year intervals after the date hereof." court upon the trial courts in cases of this character. Of As so modified, the judgment is affirmed, respondents the wisdom of such imposition I have grave doubt. I can to recover costs on appeal. see no objection, however, to a trial court availing itself of the investigating facilities of the division and making Dissent by: CARTER use of the data thus obtained in the solution of problems of this character, but I am unqualifiedly opposed to the Dissent view expressed in some of the decisions of this court relative to the infallibility of the division, and the necessity CARTER, J. I dissent. that trial courts refer every case involving problems While the issues in this case are limited to the rights of relating to water rights to the division and accept its overlying land owners and appropriators of underground determination of all questions of both fact and law. I am

Chase Nielson Page 20 of 27 33 Cal. 2d 908, *939; 207 P.2d 17, **36; 1949 Cal. LEXIS 253, ***52 convinced [***53] from an examination of the record in Am.St.Rep. 217]; Southern Cal. Inv. Co. v. Wilshire, 144 this case that that is just what the trial court did in Cal. 68 [77 P. 767]; Anaheim Union Water Co. v. Fuller, determining the rights of the parties to this action. It is 150 Cal. 327 [88 P. 978, 11 L.R.A.N.S. 1062]; Oliver v. obvious that principles of water law were disregarded, Robnett, 190 Cal. 51 [210 P. 408]; Pabst v. Finmand, that the division made a determination based upon the 190 Cal. 124 [211 P.11]; Morgan v. Walker, 217 Cal. 607 quantity of water available and the requirements of the [20 P.2d 660]; Moore v. California Oregon Power Co., respective parties, and divided the water accordingly, 22 Cal.2d 725 [140 P.2d 798]; Skelly v. Cowell, 37 regardless of prior appropriations, prescriptive rights, or Cal.App. 215 [173 P. 609]; Stepp v. [***56] Williams, 52 rights of overlying owners. They accomplish this unique Cal.App. 237 [198 P. 661]; Mt. Shasta Power Corp. v. result by evolving a new and novel theory of each user McArthur, 109 Cal.App. 171 [292 P. 549]. If it may be acquiring a right against the other by prescription or said that the doctrine of those cases was based upon a adverse use, thus destroying all priorities and placing philosophy of "rugged individualism," I would say that each user upon an equal footing with the other, the doctrine laid down in the majority opinion in the case regardless of the time of origin or bases of his right. This at bar is based upon the philosophy of bureaucratic is certainly a "new look" in the field of water law. We communism. Under this latter doctrine, long established, have indeed come a long way from the rugged and what was thought to be, a prior, vested right to individualism of the riparian right "rocking chair" doctrine as expounded in Lux v. Haggin, 69 Cal. 255 [4 P.919, 10 divert and use a given quantity of water is not only P. 674]; Alta Land etc. Co. v. Hancock, 85 Cal. 219 [24 placed upon a parity with later acquired rights, but an P. 645, 20 Am.St.Rep. 217]; Southern Cal. Inv. Co. v. administrative agency of the state steps in and Wilshire, 144 Cal. 68 [77 P. 767]; Montecito Valley W. administers the distribution of such water at the expense Co. v. Santa [***54] Barbara, 144 Cal. 578 [77 P. 1113]; of the users. This may not be the type of obnoxious Anaheim Union Water Co. v. Fuller, 150 Cal. 327 [88 P. stateism which exists in many other countries, but it is 978, 11 L.R.A.N.S. 1062]; Huffner v. Sawday, 153 Cal. certainly a very definite step in that direction. As one 86 [94 P. 424]; San Joaquin etc. Co. v. Fresno Flume who believes in the concept embraced within both the Co., 158 Cal. 626 [112 P. 182, 35 L.R.A.N.S. 832]; Miller federal and state Constitutions that an owner of private & Lux Inc. v. J. G. James Co., 179 Cal. 689 [178 P. 716]; property has the right to exercise ownership and control Oliver v. Robnett, 190 Cal. 51 [210 P. 408]; Pabst v. over it and make such use of it as he may see fit so long Finmand, 190 Cal. 124 [211 P. 11]; Herminghaus v. as he causes no injury to others thereby, I am opposed Southern California Edison Co., 200 Cal. 81 [252 P. to state supervision and control of [*941] privately 607]; Fall River V. Irr. Dist. v. Mt. Shasta P. Corp., 202 owned water [***57] rights, as well as other privately Cal. 56 [259 P. 444, 56 A.L.R. 264]; Miller & Lux Inc. v. owned property. I know of no reason, and none has Enterprise [*940] etc. Co., 169 Cal. 415 [147 P. 567]; been suggested, why parties engaged in water litigation Morgan v. Walker, 217 Cal. 607 [20 P.2d 660]; Moore v. may not prepare and present evidence in support of California Oregon Power Co., 22 Cal.2d 725 [140 P.2d their rights with as much probative value as that obtained 798]; Skelly v. Cowell, 37 Cal.App. 215 [173 P. 609]; by the Division of Water Resources. Stepp v. Williams, 52 Cal.App. 237 [198 P. 661]; Mt. The record discloses that in 1911, appellant purchased Shasta Power Corp. v. McArthur, 109 Cal.App. 171 171 acres immediately north of Raymond Fault. [292 P. 549]; California Pastoral & A. Co. v. Enterprise Appellant retains only a few parcels (about 10%) of the C. & L. Co., 127 F. 741, and other cases; and the original 171 acres. In every conveyance made, appellant doctrine of prior appropriation, [***55] as [**37] reserved all water rights. One-fourth of appellant's expounded in Osgood v. El Dorado Water etc. Co., 56 production has been used for beneficial uses on the 171 Cal. 571; Burrows v. Burrows, 82 Cal. 564 [23 P. 146]; acres of overlying land in Raymond Basin Area and De Necochea v. Curtis, 80 Cal. 397 [20 P. 563, 22 P. three-fourths has been exported for use outside of this 198]; Duckworth v. Watsonville W. etc. Co., 158 Cal. area on nonoverlying lands. By the end of the 1918-19 206 [110 P. 927]; Haight v. Costanich, 184 Cal. 426 [194 season, appellant's minimum annual extractions, P. 26]; Joerger v. Pacific Gas & Electric Co., 207 Cal. 8 extending over a period of five consecutive years, [276 P. 1017]; Jennison v. Kirk, 98 U.S. 453 [25 L.Ed. amounted to 370 acre feet of water. Before that, its 240]; Telluride Power T. Co. v. Rio Grande etc. Ry. Co., production was 337 acre feet. Three-fourths of its 175 U.S. 639 [20 S.Ct. 245, 44 L.Ed. 305]; and also the maintained extraction, or 284.25 acre feet, represent doctrine of prescriptive rights, as expounded in Alta prescriptive rights; that is, water diverted from the basin Land etc. Co. v. Hancock, 85 Cal. 219 [24 P. 645, 20 and used on nonoverlying lands. The remainder of the

Chase Nielson Page 21 of 27 33 Cal. 2d 908, *941; 207 P.2d 17, **37; 1949 Cal. LEXIS 253, ***57 water produced was used on its overlying lands in the Bernardino v. Riverside, 186 Cal. 7 [198 P. 784]; Pea- [***58] basin. During the 1923-24 season, appellant body v. City of Vallejo, 2 Cal.2d 351 [40 P.2d 486].) produced on its lands 403 acre feet and exported There are, in this case, two types of water rights involved three-fourths of this quantity. Between the last -- those of the overlying owners, and those of the mentioned season and the 1928-29 season, appellant nonoverlying owners. While I think the term produced 521 acre feet per annum, of which 118 acre "appropriator" is correctly used only with respect to feet was new production which had matured since those persons who acquired water rights prior to the 1919. Of this new production, 29.50 acre feet was used time the lands of other overlying owners were granted on overlying lands and 88.50 acre feet represent a new by the United States government, in the interest of prescriptive right acquired during this period. Appellant promoting an understanding of this dissent, in claims, and the evidence appears to sustain its position, conjunction with the majority opinion, I shall use the that by the 1933-34 season, it had acquired a term as meaning a nonoverlying owner -- in other words, prescriptive right to divert and use from its lands one who has acquired water rights for use other than on overlying Raymond Basin 390.75 acre feet, and 130.25 land overlying the underground water supply. acre feet for overlying uses on said land, or a total of 521 acre feet per annum. Appellant's production from Inherent in the opinion as set forth in Katz v. Walkinshaw, said land since the filing of the complaint is as follows: 141 Cal. 116 [70 P.663, 74 P.766, 99 Am.St.Rep. 35, 64 1938 -- 613.12 acre feet; 1939 -- 618.73 acre feet; 1940 L.R.A. 236], is the doctrine of correlative rights. It -- 626.06 acre feet; 1941 -- 578.88 acre feet; 1942 -- appears that this doctrine seeks to assimiliate [***61] 701.30 acre feet; 1943 -- 866.60 acre feet. By the the law of streams -- the analogy of riparian rights -- to decree in this action, appellant's production from said that of underground waters when used on overlying land for all purposes was determined to be 521 acre feet lands; as to nonoverlying use, the analogy of rights by per annum which quantity was classified [**38] as appropriation is in operation. appellant's unadjusted right. [***59] The decree, however, limited appellant's total diversion to 359 acre In 1928, a new section [art. XIV, § 3] was added to our feet per annum for all purposes. In arriving at the Constitution. This section was designed to prevent foregoing conclusion, the trial court determined as a waste of the waters of our state, and was added in the [*942] matter of law that all of the rights of the parties interests of the [*943] public welfare. The section reads are of equal priority and of the same legal force and in part as follows: "The right to water or to use or flow of effect; that each of the parties had acquired a water in or from any natural stream or water course in prescriptive right against the other for the quantity of this State is and shall be limited to such water as shall water which the court determined that each of said be reasonably required for the beneficial use to be parties was entitled to divert and use, and no distinction served, and such right does not and shall not extend to was made between the rights of overlying owners and the waste or unreasonable method of use or rights acquired by appropriation or prescription. unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no I am disposed to agree with counsel for appellant that more than so much of the flow thereof as may be "One would search the books a long, long time before required or used consistently with this section, for any law could be found that overlying owners' rights can purposes for which such lands are, or may be made be put into a hopper and come out appropriative or adaptable, in view of such reasonable and beneficial prescriptive rights, or that appropriative or prescriptive uses; provided, however, that nothing herein contained rights are co-equal with overlying owners' rights." I am shall be construed as depriving any riparian owner of sure that no cases can be found, even in the confused the reasonable use of [***62] water of the stream to and muddled state of our water law which give support which his land is riparian under reasonable methods of to such an absurd pronouncement. diversion and use, or of depriving any appropriator of water to which he is lawfully entitled. This section shall In California, one may acquire rights in underground be self-executing, and the Legislature may also enact water by appropriation or prescription. Such right, when laws in the furtherance of the policy in this section established, [***60] is paramount to that of the overlying contained." [Emphasis added.] owner. ( Burr v. Maclay Rancho Water Co., 154 Cal. 428 [98 P.260]; Katz v. Walkinshaw, 141 Cal. 116 [70 P.663, Evidently the first time the above quoted constitutional 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236]; San provision was considered by this court was in the case

Chase Nielson Page 22 of 27 33 Cal. 2d 908, *943; 207 P.2d 17, **38; 1949 Cal. LEXIS 253, ***62 of Gin S. Chow v. City of Santa Barbara, 217 Cal. 673 additional water is "surplus or excess water," then the [22 P.2d5]. That case involved the Santa Barbara River, above pronouncement is directly contrary to the and decided that stream waters not being put to a following cases: Butte Canal & Ditch Co. v. Vaughn, 11 beneficial use by a riparian owner could be appropriated, Cal. 143 [70 Am.Dec. 769]; Ortman v. Dixon, 13 Cal. 33; and the old law of vested riparian rights [**39] was Kidd v. Laird, 15 Cal. 161 [76 Am.Dec. 472]; Stein Canal supposedly overruled and obliterated by the 1928 Co. v. Kern I. I. C. Co., 53 Cal. 563; Lux v. Haggin, 69 constitutional amendment. In the light of certain Cal. 255 [4 P. 919, 10 P. 674]; Alta Land etc. Co. v. language contained in said amendment, such a Hancock, 85 Cal. 219 [24 P. 645, 20 Am.St.Rep. 217]; construction appears to me to be unwarranted. Those [***65] Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68 words are these: "Riparian rights in a stream or water [77 P. 767]; Montecito Valley W. Co. v. Santa Barbara, 144 Cal. 578 [77 P. 1113]; Anaheim Union Water Co. v. course attach to, but to no more than so much of the Fuller, 150 Cal. 327 [88 P. 978, 11 L.R.A.N.S. 1062]; flow thereof as may be required or used consistently Duckworth v. Watsonville etc. Co., 150 Cal. 520 [89 P. with this section, for the purposes for which such lands 338]; Wutchumna Water Co. v. Pogue, 151 Cal. 105 [90 are, or may be made adaptable, in view of such [***63] P. 362]; Huffner v. Sawday, 153 Cal. 86 [94 P. 424]; reasonable and beneficial uses; . . . provided, however, Miller v. Bay Cities Water Co., 157 Cal. 256 [107 P. 115, that nothing herein contained shall be construed as 27 L.R.A.N.S. 772]; Walnut Irrigation Dist. v. Burke, 158 depriving any riparian owner of the reasonable use of Cal. 165 [110 P. 517]; San Joaquin etc. Co. v. Fresno water of the stream to which his land is riparian under Flume Co., 158 Cal. 626 [112 P. 182, 35 L.R.A.N.S. reasonable methods of diversion and use, or of 832]; Miller & Lux Inc. v. Enterprise etc. Co., 169 Cal. depriving any appropriator of water to which he is 415 [147 P. 567]; Miller & Lux Inc. v. J. G. James Co., lawfully entitled." (Italics added.) 179 Cal. 689 [178 P. 716]; San Bernardino v. City of Riverside, 186 Cal. 7 [198 P. 784]; Antioch v. Williams There is nothing in the above quoted constitutional Irr. Dist., 188 Cal. 451 [205 P. 688]; Oliver v. Robnett, provision which should be construed as preventing an 190 Cal. 51 [210 P. 408]; Pabst v. Finmand, 190 Cal. appropriator from acquiring a prescriptive right to the 124 [*945] [211 P. 11]; Herminghaus v. Southern water he has used beneficially for the prescriptive California Edison Co., 200 Cal. 81 [252 P. 607]; Fall period. If the appropriator is using water which the River [***66] v. Irr. Dist. v. Mt. Shasta P. Corp., 202 Cal. riparian may need in the [*944] future to irrigate his 56 [259 P. 444, 56 A.L.R. 264]; Joerger v. Pacific Gas & land, then the riparian should be required to ask for a Electric Co., 207 Cal. 8 [276 P.1017]; Morgan v. Walker, declaratory judgment in order that such water may be 217 Cal. 607 [20 P.2d 660]; Miller & Lux Inc. v. Tulare available to him when he does need it. This would Lake etc. Dist., 219 Cal. 41 [25 P.2d 451]; Peabody v. prevent waste, and would be in line with the language City of Vallejo, 2 Cal.2d 351 [40 P.2d 486]; Tulare Irr. contained in the constitutional amendment. It would Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489 [45 also have the added advantage of letting the P.2d 972, 1014]; Meridian, Ltd. v. San Francisco, 13 appropriator know where he stands and what he may Cal.2d 424 [90 P.2d 537, 91 P.2d 105]; Moore v. Cali- expect. Under the present rule, an appropriator may fornia [**40] Oregon Power Co., 22 Cal.2d 725 [140 use water, incur obligations, etc., and then, later, when P.2d 798]; Skelly v. Cowell, 37 Cal.App. 215 [173 P. the riparian owner desires to use water, [***64] have his 609]; Stepp v. Williams, 52 Cal.App. 237 [198 P. 661]; rights taken from him. Such a state of affairs would bring Mt. Shasta Power Corp. v. McArthur, 109 Cal.App. 171 on far more chaos than the "old rocking chair" doctrine [292 P. 549]; California Pastoral & A. Co. v. Enterprise was capable of doing. C. & L. Co., 127 F. 741. This court has never stated The majority purport to expound rules relative to surplus forthrightly that the above cases are overruled. There or excess water, but admittedly there is no water are expressions in some decisions to the effect that the answering such a classification in this case. The majority doctrine of those cases is out of harmony with the opinion states: "Prescriptive rights are not acquired by concept embraced in the 1928 constitutional the taking of surplus or excess water, since no injunction amendment, but the confusion resulting from such may issue against the taking and the appropriator may interpretation [***67] of this amendment was probably take the surplus without giving compensation. . . ." What not envisioned by the members of this court who the majority mean by the phrase "surplus or excess participated in the decisions in which this amendment water" is not clear. If it is meant that so long as there is was interpreted. Under this interpretation, one who water available for those who desire to use it, any diverts water for a nonriparian use can never acquire a

