# White Mountain Apache Tribe v. United States

> United States Court of Claims · February 6, 1987 · 11 Cl. Ct. 614

URL: https://www.frixlaw.com/law-library/cases/6825845

## Case

- **Full name:** WHITE MOUNTAIN APACHE TRIBE OF ARIZONA v. United States
- **Court:** United States Court of Claims
- **Decided:** February 6, 1987
- **Citations:** 11 Cl. Ct. 614; 1987 U.S. Claims LEXIS 20
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Nettesheim
- **Judges:** Nettesheim
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6825845

## How later opinions describe it (automated extraction)

- holding that “new evidence utilizing a new theory” that was not part of pretrial exchanges should not be permitted to be introduced at trial
- discussing resource mismanagement claims

## Opinion text

OPINION
NETTESHEIM, Judge.
INTRODUCTION
Docket 22 began as a first amended petition filed in the Indian Claims Commission on October 18, 1950, by the White Mountain Apache Tribe of Arizona (“plaintiff”) and another tribe that departed the litigation on January 19, 1981, after settlement of its claims. Suit was authorized by the Indian Claims Commission Act of August 13, 1946, Pub.L. No. 79-726, § 2 , 60 Stat. 1049 , 1050, as amended, 25 U.S.C. § 70a (1976) (omitted from Code pursuant to Commission termination on Sept. 30, 1978). On May 25, 1959, the Commission severed Docket 22 into a number of cases. A second amended petition was filed on October 27, 1959, as Docket 22-H asserting claims for mismanagement of tribal resources and for a general accounting. Plaintiffs aboriginal land claims were adjudicated as Docket 22-D in 1969. San Carlos Apache Tribe v. United States, 21 Ind.Cl.Comm. 189 (1969). Docket 22-H was transferred to the United States Court of Claims on December 15, 1976, pursuant to the Act of October 8, 1976, Pub.L. No. 94-465, 90 Stat. 1990, 25 U.S.C. § 70v (1976) (omitted from Code pursuant to Commission termination on Sept. 30, 1978), and then continued in the successor United States Claims Court. This opinion addresses all of plaintiffs claims in Docket 22-H for mismanagement of the water, rangeland, and timber on the Fort Apache Indian Reservation (the “reservation”). Plaintiffs claims for general and special accountings are proceeding separately.
The resource mismanagement claims were tried in September and October 1986, following a three-day site inspection on the reservation in early September. Since these claims were tried 27 years after the second amended petition was filed, and since the trial addressed many issues (all but a few lending themselves to explication by expert witnesses), identifying with some precision what the trial was about is important.
Over the years that this matter has been before the Indian Claims Commission, the Court of Claims, and this court, the parties have leveled charges of delay in adjudicating plaintiffs claims. In previous decades defendant may have been dilatory, as plaintiff charges, but during the four-year period that this court has presided over the case, the Government has met every court-imposed deadline. Whether or not plaintiff delayed trial, nevertheless, has no bearing on the merits of plaintiffs claims that are considered in this opinion.
Although the evidence adduced at trial described the relationship between plaintiff and the Bureau of Indian Affairs (the “BIA”) of the Department of Interior, the wisdom vel non of the BIA’s (and its predecessor entities’) providing employment for many of plaintiff’s members, managing the reservation’s timber resources, and acting as the bureaucracy that controls much of *619 the federal funding to plaintiff, as well as expenditures of plaintiffs own funds, is a matter commended to the Congress. Judicial inquiry does not extend to the policy questions necessarily implicated by a trial of this nature, but is restricted by the Indian Claims Commission Act to deciding specified claims. 25 U.S.C. § 70a provided in pertinent part:
The Commission shall hear and determine the following claims against the United States on behalf of any Indian Tribe ...: (1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the United States if the United States were subject to suit; ... (5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity. No claim accruing after August 13, 1946, shall be considered by the Commission.
Plaintiffs theory of the case is that since the reservation was created, the Secretary of the Interior and his delegates have administered plaintiffs water, rangeland, and timber resources—in fact, the entire reservation—as a source of water for the downstream Salt River Federal Reclamation Project and not for the benefit of plaintiff. Although plaintiff characterized its cause of action as fraudulent mismanagement, the court determined to hold plaintiff to proof by a preponderance of evidence, not the more rigorous standard of clear and convincing evidence required for fraud. See Loesch v. United States, 227 Ct.Cl. 34, 55 , 645 F.2d 905, 921 , cert. denied, 454 U.S. 1051 , 102 S.Ct. 618 , 70 L.Ed.2d 604 (1981). Defendant’s theory of the case is that there has been no mismanagement with respect to any of the three resources, and that at no time prior to August 13, 1946, did the Secretary of the Interior fraudulently mismanage the reservation for the benefit of downstream, non-Indian water users.
The source of the Government’s duty is not the same for each of the three claims. With respect to management of the reservation’s forest, including the harvest and sale of plaintiff’s timber, a comprehensive federal regulatory scheme defines the Government’s duties. United States v. Mitchell, 463 U.S. 206, 224 , 103 S.Ct. 2961, 2971 , 77 L.Ed.2d 580 (1983); see White Mountain Apache Tribe v. Bracker, 448 U.S. 136 , 100 S.Ct. 2578 , 65 L.Ed.2d 665 (1980). In contrast, the Government’s duties regarding the reservation’s range-land derive from the Secretary of Interior’s control or supervision over grazing as a source of revenue to plaintiff. See Navajo Tribe of Indians v. United States, 224 Ct.Cl. 171, 183 , 624 F.2d 981, 987 (1980) (cited in United States v. Mitchell, 463 U.S. at 225 , 103 S.Ct. at 2972 ). Any duty concerning water, too, must be based on an obligation imposed by law or gratuitously assumed by the Government to control or supervise plaintiff’s water resources. Although plaintiff never identified its source, the court assumes that such a duty is based on the requirement that the Department of the Interior approve appropriations from Indian funds for irrigation projects.
The Supreme Court in Mitchell ruled that a claim for damages is implied from comprehensive regulation of Indian resources. It cited Navajo Tribe (a case under the Indian Claims Commission Act) for the companion proposition that a fiduciary duty is implied from the “elaborate control” of Indian property. Mitchell, 463 U.S. at 225 , 103 S.Ct. at 2972 . Under Mitchell , then, no fiduciary duty arises absent comprehensive regulation of Indian resources. A suit for damages for breach of fiduciary duty to act affirmatively does not arise independent of the linchpin treaty, statute, executive order, or regulation that charges the Government with specific duties to act. The statutes and regulations concerning forest management in Mitchell and the case at bar exemplify such affirmative duties.
Even though Mitchell was not a case arising under the Indian Claims Commission Act, the case defines this court’s juris *620 diction to consider plaintiffs claims. It is true that the jurisdictional grant of the Indian Claims Commission Act recognizes a cause of action based on fair and honorable dealings, but the relationship whereby the Government obligates itself to a tribe must derive from a treaty, statute, regulation, or executive order. Sac & Fox Tribe v. United States, 179 Ct.Cl. 8 , 27, 383 F.2d 991 , 1001, cert. denied, 389 U.S. 900 , 88 S.Ct. 212 , 19 L.Ed.2d 217 (1967); Gila River Pima-Maricopa Indian Community v. United States, 135 Ct.Cl. 180, 189 , 140 F.Supp. 776, 780 (1956).