Chase Nielson Page 23 of 27 33 Cal. 2d 908, *945; 207 P.2d 17, **40; 1949 Cal. LEXIS 253, ***67 right to the water diverted and beneficially used by him each other. This is a statement with which I am not in as against a riparian owner who does not see fit to use accord. In order that one may gain a prescriptive right his share of the water of a stream to which his land is there must be an adverse user for the prescribed period riparian. This means that many of the most valuable of five years under such circumstances that the person water rights in this state could not now be acquired. For against whom the use is adverse has knowledge, either example, A diverts water from a stream for a nonriparian actual or constructive. The majority charge the various use for the prescriptive period. During all this period appropriators with such knowledge because the water there is water flowing past the lands of the riparian level in the wells was lowered. This is absurd. The level owners downstream who are not cultivating their land, in these wells was, due to the very nature of the source and, therefore, have no present need for water. But of supply, subject to change. The duration and severity after A has fully developed his nonriparian land by the of the winter season, the length and intensity of the use of water from the stream for the prescriptive period, rainy season, the humidity or lack of humidity with its the downstream riparian owners decide to develop their attendant lack of evaporation or evaporation [***70] lands and need the water. Under the doctrine of the Gin would all have an effect on the supply of water available Chow and Peabody cases, the downstream riparian in the wells. The mere user of the water for the owners are entitled to all of the water if they need it to prescriptive period is not sufficient of itself to confer the exclusion and detriment of the nonriparian owner [**41] prescriptive title; the use must be adverse. who has made a beneficial [***68] use of it for the Otherwise it can never ripen into a prescriptive title, no prescriptive period. This was not the law before these matter how long continued. And before a use can be decisions. adverse in the sense of this rule, it must be an invasion of the rights of the party against whom it is [*947] set up, I am convinced that the doctrine of Lux v. Haggin supra, of such character as to afford him grounds of action; did not establish a wise policy for the development of that is, it is the fact that the claimant has been exposed the [*946] water resources of California, and had I been to an action which the opposite party has neglected to a member of this court when that case was decided, I bring, that is seized on as the ground for presuming a would have joined with the dissenters. However, there grant in favor of long continued possession and were many salutary principles of water law which were enjoyment. The theory being that this adverse state of engrafted onto that doctrine, under which valuable rights things would not have been submitted to if there had not were established, and those principles should not be been a grant.Ageneral principle which has been applied swept away by a stroke of the pen because the majority is that a use of the water of a stream or lake by a of this court believe that the 1928 constitutional common proprietor, although excessive, is not to be amendment has modified the riparian right doctrine by regarded as adverse, so as to ripen into a prescriptive limiting the right to the quantity of water reasonably right, however long continued, so long as it is the necessary for the beneficial use of the riparian owner. common use, and so long as other common owners are This modification should not operate to prevent a not injured thereby or prevented or excluded [***71] nonriparian owner from acquiring the same character of from making such use as of common right belong to right he could have acquired under the superseded them. (56 Am.Jur., Waters, pp. 766-768.) doctrine. I take the position, therefore, that a prescriptive In this case we have both overlying owners and right may be acquired to so-called "surplus or excess appropriators using the water, and apparently all the water" and that a holding to the contrary fails to water any of them had had need for. Yet we are asked to recognize fundamental and well settled principles of believe that each and every one of them has, in some water law which [***69] were not abrogated by the 1928 way, gained a prescriptive right against each and every constitutional amendment. one of the others because the water level in the wells In this case we have overlying owners who are has been lowered. It appears from the report of the analogous to the riparian owners, and we have many Water Commission that the underground supply has different appropriators. These different persons have all been withdrawn to a greater extent than is consistent been using the water for their various purposes for a with water conservation measures. It appears to me great many years -- far more years than is legally that the only question involved is that of priority in time necessary to acquire a prescriptive right against anyone. of appropriation. The majority say they have been using adversely to With respect to appropriators, the Civil Code provides each other, and have acquired prescriptive rights against that one prior in time is prior in right. (§ 1414.) This rule

Chase Nielson Page 24 of 27 33 Cal. 2d 908, *947; 207 P.2d 17, **41; 1949 Cal. LEXIS 253, ***71 seems to be agreed upon by the text writers and a great prior appropriator and [***74] as such cannot be number of cases. To state the general rule affirmatively, compelled to incur any material expense in order to an appropriator of water is entitled, as against all accommodate the subsequent appropriator. ( Tulare Irr. subsequent claimants, to the exclusive use of the water Dist. v. Lindsay-Strathmore Irr. Dist., supra, p. 574.) to the extent of his appropriation, without diminution or Although the prior appropriator may be required to material alteration in quantity or quality. The residue make minor changes in its method of appropriation in after a prior appropriation may be appropriated [***72] order to render available water for subsequent by others out of the water of the same stream, if there is appropriators, it cannot be compelled to make major no interference with the prior appropriation. When a changes or to incur substantial expense. ( Peabody v. senior appropriator does not need all or some portion of City of Vallejo, supra, p. 376)." [Emphasis added.] It the water, a junior appropriator may, at such times, use was also said at page 339, "Under such circumstances such unused waters, although the rights of the senior the 1928 constitutional amendment, as applied by this appropriators, when fully exercised, consume the entire court in the cases cited, compels the trial court, before flow. issuing a decree entailing such waste of water, to It is the very essence of the doctrine of prior ascertain whether there exists a physical solution of the appropriation that as between persons claiming water problem presented that will avoid the waste, and that by appropriation, he has the best right who is first in will at the same time not unreasonably and adversely time; in other words, the prior appropriator is entitled to [*949] affect the prior appropriator's vested property it to the extent appropriated [*948] to the exclusion of right." [Emphasis added.] any subsequent appropriator for the same or any other use. But where both rights can be enjoyed without The majority of this court, in holding that the prior interference with or material impairment of each other, appropriator's rights should be diminished the enjoyment of both is allowed. (56 Am.Jur., Waters, proportionately with those of subsequent appropriators, pp. 758-9; Wiel, Water Rights in the Western States, p. is, in so doing, interfering with a vested property right, 307 et seq.; Wishon v. Globe Light & Power Co., 158 [***75] and comes squarely within the limitation on the Cal. 137 [110 P. 290]; Tulare Irr. Dist. v. police power of the state as set forth in the Fourteenth Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489 [45 P.2d Amendment to the Constitution of the United States. 972, 1014]; United States v. 4,105 Acres of Land, 68 The subsequent appropriators are charged with F.Supp. 279; 121 A.L.R. 1044; Farnham, Waters and knowledge of the rights in the water acquired at a time Water Rights, p. 2089; [***73] City of Lodi v. East Bay prior to the time their rights were acquired, and it is they, Mun. Utility Dist., 7 Cal.2d 316 [60 P.2d 439]; Larsen v. rather than those who were first in time, whose rights Apollonio, 5 Cal.2d 440 [55 P.2d 196]; Meridian, Ltd. v. should be subject to the exercise of the police power in San Francisco, 13 Cal.2d 424 [90 P.2d 537, 91 P.2d the interests of the public in water conservation. 105].)

As a solution to the problem, the majority opinion affirms It is difficult to see how prescriptive rights can be said to the trial court and in so doing holds that the have been gained by subsequent appropriators against appropriators, including appellant, shall have allocated prior appropriators without a determination of the extent among them the water shortage. This is to be done by a of such rights. It seems that the scattered operations proportionate reduction of the amount each appropriator conducted by respondents should not have been has heretofore been pumping. The majority cite no lumped together to constitute one prescriptive right, but authority for this proposition. It is submitted that this is that there should have been a determination of each not, and should not be the law. In times of natural or prescriptive right, if any, that respondent had acquired other deficiency, also, unless otherwise provided by as against the appellant. Appellant sought, by its statute, the prior appropriator may still claim his full demurrer to the complaint, to have the court below amount; the loss must fall on the later appropriators. require respondent to plead the exact quantities and (Wiel, Water Rights, supra, p. 311, and cases cited locations of water rights which it claimed. Its demurrer therein.) This follows naturally from the rule that [**42] was overruled. It sought to ascertain the same thing by prior in time is prior in right, and this rule is found in a [***76] demand for a bill of particulars. The demand section 1414 of the Civil Code. was denied.

In City of Lodi v. East Bay Mun. Utility Dist., 7 Cal.2d The right to water acquired by prescription extends only 316, 341 [60 P.2d 439], this court said: "The city is a to the quantity actually taken at the time the right

Chase Nielson Page 25 of 27 33 Cal. 2d 908, *949; 207 P.2d 17, **42; 1949 Cal. LEXIS 253, ***76 matured and does not include the taking of an additional years is necessary if the water is to be salvaged in the quantity in the future. ( Burris v. People's Ditch Co., 104 following wet season or cycle. In legal controversies an Cal. 248, 252 [37 P. 922]; North Fork Water Co. v. unreasonable view has been taken in the past in regard Edwards, 121 Cal. 662, 665 [54 P. 69]; Southern Cal. to the necessity of maintaining the water table at the Inv. Co. v. Wilshire, 144 Cal. 68, 72 [77 P. 767]; Wut- 'natural level.'" (P. 469.) And at page 487: "Many of the chumna Water Co. v. Ragle, 148 Cal. 759, 765 [84 P. underground reservoirs are so large that they have 162]; Pabst v. Finmand, 190 Cal. 124, 132 [211 P. 11]; capacity to carry over great quantities of water not only San Bernardino v. Riverside, 186 Cal. 7, 25 [198 P. from a wet season to the following dry season but also 784]; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 from a period of wet years to a period of dry years. Cal.2d 489 [45 P.2d 972, 1014]; Elliott v. Bertsch, 59 However, to utilize these reservoirs fully it is necessary to pump enough water out of them to make room for all Cal.App.2d 543, 547 [139 P.2d 332].) the inflow during the wettest seasons and during the The majority opinion states that the trial court concluded periods of successive years of heavy [***79] that each party owned "by prescription" its "present precipitation. This was well illustrated by some of the unadjusted right," that is, the amount which it had been underground reservoirs of Southern California, whose actually pumping. To reach this result is to say that one water tables, under heavy pumping for irrigation, went down a little lower each summer than they [*951] had may acquire a prescriptive right merely by using the risen in the previous winter, until it appeared that water. As I have [*950] pointed out previously, the use excessive depletion must inevitably compel reduction in must be adverse, [***77] and the persons against irrigation. Then came a period of wet winters when whom the right is gained must have knowledge, either recharge occurred to a remarkable extent and the water actual or constructive. ( City of San Diego v. Cuyamaca levels rose beyond all expectations." Water Co., 209 Cal. 105, 134 [287 P.475].) Adverse use of water involves the invasion of the usufructuary right The language used by this court in City of Lodi v. East of another in a water supply common to both. Bay Mun. Utility Dist., 7 Cal.2d 316, 344 [60 P.2d 439] is Appropriative or prescriptive rights may be invaded only applicable to the contention made by appellants: "In our by interference by another resulting in actual diminution opinion the cause should be sent back to the trial court of the amount of water covered by such right. ( Faulkner to permit it to take evidence as to the levels, to which v. Rondini, 104 Cal. 140, 147 [37 P. 883]; E. [**43] plaintiff's wells may be lowered without substantial Clemens Horst Co. v. Tarr Min. Co., 174 Cal. 430, 440 danger to the city's water supply. In fixing this danger [163 P. 492].) level an adequate safety factor in favor of the city should be allowed. There is no necessity for a retrial of Conceding that a restriction of the water supply was the case on the issues of fact as to which the court has necessary, and assuming for the purpose of argument made extensive findings, as above noted. The facts as only, that the rules as to appropriation should not be thus found may be considered in connection with the applied, the restriction should have been based upon further evidence taken to fix the danger [***80] level of the elevations at appellant's wells rather than limiting it Lodi's wells. The decree should then be reframed to to a specific number of acre feet per year regardless of provide that the duty rests upon the District to maintain the status of the water tables. the levels of the plaintiff's wells above the danger level so fixed by the trial court; that in the event the levels of Professor C. F.Tolman, Professor of Economic Geology the wells reach the danger points, the duty be cast upon at Stanford University, the leading authority on ground the District to supply water to the city, or to raise the water, in his work "Ground Water" says: "It must not be levels of the wells above the danger mark; and if the concluded that a considerable lowering of [***78] the District does not comply with this order within a water table is serious or is detrimental to the water reasonable time, then the injunction decree already supply. Just as a surface reservoir must be drawn down framed, or upon a proper showing as modified by the in order to catch and preserve flood flow, so the court under its continuing jurisdiction, shall go into effect. subsurface-reservoir level (water table) must be lowered The trial court should by its judgment preserve its sufficiently to prevent loss by effluent seepage. A continuing jurisdiction, to change or modify its orders decrease in the area of effluent seepage increases the and decree as occasion may require. area of influent seepage (absorptive area) and in turn increases the rate of ground-water recharge.Adepleted "Such a decree would adequately meet the reservoir at the end of the dry season or cycle of dry requirements of the Constitution by preventing an

Chase Nielson Page 26 of 27 33 Cal. 2d 908, *951; 207 P.2d 17, **43; 1949 Cal. LEXIS 253, ***80 unreasonable waste of the waters of the stream and at not go beyond the danger line. To place the [***83] the same time would adequately protect the prior rights restriction on the water-level basis will save time, money of the City of Lodi. It would afford to the city a and expense. continuance of its water supply, the same, for all practical purposes, as if natural conditions were required to The respondent seeks to answer appellant's contention persist. If its wells go down to the danger level, it would as to the water-level basis of restriction with the immediately [***81] obtain water from the District at the argument that the decree was responsive to the latter's expense, or the injunction decree by means of pleadings "in that each claimed a certain amount of which the underground levels will be artificially water and not that certain water levels should be maintained would go into effect. It would accord to the maintained. As the Western Unit herein considered is District the right and place upon it the duty of working an underground reservoir, the abstraction of an acre out a physical [**44] solution unhampered by a rigid foot of water by one party is to that extent detrimental to decree which, with changing conditions and new the rights of every other party in the Unit." Of course the methods of conservation constantly being developed, parties claimed a certain amount of water; appellant may not operate inequitably but might actually claimed, [*953] and introduced evidence to support the encourage [*952] waste. It would place upon the claim, that, in accordance with the law, a prior District the duty at its expense to maintain the appropriator had a prior right, but the decree is certainly underground water levels, and if the District fails to do not consistent with that claim. so, or fails to supply water directly to the City of Lodi, the In summary, the majority opinion seems to hold that decree provides for compulsory releases so as to "surplus or excess water," without defining it, may be maintain natural conditions. Such a decree would say to appropriated, but no prescriptive right may be acquired the District: You should maintain the water levels so as thereto; that a subsequent appropriator may acquire a not to cause substantial damage to the city, and you prescriptive right against a prior appropriator of may do this in any way best suited to your needs, or if percolating water even though the prior appropriator you do not maintain those levels you should supplement has continued to divert and use his full appropriative the city's supply to the extent of the deficiency caused right [***84] and has never been deprived of any portion by your operations by the furnishing of water by artificial of the quantity of water so appropriated by him; that an means and at your expense. If you do not do these overlying owner may acquire a prescriptive right against things you are subject [***82] to an injunction compelling another overlying owner who is using water from the releases to maintain natural conditions. Such a decree same underground basin even though each has diverted would undoubtedly prevent a multiplicity of suits. It and used the full quantity of water he could put to a would fix the rights of the prior appropriator and would beneficial use; that an overlying owner may acquire a determine the effect of the subsequent appropriator's right by prescription against a prior or subsequent diversions. Since there is no immediate danger to the appropriator and that the latter may acquire such a right prior appropriator, it would fix the danger levels of the against the former even though each has diverted and prior appropriator's wells and when that level is reached, used the full quantity of water that he could reasonably upon a showing to that effect, it would require the put to beneficial use. Obviously, the effect of this holding subsequent appropriator either by direct delivery of is to place upon an equal footing users who have water or by compulsory releases to supply the prior diverted and used a given quantity of water from an appropriator's needs. underground basin for a continuous period of five years regardless of the origin or period of time during which "Such a decree would permit the full use of all available the diversions were made. This holding does not find waters, guarantee to the prior appropriator full support in a single authority or decision of any court in protection, and would do this without unduly restraining any common law jurisdiction since court decisions have the operations of the subsequent appropriator." been published. On the other hand, it is contrary [**45] To accomplish the restriction by requiring appellant to to every decision which has ever been rendered by the maintain a certain level in its wells is a far more equitable courts of this state and every other jurisdiction which solution than that proposed by the majority. In the first [***85] has considered the subject. Viewed in relation to instance, during wet years he may, without court action, the practical aspect of the case and the physical pump as much water as he has need for; in dry years, situation which must exist in every case of this character, he will know exactly where he stands and that he may the effect of this holding is to overrule every decision

Chase Nielson Page 27 of 27 33 Cal. 2d 908, *953; 207 P.2d 17, **45; 1949 Cal. LEXIS 253, ***85 which has been rendered by this court in cases where between appropriators, the one first in time is first in similar factual situations existed. We must assume that, right." ( Wishon v. Globe Light & Power Co., 158 Cal. in a state of nature, the underground basin here involved 137 [110 P. 290]; San Bernardino v. Riverside, 186 Cal. was full of water in normal years of precipitation and 7 [198 P. 784]; Meridian, Ltd. v. San Francisco, 13 runoff; that is, the water would be up to the top of the rim Cal.2d 424 [90 P.2d 537, 91 P.2d 105]; Sherwood v. which confined it to the basin area. If all users from such Wood, 38 Cal.App. 745 [177 P. 491]; Jones v. Pleasant a basin were overlying land owners, then under the Valley Canal Co., 44 Cal.App.2d 798 [113 P.2d 289].) settled rules of law as announced by this court, the Not only is the above cited section of the Civil Code rights of such users would be equal and correlative, and completely abrogated and nullified, but all of the above no user would have a prior or superior right to the other. cited cases are, in effect, overruled by the majority ( San Bernardino v. Riverside, 186 Cal. 7 [198 P. 784]; decision in this case. Burr v. Maclay, 154 Cal. 428, 439 [98 P. 260]; Katz The effect of the majority decision is to say to the [*954] v. Walkinshaw, 141 Cal. 116 [70 P. 663, 74 P. overlying owners of land situated on an underground 766, 99 Am.St.Rep. 35, 64 L.R.A. 236].) Then an basin filled with percolating waters, that: "You have no appropriator comes into the picture. I mean by [***88] cause of action against an appropriator of "appropriator," one who diverts and uses water on water for a non-overlying use unless you [*955] can nonoverlying land. Obviously, the same rule does not show that he is taking other than excess or surplus apply to him as to an [***86] overlying owner because water, but if you do not commence an action to restrain his use is clearly adverse to the latter, unless there is such diversion, such an appropriator may obtain a surplus or excess water in the basin, and this presents prescriptive right against you if it should later be a most complex problem -- one which it may take years determined that he is taking water to which you and to solve. Its solution depends upon many factors, such other overlying land owners may be entitled." Anyone as topography, the area and depth of the basin, the who has the slightest knowledge of situations of this quantity and source of supply, the outflow, if any, the character should realize that this would place an character of use by the overlying owners, the type of impossible burden upon the overlying land owner and crops raised, and various other factors which may not greatly jeopardize his rights. His difficulty would be be immediately apparent. This court has held, and in my multiplied if there were a number of overlying owners opinion correctly, that any appropriation made taking water from the same basin. Obviously, the subsequent to the vesting of title in an overlying owner overlying land owner should have an immediate cause is adverse to such overlying owner and gives rise to an of action against the appropriator, and the burden should immediate cause of action on his behalf ( San Bernar- be on the latter to show that he is taking only surplus or dino v. Riverside, 186 Cal. 7 [198 P. 784]; Burr v. Maclay excess water or cease his diversion. [**46] So far as Rancho Water Co., 154 Cal. 428, 439 [98 P. 260]; Katz subsequent appropriators are concerned, the prior v. Walkinshaw, 141 Cal. 116 [70 P. 663, 74 P. 766, 99 appropriator should have the right to rely upon section Am.St.Rep. 35, 64 L.R.A. 236]; Miller v. Bay Cities 1414 of the Civil Code and the above cited authorities Water Co., 157 Cal. 256 [107 P. 115, 27 L.R.A.N.S. which should vouchsafe to him a prior and superior right 772]; McClintock v. Hudson, 141 Cal. 275, 281 [74 P. based upon his prior appropriation. 849]; Cohen v. LaCanada etc. Co., 142 Cal. 437 [76 P. 47]; Montecito etc. Co. v. [***87] Santa Barbara, 144 [***89] Since the decision of the trial court, which is Cal. 578, 584 [77 P. 1113]; Verdugo Canon Water Co. v. affirmed by the majority decision of this court, is Verdugo, 152 Cal. 655 [93 P. 1021]; Hudson v. Dailey, completely out of harmony with every statute, principle 156 Cal. 617 [105 P. 748]), because such use will and rule of law which has heretofore been enacted and necessarily ripen into a right by prescription against promulgated, I would reverse the judgment and remand such overlying owner in five years. This is not true as the cause for a new trial in accordance with what should between appropriators, as the rule always has been, as be the settled law of this state. declared in section 1414 of the Civil Code, that "As

Chase Nielson User Name: Chase Nielson Date and Time: 06 Jul 2016 3:11 p.m. MDT Job Number: 34385519

Document(1)

1. United States v. Washington, 2003 U.S. Dist. LEXIS 28980 Client/Matter: -None- Search Terms: 2003 U.S. Dist. LEXIS 28980. Search Type: Natural Language

United States v. Washington United States District Court for the Western District of Washington February 21, 2003, Decided; February 24, 2003, Filed No. C01-0047Z

Reporter 2003 U.S. Dist. LEXIS 28980 UNITED STATES, in its own right and on behalf of the ATTORNEY, US DEPARTMENT OF JUSTICE (ENRD - Lummi Indian Nation, Plaintiff, LUMMI INDIAN NATION, BOX 44378), ENRD INDIAN RESOURCES SECTION, Plaintiff-Intervenor, v. STATE OF WASHINGTON, WASHINGTON, DC; Jane Marx, LEAD ATTORNEY, DEPARTMENT OF ECOLOGY, et al., Defendants. LAW OFFICE OF JANE MARX, ALBUQUERQUE, NM; Susan M Williams, LEAD ATTORNEY, WILLIAMS & Subsequent History: Later proceeding at United WORKS P A, CORRALES, NM; Charles E O'Connell, States v. Washington, 375 F. Supp. 2d 1050, 2005 U.S. Jr, US DEPARTMENT OF JUSTICE, ENVIRONMENT Dist. LEXIS 10311 (W.D. Wash., 2005) & NATURAL RESOURCES DIVISION, WASHINGTON, DC; Judith K Bush, LUMMI INDIAN NATION, Core Terms BELLINGHAM, WA. For Lummi Nation, Intervenor Plaintiff: Judith K Bush, reservation, groundwater, Treaty, surface water, tribe, LEAD ATTORNEY, [*2] LUMMI INDIAN NATION, water rights, summary judgment motion, argues, BELLINGHAM, WA; Diana Rae Bob, LUMMI INDIAN agriculture, irrigable, equities, rights, non-Indians, NATION, BELLINGHAM, WA; Jane Marx, LAW OFFICE domestic, negotiations, references, reserved water OF JANE MARX, ALBUQUERQUE, NM; Susan M rights doctrine, practicably, withdraw, parties, DENIES, Williams, WILLIAMS & WORKS P A, CORRALES, NM; partial summary judgment, reserved right, material fact, Harry L Johnsen, III, RAAS JOHNSEN & STUEN, balancing, connected, purposes, acreage, fulfill, BELLINGHAM, WA. genuine For Ecology Department of the State of Washington, Counsel: [*1] For Water Master John E. Thorson, Defendant: Thomas J Young, LEAD ATTORNEY, Special Master: John E Thorson, LUMMI DECREE ATTORNEY GENERAL'S OFFICE (40117-OLY), WATER MASTER, PLAINS, MT. OLYMPIA, WA; Barbara A Markham, ATTORNEY GENERAL'S OFFICE, OLYMPIA, WA; Lucy P. Isaki, STATE OF WASHINGTON, OFFICE OF FINANCIAL For United States of America, in its own right and on MANAGEMENT, OLYMPIA, WA; Travis H Burns, behalf of the Lummi Nation, Plaintiff: Brian C Kipnis, WASHINGTON, ATTORNEY GENERAL'S OFFICE, LEAD ATTORNEY, US ATTORNEY'S OFFICE (SEA), OLYMPIA, WA. SEATTLE, WA; James B Cooney, LEAD ATTORNEY, US DEPARTMENT OF JUSTICE (ENRD - BOX 44378), For Georgia Manor Water Assoc, Defendant: James ENRDINDIANRESOURCESSECTION, Martin Johnson, JAMES M JOHNSON, OLYMPIA, WA; WASHINGTON, DC; Charles E O'Connell, Jr, US John Timothy Slater, SLATER LAW FIRM PS, DEPARTMENT OF JUSTICE, ENVIRONMENT & BELLINGHAM, WA; Philip James Buri, BURI FUNSTON NATURAL RESOURCES DIVISION, WASHINGTON, MUMFORD, BELLINGHAM, WA. DC. For Gooseberry Point Community and Water For USA in its own right and on behalf of Lummi Nation, Association, Defendant: Rolf G. Beckhusen, Jr., LEAD Plaintiff: Brian C Kipnis, LEAD ATTORNEY, US ATTORNEY, BELLINGHAM, WA; James Martin ATTORNEY'S OFFICE (SEA), SEATTLE, WA; Harry L Johnson, JAMES M JOHNSON, OLYMPIA, WA; John Johnsen, III, LEAD ATTORNEY, RAAS JOHNSEN & Timothy Slater, SLATER LAW FIRM PS, BELLINGHAM, STUEN, BELLINGHAM, WA; James B Cooney, LEAD WA.