Mitchell , however, did not address the issue whether a claim for breach of fiduciary duty can be based on the Government’s actions once it has undertaken within the exercise of only general powers over Indian affairs to control or supervise Indian property for the benefit of a tribe. Navajo Tribe is authority that a breach in this situation is actionable, such as the Government’s instituting and supervising the grazing permit system on the reservation in this case, even though no statutory or regulatory scheme required the Government to generate income for the tribe from the rangeland. The record is unclear whether the Government’s control over expenditures of Indian funds for irrigation projects was “elaborate.” The Court of Claims also recognized a breach of duty apart from any elaborate control of a resource on an Indian reservation, another issue not addressed by Mitchell . For example, in this case, although the Government had no statutory or regulatory duty to develop irrigation facilities on the reservation, a failure to protect water resources can be actionable. See Gila River Pima-Maricopa Indian Community v. United States, 231 Ct.Cl. 193, 208 , 684 F.2d 852, 861 (1982) (per curiam). The notion that the United States has a “special relationship” to protect the water resources based on establishing the reservation, enlarging it, and recognizing the need to protect the water supply established the Government’s duty in that case.
A question exists whether after Mitchell the breaches of fiduciary duty not occurring within the context of an elaborate control of a given resource still can be recognized. The court deems that the prudent course is to decide the case tried before it, even though jurisdictional problems seem to lurk.
The volume and complexity of the evidence and the variation in the legal standards for different claims require that the facts and law be discussed individually with respect to each of the three resource claims. Further, plaintiff’s claims that the reservation was fraudulently mismanaged for the production of water are discussed separately with respect to the rangeland and forest. Although no liability is found for plaintiff’s claims for mismanagement of its water resources, sufficient findings and conclusions are stated on damages so that the record reflects an assessment of the evidence measured against the applicable legal standards. In considering all three resource claims, the court also addresses separately those claims arising both before the jurisdictional cutoff of the Indian Claims Commission Act on August 13, 1946, and thereafter in order to determine if a course of wrongful conduct occurring before August 13, 1946, continued after that date. 1
The evidence admitted consists of testimony and documents either referred to during trial and not excluded or referred to in expert reports. That evidence discussed specifically in this opinion is deemed sufficient to support the finding in question. Some evidence not discussed is deemed cumulative of the evidence discussed. It *621 should go without saying that mentioning every exhibit and all the points made by each witness would be impossible. Similarly, some exhibits and portions of testimony that involved lines of reasoning that did not assist the determination of the central issues of each claim also are left unmentioned.
Several general observations may be made. Because of the remoteness of the events occurring before 1946, most of the evidence came through the filter of interpretation by experts. Therefore, documentary evidence retrieved from archives and similar sources was deemed the most reliable insofar as it represents contemporaneous observations by percipient witnesses, who, in many cases, were government agents. As defendant argues, however, the analytical tools available today cast doubt on the veracity of what some of these witnesses observed and recorded as causative agents. Documentary evidence thus becomes determinative only when its sheer volume and consistency are probative that the observers during the late 1800’s and early part of this century accurately reported what was happening on the reservation.
The court was privileged to make an on-site inspection of the reservation. This inspection was organized by counsel for both parties, each designating sites to be visited by helicopter or overland vehicle for one and one-half days. In addition, the court took a fixed-wing flight crisscrossing the entire reservation. The court’s observations confirmed some reports made in old documents, assessed the present-day condition of the rangeland and timber resources, and gave vivid context to the Government’s past timber harvesting and current forest management practices.
Finally, this is a case wherein the Government is willing to suffer a money judgment against an Indian tribe. Plaintiff has sued for $1,250 billion, and defendant admits liability for mismanagement of two forest fires in the amount of $10,400.
BACKGROUND
The trust relationship that is central to this litigation commenced in 1872 when plaintiff, along with the San Carlos Apache Tribe, was placed on the White Mountain Apache Indian Reservation in east central Arizona by executive orders issued between November 9,1871, and July 21,1874. This original reservation was administered by the San Carlos Agency located 90 miles from the United States Army Camp at Fort Apache. For ease of administration, both plaintiff and the San Carlos tribe were moved near the San Carlos Agency. When this policy proved unworkable, the members of plaintiff tribe moved back to Fort Apache, where they were supervised by the United States Army camp located there. In 1897 the original White Mountain Apache Indian Reservation, comprising over 2.5 million acres, was divided into the Fort Apache and San Carlos Indian Reservations. Act of June 7,1897, ch. 2, 30 Stat. 62 , 64.
Plaintiff’s reservation contains over 1,664,000 acres, or approximately 2,602 square miles, located northeast of Phoenix, in an area of forests and rocky hills. The reservation is heavily forested, with more than 685,000 acres of commercial forests. The distance between the north and south boundaries is 30 to 40 miles. The reservation extends approximately 75 miles east to west along the Mongollon Rim, its northern boundary. On the north the reservation is bounded by the Sitgreaves and Apache National Forests, on the west by the Tonto National Forest, on the east by the Apache National Forest, and on the south by the Tonto National Forest and the San Carlos Indian Reservation. An area of dramatic topographical contrasts, the reservation has lush forests and plains marked by shallow to deep arroyos, or gullies. Although rich in natural resources, the reservation did not offer an easy living to plaintiff.
Attributed to the 1898 Annual Report of the Commissioner of Indian Affairs by one of defendant’s experts was the following statement:
*622 “When it is remembered these Indians were placed on this reservation with absolutely nothing—the most hated of all the western Indians, kept strictly within the limits of their reservation, with no market but the army post, and what they now have is the result of their own labor, and considering the obstacles they had to overcome in this mountainous country— little as it seems, they have done exceedingly well.”
If the mountains and forests are the most striking physical features of the reservation, plaintiff would regard as its paramount resource the Salt River. “Practically the entire Reservation drains to the Salt River ...,” observed the June 1, 1944 “Post-War Program” for the reservation. 2 Prior to 1872 when they were placed on the White Mountain Apache Indian Reservation, the Indians comprising plaintiff tribe had been nomads, with a history of agriculture, growing corn, wheat, beans, and vegetables, which they continued growing on the reservation by irrigating with diversion dams and ditches small areas of benchland along the streams. Plaintiff had an established history of agriculture. The Indian Claims Commission found that the tribes comprising the Western Apache, which included other nearby tribes, satisfied an estimated 25 percent of their diet by the crops they grew. San Carlos Apache Tribe v. United States, 21 Ind.Cl.Comm. at 208. Because the reservation was a long distance from commercial centers, the markets for plaintiffs produce after the reservation was established were limited. 3 As the game that plaintiff hunted became scarce, government rationing became important to plaintiffs survival, and, as will be discussed, the Indian agents on the reservation looked toward development of other resources for producing income for the tribe.
DISCUSSION
I. Claims for mismanagement of plaintiffs water resources
According to Dr. Charles E. Brockway, defendant’s expert hydrologist and engineering economist, a watershed is defined as the topographic area from which water on the surface flows towards a central stream. The watershed of the Salt River encompasses principally the Verde, White, and Black Rivers. The Verde River itself is not on the reservation.
*623 [[Image here]]
The Black River forms the southeastern boundary of the reservation from the far east and joins the White River which flows from the northeast through the reservation to form the Salt River, which is the southern border of the reservation. From that point the Salt River flows west. Tributaries to the Salt River are creeks within the reservation, including the Cedar, Carrizo, Cibecue, and Canyon Creeks.