Chase Nielson Page 2 of 22 2003 U.S. Dist. LEXIS 28980, *3

Leeward-Northgate Water Association, Defendant, Pro Robert D Bezona, Defendant, Pro se, BELLINGHAM, se, BELLINGHAM, WA. WA.

Nicole Autry, Defendant, Pro se, OLYMPIA, WA. For Robert D Bezona, Defendant: Charles W Lean, OLYMPIA, WA. For Nicole Autry, Defendant: Eugene H. Knapp, [*3] Jr., BELLINGHAM, WA. Gerald R [*4] Boyd, Defendant, Pro se, BELLINGHAM, WA. Steven S Axtell, Defendant, Pro se, BELLINGHAM, WA. For Gerald R Boyd, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Steven S Axtell, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Myron E Carr, Defendant, Pro se, BELLINGHAM, WA.

Dale Bartel, Defendant, Pro se, BELLINGHAM, WA. For Myron E Carr, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Dale Bartel, Defendant: Charles W Lean, OLYMPIA, PLLC, BELLINGHAM, WA. WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Marilyn J Carr, Defendant, Pro se, BELLINGHAM, WA.

Angie Bartel, Defendant, Pro se, BELLINGHAM, WA. For Marilyn J Carr, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Angie Bartel, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Robert F Costello, Defendant: Charles W Lean, OLYMPIA, WA. For Larry J Berghoff, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Edith L Costello, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA. For Patricia A Marek, Defendant: Charles W Lean, For Donald H Curtis, Defendant: Charles W Lean, OLYMPIA, WA. OLYMPIA, WA. Bernard M Fernandez, Defendant, Pro se, BELLINGHAM, WA. For Lucille L Curtis, Defendant: Charles W Lean, OLYMPIA, WA. For Bernard M Fernandez, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Richard Dawson, Defendant, Pro se, FERNDALE, WA. PLLC, BELLINGHAM, WA. Marlene Dawson, Defendant, Pro se, FERNDALE, WA. Lesli M Higginson, Defendant, Pro se, BELLINGHAM, WA. Humberto Del Castillo, Defendant, Pro se, FERNDALE, WA. For Lesli M Higginson, Defendant: Charles W Lean, OLYMPIA, WA. For Humberto Del Castillo, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Michael G Bezona, Defendant, Pro se, BELLINGHAM, PLLC, BELLINGHAM, WA. WA. Dorothy D Drumheller, Defendant, Pro se, D Kim Bezona, Defendant, Pro se, BELLINGHAM, WA. BELLINGHAM, WA.

Chase Nielson Page 3 of 22 2003 U.S. Dist. LEXIS 28980, *4

For Dorothy D Drumheller, Defendant: Charles W Lean, For Cheryl Hahney, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, [*6] Jr., BD LAW PLLC, BELLINGHAM, WA. GROUP PLLC, BELLINGHAM, WA.

Nelly D Cunningham, Defendant, [*5] Pro se, William S Hamilton, Defendant, Pro se, BELLINGHAM, BELLINGHAM, WA. WA.

For Nelly D Cunningham, Defendant: Charles W Lean, Helen M Hamilton, Defendant, Pro se, BELLINGHAM, OLYMPIA, WA. WA. Robert N Earl, Defendant, Pro se, BELLINGHAM, WA. For Larry G Harriman, Defendant: Charles W Lean, For Robert N Earl, Defendant: Charles W Lean, OLYMPIA, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Gloria A Harriman, Defendant: Charles W Lean, OLYMPIA, WA. For Roberta Wade-Earl, Defendant: Charles W Lean, OLYMPIA, WA. Michael R Heintz, Defendant, Pro se, BELLINGHAM, WA. Walter A Edson, Defendant, Pro se, KENMORE, WA. Kristine A Heintz, Defendant, Pro se, BELLINGHAM, For Walter A Edson, Defendant: Charles W Lean, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Richard W Hinshaw, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Madsen Rev Trust Everett L & Shirley D, Defendant, PLLC, BELLINGHAM, WA. Pro se, BELLINGHAM, WA. For Margaret A Hinshaw, Defendant: Charles W Lean, For Madsen Rev Trust Everett L & Shirley D, Defendant: OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., PLLC, BELLINGHAM, WA. BD LAW GROUP PLLC, BELLINGHAM, WA.

John G Hoffmann, Defendant, Pro se, BELLINGHAM, For Rodney Fadden, Defendant: Charles W Lean, WA. OLYMPIA, WA.

For Lea Ann Fadden, Defendant: Charles W Lean, For John G Hoffmann, Defendant: Charles W Lean, OLYMPIA, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Richard C George, Defendant, Pro se, BELLINGHAM, WA. Suzanne Hoffmann, Defendant, Pro se, BELLINGHAM, WA. Lana L George, Defendant, Pro se, BELLINGHAM, WA. For Suzanne Hoffmann, Defendant: Charles W Lean, Larry A Gustafson, Defendant, Pro se, BELLINGHAM, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP WA. PLLC, BELLINGHAM, WA.

Robyn G Gustafson, Defendant, Pro se, BELLINGHAM, Steve H Hovander, Defendant, Pro se, FERNDALE, WA. WA.

For Thomas M Hahney, Defendant: Charles W Lean, For Steve H Hovander, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA. PLLC, BELLINGHAM, WA.

Chase Nielson Page 4 of 22 2003 U.S. Dist. LEXIS 28980, *6

For Victor Hubbard, Defendant: Philip James Buri, LEAD Terry Knight, Defendant, Pro se, FREELAND, WA. ATTORNEY, BURI FUNSTON MUMFORD, BELLINGHAM, WA. For Terry Knight, Defendant: Charles W Lean, OLYMPIA, WA. For Robert D Huizenga, Defendant: Charles [*7] W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW For Horst J Kosel, Defendant: Charles W Lean, GROUP PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Janet C Ott, Defendant, Pro se, BELLINGHAM, WA. For Carolla Kosel, Defendant: Charles W Lean, For Janet C Ott, Defendant: Charles W Lean, OLYMPIA, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, PLLC, BELLINGHAM, WA. BELLINGHAM, WA. Fred C Larsen, Defendant, Pro se, BELLINGHAM, WA. Joanne J Kotjan, Jt, Defendant, Pro se, BELLINGHAM, WA. For Terry Martens, Defendant: Charles W Lean, OLYMPIA, WA. For Joanne J Kotjan, Jt, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Ramona D Martens, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA.

Ervin J Jindrich, Defendant, Pro se, MILL VALLEY, CA. For Albert E Martin, Defendant: Charles W Lean, OLYMPIA, WA. Denise L Jindrich, Defendant, Pro se, MILL VALLEY, CA. For Deirdre Delaplace, Defendant: Charles W Lean, OLYMPIA, WA. For Michael D Johnson, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Chuck R Mccord, Defendant, Pro se, BELLINGHAM, PLLC, BELLINGHAM, WA. WA.

Robert A Kandiko, Defendant, Pro se, BELLINGHAM, For Robert C Merhaut, Defendant: Charles W Lean, WA. OLYMPIA, WA.

For Robert A Kandiko, Defendant: Charles W Lean, For Rebecca L Merhaut, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA. PLLC, BELLINGHAM, WA. For Kathryn A Moffett, Defendant: Charles W Lean, For Sidney H Nesbit, Defendant: Charles W Lean, OLYMPIA, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Gerald Moore, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Richard L King, Defendant, Pro se, BELLIGHAM, WA. PLLC, BELLINGHAM, WA.

For Richard L King, Defendant: Charles W Lean, Edna P Morse, Defendant, Pro se, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Edna P Morse, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Linda L King, Defendant, Pro se, BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

For Linda L King, Defendant: Charles W Lean, For John Munson, [*9] Defendant: Charles W Lean, OLYMPIA, WA; Eugene [*8] H. Knapp, Jr., BD LAW OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

Chase Nielson Page 5 of 22 2003 U.S. Dist. LEXIS 28980, *9

For Kathrine Munson, Defendant: Charles W Lean, Debra J Schleitweiler, Defendant, Pro se, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP BELLINGHAM, WA. PLLC, BELLINGHAM, WA. William C Schnobrich, Defendant, Pro se, FERNDALE, Joyce A Nielsen, Defendant, Pro se, BELLINGHAM, WA. WA. For William C Schnobrich, Defendant: Charles W Lean, For Joyce A Nielsen, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Sally R Schnobrich, Defendant, Pro se, FERNDALE, WA. Brian NM Oliver, Defendant, Pro se, BELLINGHAM, WA. For Sally R Schnobrich, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Brian NM Oliver, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Cecil C Shields, Defendant, Pro se, BELLINGHAM, WA. Larry R Olsen, Defendant, Pro se, BELLINGHAM, WA. For Cecil C Shields, Defendant: Charles W Lean, For Larry R Olsen, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. David E Snead, Defendant, Pro se, FERNDALE, WA. For Peter Osvaldik, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For David E Snead, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA.

For John Randel, Defendant: Charles W Lean, Ruth L Snead, Defendant, Pro se, FERNDALE, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Sunset WaterAssn, Defendant: John Timothy Slater, LEAD ATTORNEY, SLATER LAW FIRM PS, Brett L Randmel, Defendant, Pro se, BELLINGHAM, BELLINGHAM, WA; Philip James Buri, BURI FUNSTON WA. MUMFORD, BELLINGHAM, WA.

For Brett L Randmel, Defendant: Charles W Lean, Terry N Taylor, Defendant, Pro se, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. James K Temple, [*11] Defendant, Pro se, BELLINGHAM. Michael L Ring, Defendant, Pro se, BELLINGHAM, WA. For James K Temple, Defendant: Charles W Lean, For Michael L Ring, Defendant: Charles W [*10] Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. For Mike A Thomas, Defendant: Charles W Lean, Richard Schleitweiler, Defendant, Pro se, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

For Richard Schleitweiler, Defendant: Charles W Lean, For Terri A Thomas, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

Chase Nielson Page 6 of 22 2003 U.S. Dist. LEXIS 28980, *11

For Thomas K Thrall, Defendant: Charles W Lean, Kimberlee S Walker, Defendant, Pro se, BELLINGHAM, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP WA. PLLC, BELLINGHAM, WA. For Kimberlee S Walker, Defendant: Charles W Lean, For James D Tracy, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. Donald Weber, Defendant, Pro se, BELLINGHAM, WA. Leana G Tracy, Defendant, Pro se, BELLINGHAM, WA. For Donald Weber, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Leana G Tracy, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Kathleen K Weber, Defendant, Pro se, BELLINGHAM, WA. Matreck C Trecker, Defendant, Pro se, BELLINGHAM, WA. For Kathleen K Weber, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Matreck C Trecker, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. John W Whiteley, Defendant, Pro se, BELLINGHAM, WA. For John H Van Boven, Defendant: Charles W Lean, OLYMPIA, WA. For John W Whiteley, Defendant: Charles W Lean, OLYMPIA, WA. For Gladys L Van Boven, Defendant: Charles W Lean, OLYMPIA, WA. For Clifford W Whitney, Defendant: Charles W Lean, OLYMPIA, WA. Paul Enfield, Defendant, Pro se, BELLINGHAM, WA. Lillian G Whitney, Defendant, Pro se, BELLINGHAM, For Paul Enfield, Defendant: Charles W Lean, [*13] WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD [*12] LAW GROUP PLLC, BELLINGHAM, WA. For Martin L Wormald, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Mary Enfield, Defendant, Pro se, BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

For Mary Enfield, Defendant: Charles W Lean, For Lori Takeoka, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

For Richard E Wales, Defendant: Charles W Lean, For Zephyr Investments Inc, Defendant: Charles W OLYMPIA, WA. Lean, OLYMPIA, WA.

For Alice N Wales, Defendant: Charles W Lean, 1659 Holdings Ltd, Defendant, Pro se, PORT OLYMPIA, WA. COQUITLAM, BC.

Wayne W Walker, Defendant, Pro se, BELLINGHAM, Bel Bay Community and Water Assoc, Defendant, Pro WA. se, BELLINGHAM, WA.

For Wayne W Walker, Defendant: Charles W Lean, For Bel Bay Community and Water Assoc, Defendant: OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., PLLC, BELLINGHAM, WA. BD LAW GROUP PLLC, BELLINGHAM, WA.

Chase Nielson Page 7 of 22 2003 U.S. Dist. LEXIS 28980, *13

For Gulfside Mobile Home Park, Defendant: Charles W For Robert F Gutierrez, Defendant: Charles W Lean, Lean, OLYMPIA, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Harnden Island View WaterAssociation, Defendant: John Timothy Slater, LEAD ATTORNEY, SLATER LAW Eva Gutierrez, Defendant, Pro se, SEATTLE, WA. FIRM PS, BELLINGHAM, WA; Philip James Buri, BURI FUNSTON MUMFORD, BELLINGHAM, WA. For Eva Gutierrez, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Concetta J Blaine, Defendant, Pro se, SEATTLE, WA. PLLC, BELLINGHAM, WA.

Jack D Brooks, Defendant, Pro se, BELLINGHAM, WA. James E LeSage, Defendant, Pro se, ISSAQUAH, WA.

For Jack D Brooks, Defendant: Eugene H. Knapp, Jr., For James E LeSage, Defendant: Charles W Lean, BD LAW GROUP PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. [*15] Lois Brooks, Defendant, Pro se, BELLINGHAM, WA. Hui-Ying T Lesage, Defendant, Pro se, ISSAQUAH, For Lois Brooks, Defendant: Charles W Lean, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Hui-Ying T Lesage, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For James L Buizer, Defendant: Charles W [*14] Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Douglas B Smith, Defendant, Pro se, BELLINGHAM, PLLC, BELLINGHAM, WA. WA. For Dee Buizer, Defendant: Charles W Lean, OLYMPIA, For Douglas B Smith, Defendant: Charles W Lean, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

Stanley D Campbell, Defendant, Pro se, BELLINGHAM, Linda P Smith, Defendant, Pro se, BELLINGHAM, WA. WA. For Linda P Smith, Defendant: Charles W Lean, For Stanley D Campbell, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. For Randall L Stocker, Defendant: Charles W Lean, For Kay L Campbell, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. For Debbra A Wittig, Defendant: Charles W Lean, For Dale Fullner, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. Matthew Alexander, Defendant, Pro se, CANADA. For Rita Fullner, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, Lois Aminikharrazi Lois Rev Trust, Defendant, Pro se, BELLINGHAM, WA. GILMER, TX.

Robert F Gutierrez, Defendant, Pro se, SEATTLE, WA. Chandos Maree, Defendant, Pro se, BELLINGHAM, WA.

Chase Nielson Page 8 of 22 2003 U.S. Dist. LEXIS 28980, *15

For Ralph W Barker, Defendant: Charles W Lean, Mildred K Clark, Defendant, Pro se, BELLINGHAM, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP WA. PLLC, BELLINGHAM, WA. For Mildred K Clark, Defendant: Charles W Lean, For Ruth M Barker, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. Gretchen Lux, Defendant, Pro se, OLYMPIA, WA. Bert Family Trust, Defendant, Pro se, DEMING, WA.

Albert Coghill, [*17] Defendant, Pro se, BURLINGTON, Jeremy W Bert, Trustee, [*16] Defendant, Pro se, WA. DEMING, WA.

Colette A Bert, Trustee, Defendant, Pro se, DEMING, For Albert Coghill, Defendant: Charles W Lean, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Craig E Bessire, Defendant, Pro se, BELLINGHAM, WA. A B Coghill, Defendant, Pro se, BURLINGTON, WA.

Barbara J Bessire, Defendant, Pro se, BELLINGHAM, For A B Coghill, Defendant: Charles W Lean, OLYMPIA, WA. WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Natalie Rutledge, Defendant: Jack O. Swanson, BELCHER SWANSON LACKEY DORAN LEWIS & ForAM Coghill, Defendant: Charles W Lean, OLYMPIA, ROBERTSON. BELLINGHAM, WA. WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Richard L Boersma, Defendant, Pro se. Troy D Curran, Defendant, Pro se, BELLINGHAM, WA. For Richard L Boersma, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Troy D Curran, Defendant: Charles W Lean, PLLC, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Christina M Ysaguirre-Boersma, Defendant, Pro se, BELLINGHAM, WA. For Brandi Curran, Defendant: Eugene H. Knapp, Jr., For Christina M Ysaguirre-Boersma, Defendant: Charles BD LAW GROUP PLLC, BELLINGHAM, WA. W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Frank Dance, Defendant, Pro se, CANADA.

Richard J Borsini, Defendant, Pro se, PORT LUDLOW, Kenneth G Dawson, Defendant, Pro se, BELLINGHAM, WA. WA.

Richard Bremer, Defendant, Pro se, BELLINGHAM, Anna J Dawson, Defendant, Pro se, BELLINGHAM, WA. WA.

Marion Bremer, Defendant, Pro se, BELLINGHAM, WA. For Dennis L Demorest, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Jeffrey Clark, Defendant, Pro se, BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

For Jeffrey Clark, Defendant: Charles W Lean, Barbara L Demorest, Defendant, Pro se, BELLINGHAM, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP WA. PLLC, BELLINGHAM, WA.

Chase Nielson Page 9 of 22 2003 U.S. Dist. LEXIS 28980, *17

For Barbara L Demorest, Defendant: Charles W Lean, For Patricia A Haensly, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP OLYMPIA, WA; Eugene [*19] H. Knapp, Jr., BD LAW PLLC, BELLINGHAM, WA. GROUP PLLC, BELLINGHAM, WA.

Kevin M Dickerson, Defendant, Pro se, BELLINGHAM, Kenny Handy, Defendant, Pro se, SEDRO WOOLLEY, WA. WA.

For Kevin M Dickerson, Defendant: Charles [*18] W For Kenny Handy, Defendant: Charles W Lean, Lean, OLYMPIA, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Dean D Donnelly, Defendant: Nancy M Neal, LESTER & HYLDAHL PLLC, BELLINGHAM, WA. Nancy E Jackson, Defendant, Pro se, SEDRO WOOLLEY, WA. For Catherine R Donnelly, Defendant: Nancy M Neal, LESTER & HYLDAHL PLLC, BELLINGHAM, WA. For Nancy E Jackson, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Robert E Doucette, Defendant, Pro se, BELLINGHAM, PLLC, BELLINGHAM, WA. WA. Gloria Hanson, Defendant, Pro se, BELLINGHAM, WA. Phillip J Elgin, Defendant, Pro se, BELLINGHAM, WA. Shawn Hillis, Defendant, Pro se, MILL CREEK, WA. For Phillip J Elgin, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Laura Hillis, Defendant, Pro se, MILL CREEK, WA. PLLC, BELLINGHAM, WA. Dennis L Hoofnagle, Defendant, Pro se, BELLINGHAM, For Joy H Ellis, Defendant: Ernest A. Bentley, WA. BELLINGHAM, WA. Max W Hurren, Defendant, Pro se, NORTH For Federal National Mortgage Association, Defendant: VANCOUVER, BC. Daryl W Lyman, LEAD ATTORNEY, FIRST AMERICAN TITLE, SEATTLE, WA; Matthew Alan Love, LEAD Quang Vuong, Defendant, Pro se, SEATTLE, WA. ATTORNEY, VAN NESS FELDMAN, LLP, SEATTLE, WA. Ha Tu Huynh, Defendant, Pro se, SEATTLE, WA.

Clifford D Fisher, Defendant, Pro se, W LAFAYETTE, Harold J Jeffries, Defendant, Pro se, FERNDALE, WA. IN. Jennifer Jeffries, Defendant, Pro se, FERNDALE, WA. Damien Fisher, Defendant, Pro se, SEATTLE, WA. George E Johnson, Defendant, Pro se, BELLINGHAM, Britt Fisher, Defendant, Pro se, LAKE STEVENS, WA. WA.

For Joanne L Freeman, Defendant: Charles W Lean, Marion E Johnson, Defendant, Pro se, BELLINGHAM, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP WA. PLLC, BELLINGHAM, WA. Raymond R Kendall, Defendant, Pro se, FERNDALE, For John P Gunderson, Defendant: Gregory L. Kosanke, WA. LEAD ATTORNEY, SMITH KOSANKE & WRIGHT, LYNDEN, WA. Barbara A Kendall, Defendant, Pro se, FERNDALE, WA. For Gundies Inc, Defendant: Gregory L. Kosanke, LEAD ATTORNEY, SMITH KOSANKE & WRIGHT, LYNDEN, For Kathleen J Kennedy, Defendant: Eugene H. Knapp, WA. Jr., BD LAW GROUP PLLC, BELLINGHAM, WA.

Chase Nielson Page 10 of 22 2003 U.S. Dist. LEXIS 28980, *19

Monte R Littleton, Defendant, Pro se, BELLINGHAM, For Pacific NW Bell, Defendant: Catherine L Brabson, WA. LEAD ATTORNEY, HOLME ROBERTS & OWEN (UT), SALT LAKE CITY, UT; Jody L Williams, LEAD For Monte R Littleton, Defendant: [*20] Charles W ATTORNEY, HOLME ROBERTS & OWEN (UT), SALT Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW LAKE CITY, UT; Steven J Vuyovich, LEAD ATTORNEY, GROUP PLLC, BELLINGHAM, WA. HOLME ROBERTS & OWEN (UT), SALT LAKE CITY, UT; Gary Jan Strauss, GARVEY SCHUBERT BARER, SEATTLE, WA. For Julie Littleton, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For US West Communications Group Inc, Defendant: PLLC, BELLINGHAM, WA. Catherine L Brabson, LEAD ATTORNEY, HOLME ROBERTS & OWEN (UT), SALT LAKE CITY, UT; Jody Jerry V Lowe, Defendant, Pro se, BELLINGHAM, WA. L Williams, LEAD ATTORNEY, HOLME ROBERTS & OWEN (UT), SALT LAKE CITY, UT; Steven J Vuyovich, For Jerry V Lowe, Defendant: Charles W Lean, LEAD ATTORNEY, HOLME ROBERTS & OWEN (UT), OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP SALT LAKE CITY, UT; Gary Jan Strauss, GARVEY PLLC, BELLINGHAM, WA. SCHUBERT BARER, SEATTLE, WA.

EdwardAMcCaffery, Defendant, Pro se, BELLINGHAM, Aleda A Rabel, Defendant, Pro se, BELLINGHAM, WA. WA. For Aleda A Rabel, Defendant: Robert McKevitt Zoffel, Jean G McCaffery, Defendant, Pro se, BELLINGHAM, SEATTLE, WA. WA. For Jennifer A Reed, Defendant: Charles W Lean, James E Miles, Defendant, Pro se, BELLINGHAM, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For James E Miles, Defendant: James G. Bell, LEAD ATTORNEY, LUDWIGSON, THOMPSON, HAYES & For RIJ Contracts Trust, Defendant: Charles W Lean, BELL, BELLINGHAM, WA. OLYMPIA, WA.

Jeffrey K Mock, Defendant, Pro se, BELLEVUE, WA. For Susan K Kennedy, Defendant: Charles W Lean, OLYMPIA, WA. John B Moss, Defendant, Pro se, MOYIE SPRINGS, ID. Terry W Roal, Defendant, Pro se, OWENS CROSS ROADS, AL. Mary Moss, Defendant, Pro se, MOYIE SPRINGS, ID. For Carl F Roehl Trust, Defendant: Carl F. Roehl, Jr., Stacy Neal, Defendant, Pro se, BELLINGHAM, WA. LEAD ATTORNEY, BELLINGHAM, WA.

For Nielsen Brothers Inc, Defendant: Charles W Lean, For William [*22] P Roehl, Defendant: Carl F. Roehl, Jr., OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP LEAD ATTORNEY, BELLINGHAM, WA. PLLC, BELLINGHAM, WA. Bonnie J Rogers, Defendant, Pro se, FERNDALE, WA. Eunice I Olsen, Party deceased, Defendant, Pro se, BELLINGHAM, WA. Reuben W Rudy, Defendant, Pro se, BELLINGHAM, WA. For Eunice I Olsen, Party deceased, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD Richard E Schmidt, Defendant, Pro se, BELLINGHAM, LAW GROUP PLLC, BELLINGHAM, WA. WA.

Erin Osborn, doing business as, Puddle Jumper Farms, For Richard E Schmidt, Defendant: Charles W Lean, Defendant, [*21] Pro se, BELLINGHAM, WA. OLYMPIA, WA.

Chase Nielson Page 11 of 22 2003 U.S. Dist. LEXIS 28980, *22

For M Carol Schmidt, Defendant: Charles W Lean, For Gwendolyn A Van de Kieft, Defendant: Keith A OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Bode, Lynden, WA. PLLC, BELLINGHAM, WA. Daniel J Vanweerdhuizen, Defendant, Pro se, William D Smith, Defendant, Pro se, BELLINGHAM, FERNDALE, WA. WA. Kevin Vermillion, Defendant, Pro se, BELLINGHAM, For William D Smith, Defendant: Charles W Lean, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Kevin Vermillion, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Linnea G Smith, Defendant, Pro se, BELLINGHAM, PLLC, BELLINGHAM, WA. WA. Mary Vermillion, Defendant, Pro se, BELLINGHAM, For Linnea G Smith, Defendant: Charles W Lean, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Mary Vermillion, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Mabel D Stauffer, Defendant: Jacob L. Smith, Jr., PLLC, BELLINGHAM, WA. LEAD ATTORNEY, SMITH KOSANKE & WRIGHT, LYNDEN, WA. David A Ware, Defendant, Pro se, BELLINGHAM, WA.

Peter E Stephenson, Defendant, Pro se, BELLINGHAM, Joseph E Washington, Defendant, Pro se, WA. BELLINGHAM, WA.

Ellen S Stephenson, Defendant, Pro se, BELLINGHAM, For Washington Mutual Bank Inc, Defendant: David A WA. Weibel, LEAD ATTORNEY, BISHOP WHITE MARSHALL & WEIBEL, PS, SEATTLE, WA; Mark J For Betty A Swanson, Defendant: Carl F. Roehl, Jr., Phelps, LEAD ATTORNEY, FIDELITY NATIONAL LAW LEAD ATTORNEY, BELLINGHAM, WA. GROUP, SEATTLE, WA.

For Jerome L Wilson, Defendant: Carl F. Roehl, Jr., For Sollynd Weatherall, Defendant: Charles W Lean, LEAD ATTORNEY, BELLINGHAM, WA. OLYMPIA, WA.

For Mary Wilson, Defendant: Carl F. Roehl, Jr., LEAD Mark Weilage, Defendant, Pro se, BELLINGHAMQ, ATTORNEY, BELLINGHAM, WA. WA.

Yvonne J Solomon, [*23] Defendant, Pro se, Kathryn Weilage, Defendant, Pro se, [*24] BELLINGHAM, WA. BELLINGHAM, WA.