Southwest of the reservation a series of structures regulates and stores the flows of the Salt and Verde Rivers. Downstream of the reservation on the Salt River are the Roosevelt Dam and Reservoir; Horse Mesa Dam and Apache Lake; Mormon Flat Dam and Canyon Lake; and Stewart Mountain Dam and Saquaro Lake. These structures were constructed from 1905 to 1930 as the Salt River Federal Reclamation Project and utilize all the natural and surplus flow of the Salt River coming off the reservation that has not been appropriated and used upstream. The Verde River runs through the Bartlett and Horseshoe Dams and their corresponding reservoirs.
Roosevelt Dam, the earliest of these structures, is the primary storage facility for the Salt River Federal Reclamation Project. After passing through the dams with their corresponding power plants and lakes, the Salt River meets the Verde River above the Granite Reef Diversion Dam, also part of the Salt River Federal Reclamation Project. Irrigation canals sprout on either side of the Granite Relief Diversion Dam. South of Phoenix the Salt River joins the Gila River, which runs west into the Colorado River system. In addition to the Salt River Federal Reclamation Project, the Central Arizona Project brings water from the Colorado River into the greater Phoenix area above the Granite Reef Diversion Dam.
The combined storage capacity of the Roosevelt, Horse Mesa, Mormon Flat, and Stewart Mountain Dams, is 1,755,000 acre feet. The Verde River generates total storage capacity in the Horseshoe and Bartlett Dams of 317,700 acre feet. The contribution of the Salt River to the water *624 storage and distribution project that bears its name is undisputed. From this premise, however, plaintiff infers that the Secretary of the Interior and his delegates (the “Government”) have manipulated the Salt River on the reservation for the benefit of downstream users, consisting of the Salt River Federal Reclamation Project itself and all the agricultural and domestic users in the metropolitan areas southwest of the reservation. Plaintiff’s principal evidentiary support for this contention was marshaled by its expert Thomas M. Watson, a civil engineer and hydrologist. Plaintiff also relied on hydrologist Charles P. Corke, a BIA employee since 1954, who has served as Deputy Assistant Commissioner of the Division of Economic Development, with portfolio of Assistant Commissioner, and who once chaired an Indian Irrigation Task Force. Mr. Corke testified as a percipient witness who was familiar with the hydrology of the reservation, the BIA’s policies with respect to development of irrigation, and the quantity of irrigated acreage on the reservation.
Defendant countered with the expert testimony of Dr. Brockway; Dr. Joel R. Hamilton, an agricultural economist; and Dr. Edward M. Angel, a historian. Mr. Watson and Dr. Brockway may be regarded as opposing experts; they are both civil engineers with backgrounds in hydrology. Dr. Hamilton’s principal contribution was presenting and analyzing historical documents. This was the sole focus of Dr. Angel’s testimony.
If liability had turned on expert analysis of the hydrology of the reservation and its potential for development, which it emphatically does not, Dr. Brockway exhibited more extensive and in-depth experience than Mr. Watson in feasibility and evaluation analyses of water supply and distribution projects. As a tenured research professor who serves as an agricultural engineering specialist at the University of Idaho, not surprisingly Dr. Brockway also has published more in the field than Mr. Watson. Plaintiff indeed is fortunate to have an advisor as talented and committed as Mr. Watson, who has participated in developing irrigation projects on the reservation. He exhibited an impressive command of the evidence in testifying with respect to all three major resources. However, Dr. Brockway brought superior qualifications and more experience in the field to bear.
The gravamen of plaintiff’s claim for mismanagement of water resources is that the Government restricted the tribe to the irrigation facilities developed by the BIA before the turn of the century. According to plaintiff, the Government thereby thwarted or suppressed development of irrigation facilities for the reservation’s practicably irrigable acreage. These actions were taken, plaintiff charges, to manage the reservation solely for the benefit of downstream users. So single-minded was the Government’s purpose of enhancing water flow off the reservation to benefit downstream users, that the Government managed the tribe’s rangeland and forest resources to this end, in plaintiff’s view.
A. Liability (pre-1946)
1. A recapitulation of some of the procedural history of this case shows why for the most part plaintiff’s liability theories must be rejected as legally irrelevant. The amended petition that gave rise to this litigation did not identify a claim for mismanagement of plaintiff’s water resources in other but the most general terms. White Mountain Apache Tribe v. United States, 8 Cl.Ct. 677, 679 (1985) (order granting and denying motion to dismiss). When, in response to answers to interrogatories, plaintiff revealed that it was making a claim that the Government was obligated to develop all the practicably irrigable acreage on the reservation, defendant moved to dismiss the claim. See White Mountain Apache Tribe, 8 Cl.Ct. at 680 -81 (quoting interrogatories and responses). The claim was dismissed, although plaintiff was allowed to pursue companion claims that the Government had suppressed its water rights or excessively appropriated water for the benefit of downstream users:
Plaintiff’s contention that defendant is liable for neglecting to develop “all the *625 potentially (or practicably) irrigable acreage” on the Fort Apache Reservation fails to state a claim upon which relief may be granted. Gila River Pima-Maricopa Indian Community v. United States, 231 Ct.Cl. at 213-14 , 684 F.2d at 865 , holds that the United States has no obligation to construct irrigation facilities for the Indians. Plaintiff’s claim, however, is dismissed only to the extent that damages are sought concerning a development obligation. Any claim alleging that the Government diverted, prevented, or neglected to supply water for irrigation remains viable and shall be adjudicated under plaintiff’s claims concerning water resources or suppression of Winters Doctrine rights.
White Mountain Apache Tribe, 8 Cl.Ct. at 684 . The exact nature of the claims remaining in litigation was still unclear. See id. A motion for reconsideration of the one claim dismissed was denied. White Mountain Apache Tribe v. United States, 9 Cl.Ct. 32, 33 (1985) (order denying motion for reconsideration).
The motion to dismiss had been granted on September 4, 1985, and the motion for reconsideration was denied on October 9, 1985. After plaintiff had filed its expert reports on its claim for mismanagement of water resources on January 18, 1986, defendant ascertained that, notwithstanding the September and October 1985 rulings, plaintiff would seek to prove damages based on the failure to develop irrigation facilities for all acreage on the reservation that, as of 1986, could be irrigated by existing technology. Damages were also predicated on the value to downstream users of water coming off the reservation by means of the Salt River. Defendant then moved in limine asking that the damage claims be rejected out of hand in advance of trial. This the court refused to do because defendant was challenging plaintiff’s liability case more than its theories for damages. White Mountain Apache Tribe v. United States, 10 Cl.Ct. 115, 120 (1986) (order granting and denying motion in limine). However, the court cautioned that plaintiff’s theory of liability was likely to fail based on entrenched legal principles, now once again explicated in this opinion.
Seminal to plaintiff’s water resource claim, but beyond this court’s jurisdiction to quantify, are Winters Doctrine rights. The Winters Doctrine derives from the Supreme Court’s decision in Winters v. United States, 207 U.S. 564 , 28 S.Ct. 207 , 52 L.Ed. 340 (1908). When the Fort Belknap Indian Reservation was created by treaty, no provision reserved to the Gross Ventre Indians the water in the Milk River or its tributaries riparian to the reservation. Settlers and other riparian owners attempted to appropriate waters of the river under state law once Montana was admitted into the union by statute. The Winters Doctrine was articulated during the halcyon days when the Supreme Court spoke through one opinion joined in by all justices save one, who merely noted his dissent. The Court held that the Indians through treaty did not implicitly give up the means of irrigation. Prior to the treaty the Indians “had command of the lands and the waters—command of all their beneficial use, whether for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization.” Id. at 576 , 28 S.Ct. at 211 . The agreement impliedly intended to reserve the waters of the river for “use which would be necessarily continued through years,” id. at 577 , 28 S.Ct. at 211 , consistent with the purposes of the treaty: The reservation was formed to change the “nomadic and uncivilized” habits of the tribe and make them into “a pastoral and civilized people,” id. at 576 , 28 S.Ct. at 211 ; without water to irrigate the lands, the reservation would be “practically valueless,” and “ ‘civilized communities could not be established thereon,’ ” id.; and, absent the acknowledgement of reserved water rights, the purpose of the agreement would thus be impaired or defeated. Id. at 577 , 28 S.Ct. at 211 ; accord United States v. Powers, 305 U.S. 527, 533 , 59 S.Ct. 344, 346 , 83 L.Ed. 330 (1939).
The power of the Federal Government to reserve the waters and exempt them from appropriation under the laws of Montana *626 was upheld over rights allegedly derivative of the statehood statute, but the Supreme Court in Winters did not attempt to quantify the amount of reserved water. The Ninth Circuit, responsible for the decision that was reviewed by the Supreme Court in Winters v. U.S., 143 F. 740 (9th Cir.1906), took the initiative. Conrad Investment Co. v. United States, 161 F. 829, 832 (9th Cir.1908), equated the Winters Doctrine rights to an amount of water “reasonably necessary, not only for present uses, but for future requirements.” Almost 60 years later, the Supreme Court announced the standard for measuring reserved water rights. In Arizona v. California, 373 U.S. 546 , 83 S.Ct. 1468 , 10 L.Ed.2d 542 (1963), the Court upheld a special master’s finding made in an allocation of rights to the Colorado River among various claimants, including five Indian reservations in Arizona, California, and Nevada, represented by the Federal Government. He found that
the water was intended to satisfy the future as well as the present needs of the Indian Reservations, ... [ruling] that enough water was reserved to irrigate all the practicably irrigable acreage on the reservations____
373 U.S. at 600 , 83 S.Ct. at 1497 . Rejecting the notion that the Winters Doctrine rights should be based on a tribe’s population, the Court concluded “that the only feasible and fair way by which reserved water for the reservation could be measured is irrigable acreage.” Id. at 601 , 83 S.Ct. at 1498 .
The term “practicably irrigable acreage” is now recognized as the quantification of a tribe’s Winters Doctrine rights. However, more recent Supreme Court decisions manifest a restrictive interpretation of that measure. Cappaert v. United States, 426 U.S. 128 , 96 S.Ct. 2062 , 48 L.Ed.2d 523 (1976), stated that Winters had held that a reservation of water rights sufficient to accomplish the purpose of the reservation is made when the Government reserves land for a reservation or other federal enclave. Cappaert went on to state boldly: “The implied-reservation-of-water rights doctrine, ... reserves only that amount of water necessary to fulfill the purpose of the reservation, no more.” 426 U.S. at 141 , 96 S.Ct. at 2070 (citing Arizona v. California, 373 U.S. at 600-01 , 83 S.Ct. at 1497-98 ). The law is now settled that “Congress reserved ‘only that amount of water necessary to fulfill the purpose of the reservation, no more.’ ” United States v. Mexico, 438 U.S. 696, 700 , 98 S.Ct. 3012, 3014 , 57 L.Ed.2d 1052 (1978) (quoting Cappaert and Arizona v. California). The Supreme Court in United States v. New Mexico ventured a step further:
Each time .this Court has applied the “implied-reservation-of-water doctrine,” it has carefully examined both the asserted water right and the specific purposes for which the land was reserved, and concluded that without the water the purpose of the reservation would be entirely defeated.
438 U.S. at 700 , 98 S.Ct. at 3014 (emphasis added).
In the later case of Arizona v. California, 460 U.S. 605 , 103 S.Ct. 1382 , 75 L.Ed.2d 318 (1983), the extent of the reservation of water rights was described as “an allotment of water necessary to” ‘make the reservation liveable.’ ” 460 U.S. at 616 , 103 S.Ct. at 1389 (quoting Arizona v. California, 373 U.S. at 599-600 , 83 S.Ct. at 1497 ). The Court took occasion to emphasize that measuring reserved water rights must be a “fixed calculation of future water needs.” 460 U.S. at 617 , 103 S.Ct. at 1390 (emphasis in original).
This case involves the Winters Doctrine only insofar as plaintiff asserts that BIA officials attempted to frustrate any realization of plaintiff’s Winters Doctrine rights. However, this is not a Winters Doctrine rights case insofar as the Claims Court lacks jurisdiction to adjudicate claims over plaintiff’s reserved water rights in terms of the right to future use. That question is being litigated in Arizona state court. In re: General Adjudication of All Rights To Use Water in the Gila River System and Source, Nos. W-l—W-4 (Maricopa Co. Super.Ct., filed June 11,1979). In contrast, the purpose of the trial in this court was to determine whether the Government divert *627 ed or suppressed plaintiff’s use of water on the reservation for irrigation purposes pri- or to August 13, 1946. See Gila River Pima-Maricopa Indian Community, 231 Ct.Cl. at 213 n. 11, 684 F.2d at 864 n. 11 (case “primarily concerned with future water use ... plainly involves different considerations”).
As plaintiff was made aware by this court’s rulings before trial dealing with plaintiff’s water rights claims, the Indian Claims Commission Act, as interpreted by the Court of Claims, limits inquiry to the amount of water plaintiff could have diverted for irrigation, but did not, either because the Government suppressed the tribe’s diversion of water or because the Government directed or permitted diversion of water by others. Gila River Pima-Maricopa Indian Community v. United States, 231 Ct.Cl. at 209, 213-14 , 684 F.2d at 862, 865 . The Court of Claims said:
Except as necessary to comport with the standard of fair and honorable dealings with the Pimas and Maricopas, by either protecting their existing water supply or providing an equivalent alternative supply, the United States had no obligation to construct irrigation works for these Indians. American Indians Residing on the Maricopa-Ak Chin Indian Reservation v. United States, 31 Ind.Cl. Comm. 384 (1973); but see Pub.L. No. 95-328, 92 Stat. 409....
... But even if Winters applies fully to plaintiffs, we hold that, for monetary compensation on account of pre-August 1946 injuries under the Indian Claims Commission Act, these Indians are not entitled to damages for the failure of the defendant to supply them with all the water necessary to irrigate all the practicably irrigable acres of their reservation. The reason is that, as we have found, (a) the Indians were not in fact using more than 7,000 to 8,000 acres even when they had the full natural flow of the Gila River, and (b) they did not have the ability {i.e. capital) to build the facilities necessary for greater irrigation or to control the Gila River flow—in other words, they were unable to use more water than enough to cultivate 7,000—8,000 acres. The Indian Claims Commission Act, the aim of which was to grant monetary compensation for past (pre-August 1946) wrongs actually inflicted by the United States, does not call for damages based on theoretical maximum ‘rights’ that the Indians were wholly unable to utilize and to implement at that time, especially where the Government was under no moral or legal obligation to construct new facilities so that the Indians could then use the greater amount of water they now claim.