Trevor Thompson, Pro se. Mark R Weinberg, Defendant, Pro se, BELLINGHAM, WA. For Trevor Thompson Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Western Foundation Inc, Defendant: John Steffan PLLC, BELLINGHAM, WA. Ludwigson, LEAD ATTORNEY, LUDWIGSON, THOMPSON, HAYES & BELL, BELLINGHAM, WA. For Miranda Egan, Defendant: Charles W Lean, OLYMPIA, WA. For County of Whatcom, Defendant: David M. Grant, LEAD ATTORNEY, WHATCOM COUNTY For Howard W Van de Kieft, Defendant: Keith A Bode, PROSECUTING ATTORNEY'S OFFICE, Lynden, WA. BELLINGHAM, WA; Randall J Watts, LEAD

Chase Nielson Page 12 of 22 2003 U.S. Dist. LEXIS 28980, *24

ATTORNEY, WHATCOM COUNTY PROSECUTING Esperanza Moreno, Defendant, Pro se, FERNDALE, ATTORNEY'S OFFICE, BELLINGHAM, WA. WA.

For Whatcom County Fire District No 8, Defendant: For Esperanza Moreno, Defendant: Charles W Lean, Frank Joseph Chmelik, LEAD ATTORNEY, CHMELIK OLYMPIA, WA. SITKIN & DAVIS, BELLINGHAM, WA. For Robin L Moore, Defendant: Charles W Lean, Marguerite F Whichtalum, Defendant, Pro se, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP BELLINGHAM, WA. PLLC, BELLINGHAM, WA.

Helmut C Wilck, Defendant, Pro se, OCEANSIDE, CA. Martha J Witt, Defendant, Pro se, MONROE, WA.

David A Williams, Defendant, Pro se, FERNDALE, WA. For Martha J Witt, Defendant: Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Bruce D Wonder, Defendant, Pro se, BELLINGHAM, WA. Richard S Witt, Defendant, Pro se, MONROE, WA.

Claire L Carlin, Defendant, Pro se, BELLINGHAM, WA. For Richard S Witt, Defendant: Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Brian Wright, Defendant, Pro se, BELLINGHAM, WA. Rory K Swedelius, Defendant, Pro se, FERNDALE, For Brian Wright, Defendant: Charles W Lean, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Zena M Morton, Defendant, Pro se, SPOKANE, WA.

Jennifer Wright, Defendant, Pro se, BELLINGHAM, WA. For Sarah E Webb, Defendant: Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. For Jennifer Wright, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP For Nicholas P Webb, Defendant: Eugene H. Knapp, PLLC, BELLINGHAM, WA. Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Beverly A Zander, Defendant, Pro se, BELLINGHAM, Paul W Meckna, Defendant, [*26] Pro se, YORBA WA. LINDA, CA. Shirley M Bezona, Defendant, [*25] Pro se, BELLINGHAM, WA. Mary M Neil, Defendant, Pro se, FERNDALE, WA.

For Linda Huizenga, Defendant: Charles W Lean, Timothy Buecking, Defendant, Pro se, BELLINGHAM, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP WA. PLLC, BELLINGHAM, WA. Amy I Buecking, Defendant, Pro se, BELLINGHAM, Luella M Olsen, Defendant, Pro se, BELLINGHAM, WA. WA. John C Cargill, Defendant, Pro se, BELLINGHAM, WA. For Luella M Olsen, Defendant: Charles W Lean, OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP Rhonda L Cargill, Defendant, Pro se, BELLINGHAM, PLLC, BELLINGHAM, WA. WA.

For Olga Osvaldik, Defendant: Charles W Lean, Kathryn L Close, Defendant, Pro se, EVERETT, WA. OLYMPIA, WA; Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, WA. Nancy Swan, Defendant, Pro se, BELLINGHAM, WA.

Chase Nielson Page 13 of 22 2003 U.S. Dist. LEXIS 28980, *26

For Flemming P Hansen, Defendant: Jeffrey J Arntzen, B. Quimby Land LLC, Defendant, Pro se, LEADATTORNEY,JEFFREY JARNTZEN PS, BLAINE, BELLINGHAM, WA. WA. Mee Young L. Back, Defendant, Pro se, Kirkland, WA. For Frank L Moser, Defendant: Nancy M Neal, LEAD ATTORNEY, LESTER & HYLDAHL PLLC, Dane R Brooks, Defendant, Pro se, ARLINGTON, WA. BELLINGHAM, WA. Kelly A Brooks, Defendant, Pro se, ARLINGTON, WA. Judy A Berrett, Defendant, Pro se, BELLINGHAM, WA. Robert B Cameron, Defendant, Pro se, FAIRMONT, William L John, Defendant, Pro se, BELLINGHAM, WA. WV.

D Robert Hoover, Defendant, Pro se, FERNDALE, CA. David Crist, Defendant, Pro se, Bellingham, WA.

Alexander M Kamkoff, Defendant, Pro se, Matthew K Donnelly, Defendant, Pro se, Bellingham, BELLINGHAM, WA. WA.

Anastasia Kiefer, Defendant, Pro se, ANCHORAGE, Toni C Donnelly, Defendant, Pro se, Bellingham, WA. AK. Frazier Family Cabin LLC, Defendant, Pro se, Randy Kiefer, Defendant, Pro se, ANCHORAGE, AK. Bellingham, WA.

Troy D Leland, Defendant, Pro se, BELLINGHAM, WA. Julie E Ingalls, Defendant, Pro se, Bellingham, WA.

Leslie Leland, Defendant, Pro se, BELLINGHAM, WA. Debra James, Defendant, Pro se, Bellingham, WA.

Tammera L Mercier, Defendant, Pro se, SELMA, CA. Douglas D James, Defendant, Pro se, FERNDALE, WA. Charles G Baker, Defendant, Pro se, BELLINGHAM, WA. Ellen Koay, Defendant, Pro se, Bellingham, WA.

Justin McCartney, Defendant, Pro se, BELINGHAM, Nancy Lee, Defendant, Pro se, Bellingham, WA. WA. Celica Quirarte, Defendant, Pro se, Mt Vernon, WA. For Justin McCartney, Defendant: Eugene H. Knapp, Jr., BD LAW GROUP PLLC, BELLINGHAM, [*27] WA. John Quirarte, Defendant, Pro se, Mt. Vernon, WA.

Sofia M Juarez, Defendant, Pro se, BELLINGHAM, Cheul H Rho, Defendant, Pro se, Kirkland, WA. WA. Richard P Ridley, Defendant, [*28] Pro se, Bellingham, Janet Stockton, Defendant, Pro se, BELLINGHAM, WA. WA.

Darlene Olson, Defendant, Pro se, BELLINGHAM, WA. Erin C Rowniak, Defendant, Pro se, BLAINE, WA.

David Dettman, Defendant, Pro se, SEDRO WOOLLEY, George Schmidt, Defendant, Pro se, Bellingham, WA. WA. For George Schmidt, Defendant: Eugene H. Knapp, Jr., Linda Amburg, Defendant, Pro se. BD LAW GROUP PLLC, BELLINGHAM, WA.

Ken Blakely, Defendant, Pro se, ENUMCLAW, WA. Roger Schmidt, Defendant, Pro se, Bellingham, WA.

Kathe Kestiens, Defendant, Pro se, ENUMCLAW, WA. Julie Strand, Defendant, Pro se, Bellingham, WA.

Chase Nielson Page 14 of 22 2003 U.S. Dist. LEXIS 28980, *28

Anthony Zamudio, Defendant, Pro se, Ferndale, WA. Teesdale Grandchilden's Trust FBO Mary E. Teesdale; Mary E. Teesdale Trustee, Defendant, Pro se, Valerie E Zamudio, Defendant, Pro se, Ferndale, WA. Bellingham, WA.

Nechemjah Cohen, Defendant, Pro se, CANADA. Jerry Martin, Defendant, Pro se, Lummi Island, WA.

For Roger Schmidt, Defendant: Eugene H. Knapp, Jr., Reatha P. Rudy, Defendant, Pro se, BELLINGHAM, BD LAW GROUP PLLC, BELLINGHAM, WA. WA.

For George Schmidt, Defendant: Eugene H. Knapp, Jr., Thomas R. Ficca, Defendant, Pro se, Bellingham, WA. BD LAW GROUP PLLC, BELLINGHAM, WA. Richard Meyer, Defendant/Appellant, Pro se, Kenmore, Mark S. Moss, Defendant, Pro se, Bellingham, WA. WA.

Stuart R Andrews, Defendant, Pro se, Bellingham, WA. Judges: THOMAS S. ZILLY, UNITED STATES DISTRICT JUDGE. Sally A Andrews, Defendant, Pro se, Bellingham, WA. Opinion by: THOMAS S. ZILLY Zibens LLC, Defendant, Pro se, BELLEVUE, WA. Opinion Deutsche Bank National Trust, Defendant, Pro se, Orange, CA. ORDER Roxanne Hancock, Defendant, Pro se, SEDRO WOOLLEY, WA. Plaintiff United States brought this action in its own right and on behalf of Plaintiff-Intervenor Lummi Indian Nation (collectively, "Plaintiffs"), seeking a declaration that the Wayne Hancock, Jr., Defendant, Pro se, SEDRO Treaty of Point Elliott (the "Treaty"), 12 Stat. 927, WOOLLEY, WA. impliedly reserved drinkable groundwater under the Lummi Peninsula for the use and benefit of the Lummi Tod Williams, Defendant, Pro se, FERNDALE, WA. Nation. Defendant State of Washington, Department of Ecology ("Ecology") issues permits to Defendant water Estate of Don Williams, Defendant, Pro se, associations to withdraw groundwater. Defendant ENGLEWOOD, FL. Ecology claims that the Treaty of Point Elliott does not impliedly reserve groundwater under the Lummi Ronald F. Pollard, Defendant, Pro se, Sedro Woolley, Peninsula for the use [*30] and benefit of the Lummi WA. Nation. Defendants individual fee landowners also assert a right to withdraw groundwater under a claim of Lynette J. Pollard, Defendant, Pro se, Sedro Woolley, right under Washington law. This action seeks to clarify WA. [*29] the legal relationship between the parties as to their water rights in the use of the groundwater underlying Aaron L. Sanger, Defendant, Pro se, BELLINGHAM, the Lummi Peninsula. WA. This matter comes before the Court on Defendant Michelle F. Sanger, Defendant, Pro se, BELLINGHAM, Ecology's motion for summary judgment re reserved WA. groundwater rights, docket no. 216, and Defendant Ecology's motion for partial summary judgment Aaron L. Sanger, Defendant, Pro se, BELLINGHAM, regarding practicably irrigable acreage standard, docket WA. no. 264.

Michelle F. Sanger, Defendant, Pro se, Chatsworth, CA. BACKGROUND

Chase Nielson Page 15 of 22 2003 U.S. Dist. LEXIS 28980, *30

In 1855, the Treaty of Point Elliott reserved the island of argues that the first wells for individual domestic supply Cha-Cho-Sen (now known as the Lummi Peninsula)1 were not drilled until the 1940s. Young Deck, docket no. for the exclusive use of the Lummi Indian Nation. At the 217, Ex. 2. time of the Treaty, the Lummi people numbered about 500. Kennedy Decl., docket no. 219, Ex. 5 at 433. The Today, the Lummi Nation operates at least eight wells Lummi Tribe lived mostly in the San Juan Islands and on the Lummi Peninsula, using the water primarily for Bellingham Bay areas. United States v. Washington, residential and domestic purposes. Id., Ex. 3. In 1990, 384 F. Supp. 312, 360-63 (W.D. Wash. 1974). the Lummi Nation contracted with the City of Bellingham The Treaty of Point Elliott was one of a number of [*33] to purchase water, and a pipeline was constructed treaties negotiated by Isaac Stevens, the first governor to the Lummi Reservation from Bellingham. Bucknell of Washington Territory. Kennedy Decl., docket no. 219, Decl., docket no. 218, Ex. 5. Ex. 10. The purpose of these treaties was to "extinguish Indian claims to the land in Washington Territory and Since 1855, much of the land on the Lummi Reservation provide for peaceful and compatible coexistence of has been allotted to individual tribal members and sold Indians and non-Indians in the area." Washington, 384 to non-Indians. Today, several hundred non-Indians F. Supp. at 355. The Lummi ceded large tracts of land to own land on the Lummi Peninsula. Young Decl., docket the United States in exchange for cash, defined no. 217, Ex. 3. Seven water associations supply water reservations, hunting and fishing rights, and other items. for residential and domestic purposes to numerous 12 Stat. 927. The Treaty does not mention water or homeowners that live on the Lummi Peninsula. United water rights, although it reserves to the Lummi their States' Second Am. Compl., docket no. 97, ¶¶ 5, 7. In right to fish at their "usual and accustomed places." Id. addition, many non-Indian homeowners withdraw their water from single-family domestic wells drilled on their There is little information about the historical water use of the Lummi Nation, especially groundwater use at the property. Young Decl., docket no. 217, Ex. 2. time of the Treaty. Kennedy Decl., docket no. 219, ¶¶ 3-4. At the time of the Treaty, salmon were the principal The groundwater underlying the Lummi Peninsula is source of food for the Lummi Indians, who also relied on alleged to be the sole source of drinkable water within shellfish, roots, berries, and various game animals. Id. ¶ the Lummi Reservation and is recharged only by 5. Prior to the [*32] Treaty, the Lummi may have precipitation. Lummi Am. Compl., docket no. 96, ¶ 6. engaged in a type of incipient agriculture by gathering The surface water of the Lummi Reservation consists of plant foods. Id. ¶ 6. Their cultivation appears to have the Nooksack River, which forms part of the been limited to small patches of ground where root reservation's eastern boundary, and the Lummi River, vegetables grew naturally, and which they harvested in the northern portion of the reservation. The Nooksack and tended by replanting seeds and small plants. Id. and Lummi Rivers have become polluted so that their After non-native fur traders introduced potatoes, the waters are not drinkable [*34] without treatment. Lummi and neighboring tribes cultivated small patches Freimund Decl., docket no. 282, ¶ 8, Ex. D. of potatoes. Id. One expert has stated that there is no evidence that the Lummi dug wells or otherwise utilized Disputes between Indian and non-Indian landowners groundwater at the time of the Treaty for watering these on the Lummi Reservation regarding groundwater have crops. Id. ¶¶ 3-4. a long history. In the 1970s, the United States filed an Plaintiff United States presents evidence that the action against the State and other parties seeking to historical record indicates the existence of wells on the enjoin further state-authorized withdrawals of water from Lummi Peninsula as early as the latter part of the the aquifer underlying the Lummi Peninsula. United 1700s. Friday Decl., attached as Ex. 1 to United States' States v. Bel Bay Community & Water Ass'n, Civ. No. Response, docket no. 287, at 3-5. Defendant Ecology

1 At the time of the Treaty, the Lummi River (in 1855 the Nooksack River was known as the Lummi River) had two mouths, one emptying into Lummi Bay and the other into Bellingham Bay. The island of Cha-Cho-Sen was situated at the point of separation of the mouths. The majority [*31] of the flow into the Lummi Bay was later diverted to Bellingham Bay, and the island became what is now known as the Lummi Peninsula. United States' Response, docket no. 287, at 2-3.