(Footnotes omitted; emphasis added.)
For purposes of this litigation, therefore, the concept of “practicably irrigable acreage” is relevant in the most limited sense, i.e., to define that amount of acreage that would have been irrigated by plaintiff had the Government allegedly not acted wrongfully by suppressing plaintiff’s use of water on the reservation or by diverting for its own or others’ use or permitting others to divert those waters. Plaintiff’s proof, through Mr. Watson, that 49,808 acres of the reservation are practicably irrigable using today’s sprinkler technology and high-lift pumps, which admittedly were not in use prior to August 13, 1946, is irrelevant. Plaintiff offered no evidence that the Government suppressed the use or development of irrigation facilities for that amount of acreage, or diverted water that was being applied on that amount of acreage for its own or others’ use, or permitted others to divert water used for irrigating 49,808 acres. The theoretical underpinning of plaintiff’s claim, which must be rejected, is that because the Salt River’s flow below the reservation benefited the Salt River Federal Reclamation Project, it can be inferred that the Government diverted water wrongfully from the reservation. Instead, the issue that this court can consider was framed correctly in plaintiff's October 28, 1983 answers to interrogatories—whether the Government suppressed plaintiff’s water uses on the reservation.
*628 Plaintiff cited no legal authority or introduced any evidence to identify the source or nature of the Government’s fiduciary duty with respect to the water resources of the tribe. Winters and its progeny impose no duty to advise Indian tribes about their water rights. The 1982 Court of Claims decision in Gila River Pima-Maricopa Indian Community denies any duty apart from treaty, statute, or agreement—none of which is present here—to develop irrigation facilities. See American Indians Residing on the Maricopa Ak-Chin Indian Reservation v. United States, 31 Ind.Cl. Comm. 384, 392-93 (1973). There was mention in the old documents that the appropriations from tribal funds for irrigation projects required the approval of the Secretary of the Interior. This control of Indian funds would seem to satisfy the Supreme Court’s requirement in Mitchell that a duty be based upon control of tribal monies or property. See Mitchell, 463 U.S. at 225 , 103 S.Ct. at 2972 .
The distinction between a duty to develop irrigation facilities and a duty not to discourage development is attenuated. Even though the Government has no developmental obligation, the failure to encourage plaintiff to undertake irrigation projects with its own resources may be culpable if irrigation projects were technically and economically feasible. See Gila River Pima-Maricopa Indian Community, 231 Ct.Cl. at 210 , 684 F.2d at 863 . This presumes that the Government was charged with the duty to test the technical and economic feasibility of such projects, but not to implement them with federal funds. As will be discussed, the BIA did investigate irrigation projects on the reservation and sought funding from the Government to supplement tribal funding.
2. Congress passed the Reclamation Act of 1902, Pub.L. No. 161, 32 Stat. 388 (1902) (the “Act”), to reclaim lands in the west through irrigation projects. Monies from the sale of lands in the arid states were to be used as a reclamation fund for the construction and maintenance of irrigation works. The Roosevelt Dam and Reservoir were among the projects authorized by the Act, reposing power for its administration in the Secretary of the Interior. Typically, irrigation projects under the Act, such as Roosevelt Dam and Reservoir, and the other networks built downstream of it, were and are subsidized by power generation plants, although the construction initially was funded by congressional appropriations. The Secretary of the Interior wears two hats in fulfilling his obligations (1) through the BIA for the trust responsibilities of the United States to Indians, Poafpybitty v. Skelly Royal Co., 390 U.S. 365, 374 , 88 S.Ct. 982, 986 , 19 L.Ed.2d 1238 (1968), and his obligations (2) as administrator of activities authorized by the Act. The Supreme Court in Nevada v. United States, 463 U.S. 110, 128 , 103 S.Ct. 2906, 2917 , 77 L.Ed.2d 509 (1983), rejected the notion that the Secretary simultaneously could not perform both obligations without comprising his obligations pursuant to the Winters Doctrine in representing in court an Indian tribe’s claim for reserved water rights.
Under the Act the Secretary administers the irrigation projects by contracting with a local association of landowners that takes over a project after it has been completed. The Salt River Valley Water Users’ Association (the “SRVWUA”), incorporated in 1903, is the entity managing the Salt River Federal Reclamation Project under contract with the Department of the Interior since 1907 and for the benefit of whose shareholders the project was developed. As plaintiff aptly charges, the SRVWUA has been voracious for every drop of water that comes off the reservation. In fact, the day after the United States Court of Appeals for the Ninth Circuit issued its decision on February 5, 1906, in Winters recognizing reserved water rights, the SRVWUA filed a notice of appropriation of water for all surplus and flood waters in the Salt River. The United States, through the United States Geological Survey of the Department of the Interior, filed an identical notice on the same day. These claims amounted to all the water in the river coming off the reservation, since the natural *629 flow of the Salt River had been appropriated by prior downstream landowners. Indeed, the study of water storage potential undertaken hy Arthur Powell Davis of the United States Geological Survey in 1903 before construction began on the Roosevelt Dam postulated that no upstream diversions would diminish the flow into the reservoir. These notices of appropriation did not negate, however, the notion that the Roosevelt Dam was “to store in the reservoir the surplus water in the Salt river over and above the normal flow of the river appropriated and used.” Hurley v. Abbott, No. 4564, slip op. at 7 (Ariz.Terr.Ct.1910) (cited to slip op. admitted as PX 1-35). Thus, later judicial declaration of upstream appropriations consistent with the Winters Doctrine was not preempted by the facts that downstream users had claimed all the natural flow or that the dam was designed to take all the flow the Salt River could give it.
After its storage capacity had been enlarged to account for sediment coming in from the Salt River, the Roosevelt Dam finally was closed in 1911. The Horse Mesa, Mormon Flat, and Stewart Mountain Dams were constructed through 1930. The Bartlett and Horseshoe Dams and Reservoirs on the Verde River were added in 1939 and 1945, respectively.
The Salt Water River Federal Reclamation Project came under scathing indictment in 1913, when the Reclamation Service, which succeeded to the United States Geological Survey’s responsibilities under the Act, was cited for incompetence and maladministration, especially regarding balancing the interests of the tribes on the Gila River reservation in favor of land speculators. See Report on the Investigation of the Salt and Gila Rivers—Reservations and Reclamation Service, H.R.Rep. No. 1506, 62d Cong., 3d Sess. 6 (1913). Not only did the congressional investigation conclude that “Indian interests have been most outrageously intermingled with the affairs of the Reclamation Service____,” id. at 3, but that “[i]f actual fraud does not exist, it can at least be said that many of the badges of fraud are evident [in the transactions examined]____” Id. at 17. The report even chastizes the decision to construct the Roosevelt Dam in the first place as not the optimum site for existing landowners, including Indians. The cost of construction of the Roosevelt Dam was deemed profligate and exclusively beneficial to the SRVWUA, which was created and began asserting its interests prior to the time when the Act provided for turning the project over to a landowners’ association. See id. at 8-11.
Although this early history is bleak and was cause for ousting the governmental officials involved, the fact is that the wrongs were inflicted not only on Indian tribes other than plaintiff, but on non-Indian original farmers who were not speculators. See id. at 12. In other words, the actions, culpable as they were, were not directed to benefit downstream landowners at the expense of an Indian tribe, but benefited certain non-Indian interests at the expense of both non-Indian farmers and Indian tribes. Moreover, neither plaintiff nor the reservation was involved.
It was not until 1979, when the W-l litigation commenced, that the Secretary of the Interior went to court to adjudicate plaintiff’s water rights. 4 Because Arizona is an appropriation state in which claims for water are recognized by priority, not proximity to the flow of water as in riparian states, rights to waters of the Salt River must be determined judicially. The waters of the Salt River below what is now Granite Reef Diversion Dam are distributed pursuant to the “Kent Decree” entered in Hurley v. Abbott. Plaintiff was not involved in that proceeding, which, in any event, did not adjudicate water rights to the Salt River as it flows through the reservation. The reserved water rights of Br *630 dians holding allotted land, however, on the Salt River Reservation and Camp McDowell Indian Reservation were adjudicated by the Kent Decree. In the 1910 opinion accompanying the decree, Chief Judge Kent described the purpose of the Roosevelt and Granite Reef Diversion Dams:
By contracts between the Government and the members of the water users association, the latter will be entitled to receive for their land their proportionate share of the surplus water that may be stored by the Government in its impounding reservoir____
Slip op. at 7-8.
The Kent Decree determined the rights appurtenant to the parcels of land and the rights of their owners to water under the constraint that only completed appropriations could be recognized. Thus, a landowner actually must have diverted water and placed it to a beneficial use upon the land: “The right given by such an appropriation is strictly not a right to the water itself, but a right to the use of the water----” Id. at 8. A mere declaration of intention to appropriate would not suffice.
Plaintiff argues that although the Kent Decree was issued after the Winters decision, 5 no determination was made of the Indians' reserved water rights. This is not an accurate characterization of the proceeding. The Federal Government intervened in the proceeding “as guardian of a number of Indian settlers.” Id. The rights of a tribe were not adjudicated, and Winters Doctrine rights are not individual. However, the Kent Decree acknowledged the prior right over all other appropriators (due to longevity of prior use) of the Indians on the Salt River Reservation. The Indians were allotted 500 miners’ inches, but Judge Kent increased the entitlement to 700 because the lesser amount was insufficient to irrigate. Id. at 19. Also considered was the inability of the Indians on the Camp McDowell Reservation to divert an amount necessary for the proper irrigation of their land. See id. at 20. Chief Judge Kent further reserved jurisdiction to adjust the duty of water (that amount necessary for the successful and economical cultivation of the land) as conditions may require. Id. at 11.
Plaintiff next contends that the Kent Decree effectively abrogated plaintiff’s Winters Doctrine rights because rights to all the flow of the Salt River had been adjudicated. To the contrary, the Kent Decree by its terms decided claims of landowners below the Granite Reef Diversion Dam. More significantly, however, Judge Kent considered only completed appropriations. The Kent Decree has not prevented plaintiff, as an upstream beneficial landowner, from initiating, let alone completing, an appropriation of the Salt River waters.
3. The court’s inquiry focuses on those acts by Government representatives that could constitute frustration or suppression of irrigation projects once they had been recommended for development by the Government. Underscored is the legal principle that the Government had no duty to develop irrigation facilities or construct them with its own funds. The “Post War Program” of June 1, 1944, says that the first canals reported were constructed in 1874. Thereafter, the Indians took out “numerous canals ... generally with some government assistance.” Dr. Hamilton concedes in his report that, until after the turn of the century, “[m]uch of the early construction of irrigation facilities was due primarily to Indian initiative, with a minimal amount of government encouragement and support____” The evidence did not reveal any later instances of plaintiff’s (or individual Indians’) proposing the expansion of irrigation facilities (which is not surprising because the Government during this epoch was furnishing technical expertise). However, no evidence was introduced to support the inference that the tribe was prevented from taking the initia *631 tive to develop and finance such projects, although Government approval was required for outlays from tribal funds. Thus, the scenario to be examined is what happened after the Government considered irrigation projects.
The documents that describe events that took place 60-80 years ago primarily were introduced through the testimony of Dr. Hamilton, as corroborated and supplemented by documents referred to by other expert witnesses, including Mr. Watson and Dr. Angel. Although plaintiff asserts that in the early 1900's agriculture would have flourished on the reservation with adequate irrigation, the documentary evidence strongly supports a finding that its prospects were limited. Agriculture traditionally had been practiced by the Indians of both plaintiff and the San Carlos Indian Tribe before the reservation was established. As of 1898, the year after the Fort Apache Indian Reservation was created, approximately 1,230 acres were irrigated along the streams by diversion dams and ditches. The principal market for the alfalfa, corn, and wheat raised by individual Indians was the United States Army post; other commercial markets were many miles distant over the mountainous terrain. See supra note 3 and accompanying text. The farming skills of the Indians were rudimentary and their practices unconventional, e.g., custom dictated that after the death of an Indian who farmed a plot of land, it would be left to lie fallow for several years. The elements also conspired against the irrigation structures that had been constructed when torrential rains repeatedly wrecked the ditches and dams.
Annual Reports were prepared for the Commissioner of Indian Affairs by the various United States Indian Agents or Superintendents of the BIA and its predecessor entities at the Fort Apache Indian Agency and forwarded by the Commissioner to the Secretary of the Interior. See also supra note 3. In the Annual Report for 1898, Indian Agent Charles D. Keyes reported that the Indians needed assistance in building irrigation ditches to water large tracts of land and that there were “large tracts of excellent land” above the rivers which “could be converted into the most productive farms if water was supplied.” This project “would not require a large outlay of money,” and “the Indians would gladly do the work for small wages.” The report continued:
The land on the north fork of White River alone that could be redeemed has been ... [variously] estimated from 15,-000 to 25,000 acres. It would require a skilled engineer to survey the ground and locate the dam, but there is no question of its feasibility. The project is too great an undertaking for the Indians, and unless the Government takes it in hand this land, which would furnish permanent support for the greater part of the tribe, will remain a grazing ground for the Indian ponies and burros.
Although the cost of financing the development of irrigation may have been minimal, plaintiff offered no evidence or legal authority that the Government obligated itself to supply the funding. Moreover, the feasibility of irrigating an estimated 15,000 to 25,000 irrigable acres was not supported by any subsequent engineering study.
The Annual Report for 1900 recommended that the “Government furnish a competent engineer to survey irrigation ditches along larger streams and expend a few thousand dollars in starting a reasonably good system of irrigation” for the Indians. An engineering feasibility study was performed in 1900 and 1901. The engineer retained for the study submitted plans for developing irrigation on a total of 13,800 acres—5,000 on the west side of the North Fork of the White River, 8,000 on the northwest side of Bonito Creek, and 800 on Cibecue Creek. Dr. Brockway was the only defense witness of the opinion that part of the Cibecue project was implemented insofar as he viewed it as improving existing diversions on Cibecue Creek. Plaintiff says that the Cibecue project was not pursued because, as Indian Agent A.A. Armstrong wrote in 1901, valuable copper lands in that area might be cut off. This was Agent Armstrong’s reason for waiting *632 for completion of the other projects to augment the facilities at Cibecue. The 1927 Annual Report by Superintendent Charles L. Davis reported that “larger units can be taken under the several ditches there, but the supply of water is too limited for any extensive undertakings.” The evidence on the extent to which the Cibecue project was implemented or the reasons why it was not is inconclusive.