Chase Nielson Page 16 of 22 2003 U.S. Dist. LEXIS 28980, *34

303-71C2 (W.D. Wash. 1978). However, the suit and is, not necessary to fulfill the purpose of the Lummi became moot in 1982.2 Reservation. Third, whether it is inequitable to extend the reserved water rights doctrine to groundwater when Negotiations between the parties to attempt to resolve it would deprive non-Indian homeowners of their state the groundwater disputes on the Lummi Reservation law rights to withdraw groundwater. commenced in 1995. Deardorff Deck., docket no. 283, ¶ [*35] 2.3 No final agreement was reached. Id. 5. A. Extension of Water Rights Doctrine

The reserved water rights doctrine derives from Winters DISCUSSION v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. Summary judgment is appropriate where there is no 340 (1908). In Winters, the United States Supreme genuine issue of material fact and the moving party is Court held that when Congress set aside lands of the Fort Belknap Reservation for the use of the Gros Venture entitled to judgment as a matter of law. FED. R. CIV. P. and Assiniboine Tribes, it also impliedly reserved the 56(c). The moving party bears the initial burden of water of the Milk River because "[t]he lands were arid, demonstrating the absence of a genuine issue of [*37] and, without irrigation, practically valueless." Id. material fact. Celotex Corp. v. Catrett, 477 U.S. 317, at 576. The Supreme Court has summarized the 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the reserved water rights doctrine as follows: moving party has met this burden, the opposing party must show that there is a genuine issue of fact for trial. The Court has long held that when the Federal Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 Government withdraws its land from the public U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). domain and reserves it for a federal purpose, the The opposing party must present significant and Government, by implication, reserves appurtenant probative evidence to support [*36] its claim or defense. water then unappropriated to the extent needed to Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d accomplish the purpose of the reservation. In so 1551, 1558 (9th Cir. 1991). For purposes of the motion, doing the United States acquires a reserved right in reasonable doubts as to the existence of material facts unappropriated water which vests on the date of the are resolved against the moving party and inferences reservation and is superior to the rights of future are drawn in the light most favorable to the opposing appropriators. party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Cappaert v. United States, 426 U.S. 128, 138, 96 S. Ct. 2062, 48 L. Ed. 2d 523 (1976). The Supreme Court elaborated upon the reserved water rights doctrine in I. Ecology's Motion for Summary Judgment Arizona v. California ("Arizona I"), 373 U.S. 546, 83 S. Regarding Groundwater Ct. 1468, 10 L. Ed. 2d 542 (1963), in which the Court held that when the federal government withdraws land Defendant Ecology seeks summary judgment regarding for an Indian tribe, an adequate supply of water to groundwater rights on three issues. First, whether the accomplish the purpose of the reservation is likewise reserved water rights doctrine should be extended to reserved. groundwater. Second, whether there was an implied intent to reserve groundwater in the Treaty of Point Defendant Ecology argues that reserved water rights Elliott when the use of the groundwater arguably was, do not extend to groundwater because groundwater

2 Before the suit became moot, the Court ruled that the Lummi Nation's federal reserved water right extended to groundwater underlying the Lummi Peninsula. See Ex. 2 to United States' Response, docket no. 287 (Order granting partial summary judgment). However, the Order was subsequently withdrawn and the Court reserved its ruling regarding groundwater until after trial on the merits, but the suit later became moot and no ruling was ultimately made on this issue. See Ex. A to Ecology's Reply, docket no. 292 (Order of September 26, 1978).

3 Defendant Ecology relies on these negotiations in support of its summary judgment motion regarding groundwater. Bucknell Decl., docket no. 218, Exs. 1-4. The protocols for the negotiations provided that the negotiations were to be confidential, and that no statement or position taken by any party was to be admissible in any court. Deardorff Deck, docket no. 283, Ex. A. Regardless of how the negotiation documents became part of the discovery repository in this case, see Ecology's Reply to Lummi Nation's Response, docket no. 293, at 6, these confidential documents are inadmissible and should not be disclosed to the Court. The Court has not reviewed or relied on these documents.

Chase Nielson Page 17 of 22 2003 U.S. Dist. LEXIS 28980, *37 law has traditionally differed from surface water law. 2002 MT 280, 312 Mont. 420, 59 P.3d 1093, 1098-99 Defendant Ecology argues that the implied water rights (Mont. 2002) (holding that "there is no distinction doctrine should not be extended to groundwater between surface water and groundwater for purposes because Washington law uses a different statutory [*38] of determining what water rights are reserved"). code for the two types of water, because there are hydrologic differences between the two, and because Defendant Ecology argues for the first time in its Reply extending the doctrine would detrimentally affect those that the groundwater under the Lummi Peninsula is who have relied on state law appropriations. unconnected to any surface water. Ecology's Reply, docket no. 292, at 3. Ecology relies on the fact that In United States v. Cappaert, 508 F.2d 313, 317 (9th Cir. Plaintiffs' complaints do not explicitly assert that the 1974), the Ninth Circuit held that the United States may groundwater is connected to surface water. See United reserve not only surface water, but also underground States' Second Am. Compl., docket no. 97; Lummi Am. water. Cappaert involved the drilling of wells and Compl., docket no. 96. The United States argues in its pumping of groundwater from a pool that was part of the Response that the groundwater and surface water groundwater system. Id. at 315-16. The Ninth Circuit systems are connected. United States' Response, held that the implied reservation of water doctrine docket no. 287, at 12. The United States cites Dr. applied not only to surface water, but also to Kennedy's example of groundwater surfacing as underground water. Id. at 317. The United States springs, but Dr. Kennedy is not a qualified expert on this Supreme Court affirmed the Ninth Circuit and stated subject as [*40] a cultural anthropologist and that "since the implied-reservation-of-water-rights ethnohistorian. Ex. 3 to United States' Response, docket doctrine is based on the necessity of water for the no. 287; Kennedy Decl., docket no. 219, ¶ 1. From the purpose of the federal reservation, we hold that the present record, the Court cannot determine whether the United States can protect its water from subsequent two systems are in hydraulic continuity.4 diversion, whether the diversion is of surface or groundwater." Cappaert v. United States, 426 U.S. 128, If the groundwater and surface water systems on the 143, 96 S. Ct. 2062, 48 L. Ed. 2d 523 (1976). However, Lummi Peninsula are connected, the Court finds as a this Supreme Court language is dicta because the matter of law that the reserved water rights doctrine Court ultimately characterized the water in Cappaert as extends to the groundwater. Anderson, 736 F.2d at "surface water." Id. at 142. Thus, Cappaert left 1361; Walton, 647 F.2d at 47. For purposes of summary unresolved the question of whether a reserved right to judgment, all inferences are to be made in favor of the groundwater exists. nonmoving party. Therefore, the Court DENIES Defendant Ecology's motion for summary judgment on The Ninth Circuit has upheld the extension [*39] of this ground. Assuming for the sake of argument that the implied reservation of water rights to groundwater when groundwater and surface water systems on the Lummi it is connected to surface water. United States v. Ander- Peninsula are not connected, the Court finds persuasive son, 736 F.2d 1358, 1361 (9th Cir. 1984); Colville Con- the Arizona Supreme Court's rationale in Gila River, federated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 195 Ariz. 411, 989 P.2d 739. The Arizona Supreme 1981). However, state courts are split over the Court relied [*41] on the language in Cappaert indicating interpretation of this line of cases when groundwater is that "the United States can protect its water from not connected to surface water. Compare In re General subsequent diversion, whether the diversion is of Adjudication of All Rights to Use Water in the Big Horn surface or groundwater." Gila River, 989 P.2d at 746 River, 753 P.2d 76, 99-100 (Wyo. 1988) (holding that (quoting Cappaert, 426 U.S. at 143). The Arizona there is no reserved right to groundwater), with In re Supreme Court stated that because federal reserved General Adjudication of All Rights to Use Water in Gila rights law did not differentiate between surface and River System & Source, 195 Ariz. 411, 989 P.2d 739, groundwater when addressing the diversion of protected 747 (Ariz. 1999) (holding that reserved rights may waters, the implication is that federal reserved rights include groundwater), and Confederated Salish & law would not differentiate between surface and Kootenai Tribes of the Flathead Reservation v. Stults, groundwater in identifying the water to be protected.

4 In the previous Bel Bay litigation, there was testimony from an engineering geologist submitted by Ecology that other groundwater aquifers and the Nooksack River are "separate from the aquifer underlying the Lummi Peninsula and have little, if any, hydrological connection to it." Ex. E. to Freimund Decl., docket no. 282 (Third Affidavit of Duane Wegner, ¶ 4).

Chase Nielson Page 18 of 22 2003 U.S. Dist. LEXIS 28980, *41

Gila River, 989 P.2d at 747; see also FELIX S. COHEN, which a reservation was created, courts consider a HANDBOOK OF FEDERAL INDIAN LAW, at 585-86 (1982) ("Rights treaty and circumstances surrounding its creation, the [to reserved water] should attach to all water sources - history of the Indian tribe for whom the reservation was groundwater basins, streams, lakes, and springs . . . ."). created, and the Indians' need to maintain themselves Thus, as a matter of law the Court concludes that the under changed circumstances. Walton, 647 F.2d at 47. reserved water rights doctrine extends to groundwater In the context of an Indian tribe's fishing rights under a even if groundwater is not connected to surface water. treaty, the Ninth Circuit has allowed fishing beyond a Accordingly, the Court DENIES Ecology's motion for tribe's activity at the time of the treaty. United States v. summary judgment on this ground. Washington, 157 F.3d 630, 646 (9th Cir. 1998): see also United States v. Washington, 143 F. Supp. 2d 1218, B. Implied Intent to Reserve Groundwater Under the 1222 (W.D. Wash. 2001) ("The tribes' right is not limited Treaty by particular species, nor limited to the species that were caught at the time of the treaties preserving the An intent to reserve water can be implied only when right."). Moreover, a tribe's reserved water rights are not necessary to fulfill the purpose of a federal reservation. limited by technology available at the time of the treaty. United States v. New Mexico, 438 U.S. 696, 700, 98 S. Arizona I, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 Ct. 3012, 57 L. Ed. 2d 1052 (1978); Cappaert, 426 U.S. (1973); see also Washington, 384 F. Supp. at 402 at 141: United States v. Adair, 723 F.2d 1394, 1408-9 (permitting a tribe [*44] to use "improvements in (9th Cir. 1984); Walton, 647 F.2d at 47. Defendant traditional fishing techniques, methods and gear"). Thus, Ecology argues that even if the reserved water rights the Court is not bound by the historical use of doctrine extends to groundwater, the doctrine should groundwater by the Lummi at the time of the Treaty. not apply in this [*42] case because the reservation of groundwater was, and is, unnecessary to fulfill the Even if the Court were to reach the issue of whether the purpose of the Lummi Reservation.5 Lummi used groundwater at the time of the Treaty, Plaintiff United States raises genuine questions of Ecology relies on the use of groundwater by the Lummi material fact regarding this issue. The United States at the time of the Treaty of Point Elliott to argue that submits the Declaration of Christopher Friday in implied groundwater rights were not necessary to the opposition to Defendant Ecology's submission of the purpose of the reservation. Ecology argues that at the Declaration of Dorothy Kennedy. Dr. Friday has read time of the Treaty, there was abundant surface water the full historical record on the subject of the Lummi available to meet the Lummi Nation's needs from the Nation and states that the historical record includes Lummi River and Nooksack River. Ecology relies on the references to wells. Friday Decl., attached as Ex. 1 to lack of evidence of Lummi groundwater use at the time United States' Response, docket no. 287, at 3-4. Dr. of the Treaty to argue that surface water was adequate, Friday refers to a dissertation by Wayne Suttles that relying on the opinion of Dr. Kennedy. Kennedy Decl., mentions a well that "gave brackish water" in the late [*43] docket no. 219, ¶¶ 3-4. Ecology presents evidence 1700s. Id., App. 1. Dr. Friday also mentions to P.R. that the first documented use of groundwater on the Jeffcott, a local historian who references "Indian springs" Lummi Peninsula occurred in the 1940s when individual on a map he prepared for his 1964 study on the domestic wells were drilled. Young Decl., docket no. Nooksack Indians. Id., App. 2, Mr. Jeffcott references 217, Ex. 2. Archibald Menzies' discussion in 1792 of a well of fresh water used by the Nooksack people for drinking. Id., Although Ecology looks to the Lummi Nation's historical App. [*45] 2, p. 3. Dr. Friday also draws inferences from use of groundwater at the time of the Treaty, the historical facts such as a 1887-88 Geodetic Survey map reserved rights doctrine does not require that a tribe that shows Lummi homesites spread widely throughout actually use the water in question at the time the the Lummi Peninsula, many of which were located reservation was created. In identifying the purpose for away from the surface water sources of the Nooksack

5 Ecology assumes for the purpose of argument on its motion for summary judgment re groundwater that the purpose of the Lummi Reservation was to provide a home for the Lummi people. Ecology's motion for summary judgment re groundwater, docket no. 216, at 15. The issue of the purpose of the Lummi Reservation is discussed further in Ecology's motion for partial summary judgment regarding practicably irrigable acreage standard, docket no. 264. The Court addresses the purpose of the Lummi Reservation in greater depth in Part II of this Order.