According to plaintiff, the project at Bonito Creek was not undertaken because H.O. Stabler of the United States Forest Service was of the view in a 1906 report on the proposed annexation of reservation forest to national parks that the downstream users’ rights were paramount:
I believe that in this way two or three townships of productive land could be put under ditch. I hardly think that the Reclamation Service would approve such an undertaking until it had been fully determined after several years experience that the amount of water needed for this undertaking could be spared safely from the Salt River Project at Roosevelt.
Dr. Brockway pointed out that Mr. Stabler cannot be credited with knowing very much about irrigation: Two or three townships comprise 69,000 acres, and the highest estimate for irrigable acreage on the reservation had been 25,000 acres. Dr. Brockway was correct that the initial engineering report on the 8,000-acre project for all practical purposes was never mentioned again.
For the period 1900-August 13, 1946, the only proposed irrigation developments to receive substantial encouragement and support by the Government were two related projects on the White River. One was the so-called Bear Flat Project for 5,000 acres on the North Fork of the White River, and the other was the Whiteriver Power and Irrigation Project for from 500 to 5,000 acres. Defendant argues that the projects for reduced acreage were pursued because the earlier reports vastly overestimated the amount of irrigable acreage, given the records indicating that far fewer acres were suitable for irrigation and the existing level of technology. Plaintiff’s position would seem to be that the Government was obligated to follow through with these projects once they were recommended, irrespective of considerations of technical and economic feasibility, even though federal funding was required.
The 1913 Annual Report revived interest in the 5,000-aere Bear Flat Project:
It is very desirable that steps be taken for the irrigation of some five thousand acres of land lying within six miles of the agency. This would make it possible for the Indians to raise a greater food supply and to farm along better lines. In addition, it would bring their work in one place so that it could have more satisfactory and intelligent supervision.
C.A. Engle, Assistant Engineer, United States Indian Service, authored a report dated November 13, 1914, on “power and irrigation possibilities” on the reservation, noting in pertinent part:
Owing to the mountainous character of the country there is but one tract of considerable size that seems susceptible of irrigation. This is a tract of about 5,000 acres of level mesa land lying to the west of Fort Apache. While the irrigation of this land would greatly benefit the Indians, it cannot be said that they have a valid right to the water for its irrigation. Any attempt to increase the irrigated area in this reservation to such an extent would certainly be an invasion on the water rights of the Salt River Valley and would meet with the opposition of the water users. The only way in which a portion of this land might be put under water would be to transfer to it the water now being used on an equal area of river bottom lands. These bottom lands, being subject to the erratic changes of the stream channels caused by the frequent floods, which also destroy the diversion dams and ditches, this transfer might warrant serious consideration, especially in conjunction with the new power plant contemplated at the Whiteriver Agency.
(Emphasis added.)
Superintendent of Irrigation F.R. Schanck, of the United States Indian Ser *633 vice in California, submitted a letter dated March 31, 1914, to the Commissioner of Indian Affairs, forwarding Engle’s November report (which appears to be post-dated). At this point the project took the objective of irrigating 3,000 acres of the Bear Creek tract, as well as providing power to the United States Army Post and agency school. Mr. Schanck opined that the tract, consisting of from 3,000-6,000 acres, “is probably the only one of any considerable area which can be irrigated on the Fort Apache Reservation.” He suggested that the cost of irrigation might be defrayed by supplying power to the Army Post. Mr. Schanck envisioned that funds would be provided by the Government in increments as the project progressed. However, he cautioned, as had Mr. Engle, that the project might impinge downstream users’ rights, referring to the opinions of other individuals. Although plaintiff failed to introduce these exhibits through Mr. Corke, they will be considered in that Mr. Schanck relied on the views of these officials.
C.R. Olberg, Mr. Schanck’s predecessor, wrote to the Commissioner of Indian Affairs on September 26, 1913, reporting the views of Mr. Truesdell, Special Assistant to the Attorney General. Mr. Truesdell had expressed concern that incurring the cost of a detailed survey for the project would be unwise when the availability of the waters is “so doubtful.” These gentlemen viewed the Government’s commitment to the Salt River Federal Reclamation Project as a prior, superseding obligation taking precedence over the tribe’s reserved rights to sufficient water for the purposes of the reservation. The dilemma was expressed thusly:
[T]he water rights of the Government, on behalf of the Fort Apache Indian Reservation, would consist of all waters that have been diverted and put to a beneficial use with priorities as of the dates of such appropriations. Such rights are undoubtedly valid, even under the state and territorial laws. Also, under the doctrine of reserve rights, the Government, by creating this reservation for the purpose of civilizing the Indians, reserved sufficient water for the purpose of the reservation. How much water is reserved in such cases is still a matter of doubt. The few cases on the subject do not fully clear up this point. The most that could be claimed would be sufficient water for irrigating all of the lands of the reservation that could be irrigated from the river flowing through it. Perhaps a more reasonable view would be that the Government is entitled only to enough water to irrigate sufficient land to give each Indian an irrigated tract such as the Government is accustomed to give when it makes allotments of land of that character.
In considering the water rights in connection with this reservation and those in connection with the Salt River Reclamation Project, it must be remembered that the Government is the proprietor of both and that its obligations, generally speaking, to the reservation Indians, are moral ones only, so that, if the Government in carrying out its Salt River Reclamation project obligated itself by contract or otherwise to so use the waters of the Salt River for that project as to prevent its using this water on the Indian reservation, it would be bound to fulfill its engagements in respect to the Reclamation project, even though by so doing it was hampered in the use of the water for the Indian Reservation. I do not know what the facts are, but I fear that, in the carrying out of the Reclamation project, the possible future irrigation for the Indian reservation was ignored, and that our only hope of getting water for that Indian reservation is in the event that there is now available for the Reclamation project more water than the Government is under any legal obligation to devote to the irrigation of lands under the Reclamation project, so that it could properly irrigate these Indian reservation lands, or some of them, rather than bring into cultivation new lands under the Reclamation project. As I see it, if there is any such surplus of water it is just a question of whether the Government will *634 use that surplus in one place or the other. On behalf of using it on the Indian reservation there is this to be said: that the Government is under a moral obligation to permit these Indians to remain and make their homes in the region that they have been accustomed to live in; that to do this in the best way under the policy of individual allotments, these lands will have to be irrigated; that irrigation so near the source of water supply would permit of the use of all of the return flow upon the lands of the Reclamation project below, and this return flow would of course be considerable; and also that, to use water so near the source of supply would be to make a saving on account of seepage and evaporation, that is to say, that the further up the stream you use your water the less these losses amount to. On the other hand, it will of course be argued, and properly, that lands under the Reclamation project are capable of a higher and more productive agricultural use than these reservation lands, which are at a much greater altitude and do not enjoy such favorable climatic conditions, transportation facilities, nearness to market, etc.
Acting Chief Engineer, Office of Indian Affairs, Schanck again advised the Commissioner of Indian Affairs on October 3, 1914, in retransmitting his March 31 report, that the area to be served was 3,000 acres, reiterating that the land is “the only tract of any magnitude on the whole reservation which may be irrigated.” He recommended that the power-irrigation project be approved and that Congress be asked to appropriate money for its initiation. The misgivings of Messrs. Engle, Schanck, and Olberg thus did not stop the Whiteriver Power and Irrigation Project; but fairly quickly funding became problematic, and the need for an updated and expanded power system emerged as the dominant priority. Chief Engineer Reed on May 31, 1915, wrote a memorandum bemoaning the “grave danger” of the agency’s being without light or water. Irrigation of 4,000 acres was being considered, but “this brings up a possible conflict with the water users of the Salt River Valley____”
Engineer Engle wrote on July 15, 1916, that the irrigation project was still under consideration, advising that “any definite plans for the execution of this work should be preceded by more refined and extensive surveys than we have yet made____” He again asserted that the project would be an invasion of the rights of downstream water users.