Chase Nielson Page 19 of 22 2003 U.S. Dist. LEXIS 28980, *45 and Lummi Rivers. Id., at 6,App. 6. Dr. Friday concludes on all sides too important to disregard, . . . the only that it can be inferred that the remote homesites would way to proceed at this juncture is to make every have relied on groundwater to satisfy water needs. Id., effort to insure that all parties to this litigation have at 6. Dr. Friday also states that the historical record an equal opportunity to present their respective discloses that in 1910, approximately 47 Indian versions of history, and how those versions impact homesites on the Lummi Reservation relied on the remaining issues . . . . groundwater to satisfy domestic needs. Id., at 7. Dr. Kennedy acknowledges that there are historical Cayuga Indian Nation of New York v. Pataki, 165 F. references to wells, but interprets these references Supp. 2d 266, 274 (N.D.N.Y. 2001) (quoting his differently than Dr. Friday to conclude that the lack of supplemental pretrial order, 2000 WL 654943, at * 4). evidence of Lummi groundwater use at the time of the Even if the Court were to engage in a balancing of Treaty means that surface water sources were equities, Defendant Ecology has not shown that the adequate. Kennedy Decl., docket no. 219, ¶¶ 3-4. equities weigh in its favor. Ecology argues that the Defendant Ecology has failed to show that the proper means of addressing Plaintiffs' complaint reservation of groundwater under the Lummi Peninsula regarding the inadequate quality of the surface water of is unnecessary to fulfill the purpose of the Lummi the Nooksack River is by treating the water, not Reservation as a matter of law. The actual usage of increasing the supply. United States' Second Am. groundwater by the Lummi at the time of the Treaty is Compl., docket no. 97, ¶ 17; Lummi Am. Compl., docket not determinative, and there are genuine [*46] questions no. 96, ¶ 6. Ecology states that surface water from the of material fact regarding this issue. Accordingly, the Nooksack River is available to satisfy the Lummi's Court DENIES Ecology's motion for summary judgment needs, and can be obtained through the existing pipeline on this ground. running from the Nooksack River to the City of Bellingham to the Lummi Reservation. Alternatively, C. Balancing of Equities Ecology argues that the Lummi may construct a Defendant Ecology urges the Court to engage in a treatment plant and take water directly from the balancing of equities in making its decision because Nooksack River by negotiating with the City of there are approximately 500 non-Indian landowners Bellingham. [*48] who either live or own land on the Lummi Peninsula. These landowners have relied on groundwater to supply Plaintiff-Intervenor Lummi Nation raises the issue of the their domestic water needs for many years, and if incomplete factual record which precludes the Court Plaintiffs prevail, their water supply will be affected. from finding that the equities weigh in favor of Defendant Ecology, and takes issue with several of Ecology's The Ninth Circuit has stated that "[w]here reserved factual representations. First, the Lummi Nation claims water rights are properly implied, they arise without that the Nooksack River does not provide an adequate regard to equities that may favor competing water supply of water. Ecology has closed substantial portions users." Colville Confederated Tribes v. Walton, 752 F.2d of the Nooksack River, including the portions closest to 397, 405 (9th Cir. 1985) (citing Cappaert, 426 U.S. at the Lummi Indian Reservation, to further appropriation. 138-39). The Court can engage in a balancing of equities WAC 173-501-040. Second, state law requires that only if all of the interested parties derive their rights from water right certificates issued by Ecology be subject to the same reserved source, and all share the same existing rights. RCW 90.03.010. These existing rights priority date. Walton, 752 F.2d at 405; Joint Bd. of include those reserved for Indian tribes. Third, the Control of Flathead. Mission & Jocko Irrigation Dists. v. Lummi Nation argues that Ecology has contributed to United States, 832 F.2d 1127, 1131 (9th Cir. 1987). The any inequities because when it concluded in 1980 that parties have not discussed the issue of the parties' there was no groundwater on the Lummi Peninsula left various priority dates in their briefing. Nonetheless, the for appropriation by non-Indians, it failed to take balancing of the equities is inherently factual and cannot significant steps to prohibit non-Indians from developing be decided on summary judgment. As Judge McCum of wells or increasing withdrawals in the area during the the Northern District of New York stated in a comparable past twenty years. Freimund Decl., docket no. 282, Ex. case: E (Third WegnerAff.); Ex. F (Ecology's Mem. in Supp. of [B]ecause the stakes are simply too high, the Mot. to Dismiss, at 8) (stating that Ecology had "no experts' [*47] views too antithetical, and the equities intention of [*49] issuing further permits to appropriate

Chase Nielson Page 20 of 22 2003 U.S. Dist. LEXIS 28980, *49 ground waters on the Lummi Peninsula").6 Fourth, the A. The PIA Standard Lummi Nation claims that the Nooksack River is contaminated so that its waters do not meet the The PIAstandard is a method for calculating the amount standards of the federal Clean Water Act and are not fit of water reserved based on the water needed to irrigate to drink. Id. ¶ 8, Ex. D. Finally, the Lummi Nation claims the irrigable portions of the reserved land. Arizona I, that Ecology misrepresents the availability of a water 373 U.S. at 596. The PIA standard requires a showing supply through negotiations with the City of Bellingham, that: (1) crops can be grown on the [*51] land, and (2) and the costs of such a water supply. Deardorff Decl., the irrigation is economically feasible.7 Arizona v. Cali- docket no. 283, ¶¶ 6, 8. fornia ("Arizona II"), 460 U.S. 605, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983) (adopting a Special Master's PIA Because the Court cannot engage in a balancing of analysis that required economic feasability). The PIA equities in determining the issue of reserved water standard is "a measure which would allow a fixed rights at this time, the Court DENIES Defendant present determination of future needs for water." Ari- Ecology's motion for summary judgment on this ground. zona II, 460 U.S. at 622-23. Courts have applied the Even if the Court were to balance the equities, the PIA standard when a reservation has been determined incomplete and contested facts would preclude the to have an agricultural purpose. See, e.g., Arizona I, Court from finding in favor of Ecology on summary 373 U.S. at 600-1: Adair, 723 F.2d at 1410, 1415; judgment as a matter of law. Walton, 647 F.2d at 47-48; Big Horn, 753 P.2d at 96-99. An award of water under the PIA standard need not be II. Ecology's [*50] Motion for Summary Judgment used for agriculture and related uses, but can be used Regarding PIA Standard for any lawful purpose. Anderson, 736 F.2d at 1365. Because the Court denies Defendant Ecology's motion for summary judgment regarding groundwater rights, B. Purpose of the Treaty of Point Elliott the Court now reaches the issues raised in Defendant Ecology's motion for partial summary judgment To identify the purpose for which a reservation was regarding practicably irrigable acreage standard, docket created, the Court considers "the document and no. 264. Ecology argues that the Court should use the circumstances surrounding its creation, and the history practicably irrigable acreage ("PIA") standard to quantify of the Indians for whom it was created." as well as the the amount of reserved water rights. Indians' need to maintain themselves under changed conditions. Walton, 647 F.2d at 47. Indian treaties "are The Winters case merely addressed the existence of an to be construed liberally in favor of Indians, with implied reservation of water when a reservation is ambiguous provisions interpreted to their [*52] benefit." created, not the amount of water reserved. The implied Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, reservation of water rights doctrine reserves "only that 766, 105 S. Ct. 2399, 85 L. Ed. 2d 753 (1985). amount of water necessary to fulfill the purpose of the reservation." Cappaert, 426 U.S. at 141; see Arizona I, The purpose of the Treaty of Point Elliott was to 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542. Water is "extinguish Indian claims to the land in Washington reserved only for a primary purpose of a reservation, Territory and provide for peaceful and compatible not for a secondary purpose. New Mexico, 438 U.S. at coexistence of Indians and non-Indians in the area." 702; Walton, 647 F.2d at 47. A reservation may have Washington, 384 F. Supp. at 355. Ecology argues that multiple purposes that entitle a tribe to reserved water agriculture was the primary and exclusive purpose of rights. See, e.g., Adair, 723 F.2d at 1410; Walton, 647 the Lummi Reservation.8 Ecology relies on federal policy F.2d at 47-48. regarding Indian reservations and allotments at the

6 Ecology explains that this quotation was made in the context of whether Ecology should issue additional permits to appropriate groundwater on the Lummi Peninsula, when all but one of the new non-Lummi wells were exempt from state permitting requirements under RCW 90.44.050. Ecology's Reply to Lummi Response, docket no. 293, at 5. 7 Defendant Ecology has submitted evidence that the calculation of the PIA involves several steps. Beeby Decl., docket no. 266, ¶ 4. The Court makes no ruling at this time regarding the specific steps required in a PIA analysis.

8 Plaintiff United States mentions that Ecology's position regarding the agricultural purpose of the Treaty is contrary from the position it argued in the previous Bel Bay litigation. See App. 1 to United States' Response, docket no. 300 (Ecology's Mem. in

Chase Nielson Page 21 of 22 2003 U.S. Dist. LEXIS 28980, *52 time of the Treaty of Point Elliott. See generally, cannot determine whether the PIAstandard would apply. CONFERENCE OF WESTERN ATTORNEYS GENERAL,AMERICAN The Court recognizes that the PIA standard may apply INDIAN LAW DESK BOOK, at 17 (2d ed. 1998) (discussing if agriculture is later found to be a primary purpose of reservation and allotment policy); COHEN supra, at the Lummi Reservation. The Court notes that in some 121-25 (same). Ecology specifically points to language cases, the PIA standard has been found to provide a in the Treaty establishing an "agricultural and industrial sufficient amount of water for a tribe's agricultural as school." 12 Stat. 927, Art. III, XIV. Ecology also well as municipal, domestic, and commercial purposes. references provisions of the Treaty that provided money Big Horn, 753 P.2d at 99; see Arizona I, 373 U.S. at 598; to enable the tribes "to clear, fence, and breakup a Special Master Report of Simon Rifkind in Arizona I, at sufficient quantity of land for cultivation." Id., Art. XIII. 265-66 (December 5, 1960) (quoted in Walton, 647 F.2d Plaintiffs argue that agriculture was not the sole purpose at 48). of the Lummi Reservation. Plaintiff-Intervenor Lummi Plaintiffs claim that using [*55] the PIA standard in the Nation argues that the Treaty on its face included Lummi Nation's situation could result in an insufficient activities other than agriculture, such as fishing, amount of water to meet the Lummi Nation's domestic carpentry, blacksmithing, education, and medical care. and basic community needs. Quantifying the amount of 12 Stat. 927, Art. V, XIV. In addition, the Lummi Nation reserved water rights is necessarily a factual inquiry for refers to the Treaty's express language allowing each reservation. The present record does not show individual tribal families to be located on allotments as whether the PIA standard would provide an amount of "a permanent home." Id., Art, VII The Lummi Nation water "necessary to fulfill the purpose of the also points out that this Court previously stated that the reservation." Cappaert, 426 U.S. at 141. Accordingly, United States' intent in negotiating the Treaty of Point the Court DENIES Defendant Ecology's motion for Elliott was "to make at least non-coastal tribes partial summary judgment regarding practicably irrigable agriculturists, although not to restrict them to that." acreage standard. Washington, 384 F. Supp. at 355. Plaintiffs also argue that because the general purpose of an Indian CONCLUSION reservation is to provide a homeland for the Indians, the creation of the Lummi Reservation necessarily reserved For the forgoing reasons, the Court DENIES Defendant an amount of water adequate to satisfy the domestic Ecology's motion for summary judgment re reserved needs of the tribe. groundwater rights, docket no. 216, and DENIES The Court finds that the Treaty on its face refers to a Defendant Ecology's motion for partial summary variety of activities, including [*54] agriculture. The judgment regarding practicably irrigable acreage Court acknowledges that Plaintiffs' argument that the standard, docket no. 264. The Court concludes as general purpose of an Indian reservation is to provide a follows: homeland has some appeal. However, the present 1. The doctrine of implied reservation of water rights record is not sufficiently developed as to the factors applies as a matter of law to surface water as well as other than the Treaty itself that the Court considers groundwater on the Lummi Peninsula pursuant to the when determining the purpose of a reservation. No Treaty of Point Elliott, to the extent needed to accomplish parties have disclosed expert testimony regarding the the purpose of the Lummi Indian Reservation. purpose of the Lummi Reservation. Therefore, the Court cannot determine the purpose of the Lummi Reservation 2. The Court is not bound by the Lummi Nation's actual in connection with the summary judgment motion before groundwater usage at [*56] the time of the Treaty in the Court. determining the amount of water necessary to fulfill the purpose of the Lummi Reservation. There are genuine C. Quantification of Water Rights for the Lummi issues of material fact regarding the Lummi Nation's Reservation historical use of groundwater at the time of the Treaty. Because the Court cannot determine the purpose of the 3. The balancing of equities is inherently factual and Lummi Reservation at this time, the Court consequently cannot be decided in connection with a motion for

Supp. of Mot. to Dismiss) (stating that "it is doubtful whether agriculture was a 'primary purpose' of the Lummi Reservation. . . [*53] . Accordingly, there may have been no water reserved for that purpose."). Because the Bel Bay litigation became moot, the Court never considered Ecology's argument.

Chase Nielson Page 22 of 22 2003 U.S. Dist. LEXIS 28980, *56 summary judgment. Even if the Court were to engage in IT IS SO ORDERED. such an inquiry, there are genuine issues of material fact that would preclude summary judgment. DATED this 21th day of February, 2003. 4. Based on the present record, the Court cannot determine the purpose of the Lummi Reservation, The /s/ Thomas S. Zilly determination of the applicability of the practicably irrigable acreage standard must await a full consideration of all the evidence concerning the purpose THOMAS S. ZILLY of the reservation. This cannot be determined at this preliminary stage on the motion for partial summary UNITED STATES DISTRICT JUDGE judgment.

Chase Nielson