Ultimately, the irrigation component of the Whiteriver Power and Irrigation Project was not completed. “Concern over Salt River water rights” was one reason, according to Dr. Hamilton, but the impediments that were at least as responsible for its not being realized were cost, feasibility, and the priority of the power plant. For example, as of 1916, the plant was intended to irrigate 507 acres by power and pumping and 227 additional acres were to be irrigated by gravity. “It would be highly desirable to have this large area under irrigation [3,000-5,000 acres] but such a project will take a great deal of money and considerable time and the immediate need for the other [power] is very pressing ...,” wrote W.M. Peterson, Superintendent, United States Indian Service, Whiteriver, on June 12, 1916, to the Commissioner of Indian Affairs.
By the time construction began in 1919 after surveys had been made during 1913-1915, the acreage planned to be irrigated was located near the school and agency. In November 1920 the work was demolished by a flood on the White River. During 1920 federal funds were not available to complete the power and pumping plant. The 1921 Annual Report states that two congressional appropriations had been exhausted, yet the power and pumping plant was not complete. As of 1923 Superintendent Charles L. Davis, United States Indian Field Service, Whiteriver, reported that the scaled-down project had cost $75,000-$48,-000 from tribal monies and $28,650 from the gratuity appropriation. He noted his understanding that no additional federal funding would be made available that year. *635 Superintendent Davis stated that mechanical problems in connecting pipe had not been solved; that, “[a]s a matter of fact nothing of any worth has been done in the way of construction of this [one] canal____” near the school and agency; and that “a considerable sum of money” would be required to complete it.
Herbert L. Clotts, Supervising Engineer on the project, in his report of January 19, 1923, and letters of March 16 and June 13, 1923, decried Superintendent Davis’ report, pointing out that the tribe should benefit from irrigation facilities, not the school and agency. He said that the school and agency power enhancement should be paid from agency, not Indian, irrigation funds. Specifically, he charged that the School and Agency Light and Power Account was not being debited in proportion to the use for these purposes and that the irrigation was used on mostly school and agency land: 6
If the irrigation facilities are neglected and the plant used mostly for lighting and industrial power, the charge against the irrigation works would be most unfair. Also, if the irrigation system is used mostly to irrigate school and agency land to the practical exclusion of individual Indians, the irrigation charge reimbursable from tribal funds would be most unjust to the Indians.
Of the 500 irrigable acres on the mesa, 160 have heretofore been used by the School or Agency, and none by the individuals. Either the land should be used by the Indians or the reimbursable charge wiped out.
The high cost of the canal is due to the fact that much of it had to be patrolled, repaired and in some cases rebuilt and finally partly lined and flumed before the material could be controlled. Aside from this it is believed that the costs of the other features are reasonable considering location, labor and material prices.
The Annual Report for 1924 pessimistically reported that the irrigation system was inadequate for the needs of the boarding school. By 1928 Mr. Clotts and Superintendent Davis were in substantial agreement: Approximately 197 acres were then susceptible to irrigation, with a potential of 600 acres, according to Mr. Clotts’ January 10, 1928 report, and the Indians were making use of irrigated land. In his 1924 Annual Report, Superintendent Davis, reporting completion of the project, stated:
A power plant was recently built for the use of the Agency and boarding school and at great expense. This plant serves well for power purposes but the hopes and forecasts as to irrigation have not been realized. An appropriation was made by the last session of Congress in the amount of $2600 to extend this, but it is very doubtful if any great success can ever be achieved. It was expected that this system would irrigate 300 or 400 acres for distribution to the Indians, but so far it has been inadequate for the needs of the boarding school, and it is very doubtful if the Indians will ever get any benefit from it except through the boarding school.
The 1926 Annual Report by Superintendent Davis noted:
The irrigation system put in a few years ago, and which was intended to provide waters for irrigation for this farm, has proved almost a complete failure so far as irrigation is concerned. The single-unit system will not stand up under any continuous pumping, and in fact the plant will not operate two turbines, one for light and power purposes and one for irrigation, at the same time. Then the land formerly intended to be served cannot be successfully irrigated without de *636 straying the soil through erosion. As it all lies on a rocky bench with no sub-soil, the water put on for irrigation purposes keeps going down, so that it would require almost continuous irrigation to grow crops successfully.
The documents available from the 1930’s show that both federal and appropriated Indian funds were used to add to the irrigation structures. The principal projects were to rehabilitate the small irrigation systems installed by Army engineers years before along the bottom of the canyons. By the 1940’s the Whiteriver Power and Irrigation Project still had failed to realize its goal of both providing a power source for the school and agency and irrigating Indian farmland. In 1939 the tribe had requested approval of an appropriation of $25,000 of its funds, along with a $50,000 congressional appropriation and $25,000 in Civilian Conservation Corps funds, to construct a pipeline for Diamond Creek to augment the power of the Whiteriver Power and Irrigation Project. In 1941 the tribe resolved to contribute $35,000 of its funds. Superintendent William Donner asked for the requisite approval. (The project was not pursued because another water source was tapped by 1943.) By 1942 Superintendent Donner took the position that the canal was not large enough to supply power for both purposes, given that the power requirements of the school and agency, and now a hospital, had expanded. He acknowledged that agency employees demanded and were granted “increased electrical conveniences” by the Indian Affairs Office. The consequence was deferring the irrigation of Indian lands and irrigation was “given a second consideration” as he wrote the Commissioner of Indian Affairs on November 28, 1942:
In accordance with our records we have spent to date $134,114.88, excluding funds expended from CCC and our local Agency IMPL Support. The question of an annual construction charge brings up various complications which is rather hard to explain to those not thoroughly familiar with local conditions. In the first place it must be remembered that the above amount expended included the construction and equipping of a power plant hydro-electric system for the schools and Agency. In fact, the bulk of the money above referred to was spent for this purpose. When this plant was constructed in about 1921 and 1922, it was to serve a dual purpose, namely, to provide hydro-electric power for the school and agency through one unit, and power for irrigating the school and agency campus, school and agency farms and land which was to be irrigated and allotted to various Indians below the school and agency campus and farms between Whiteriver and Fort Apache with a second unit.
This irrigation scheme was never carried out simply because it proved to be impractical and of inadequate capacity to furnish power for the schools and agency and irrigation purposes. The canal was inadequate to supply water power to both activities and even if it had been adequate, the pumping system would have been inadequate to supply irrigation for the school and agency campus, keep up the school and agency water supply, irrigate school and agency farm land and irrigate Indian land beyond. The canal was gradually improved and enlarged but during that time the demand for power and light increased so rapidly that the capacity of the plant was insufficient to provide water for irrigation and soon became inadequate to provide domestic water supply and light and power for the increased consumption by reason of increased personnel, increased school capacity, addition of a sixty-bed hospital, with all electrical conveniences demanding twenty-four hour service and increased electrical conveniences demanded and granted to employees through direction by the Indian Office. This demand necessitated irrigation of Indian lands being deferred and given second consideration. The request for an adequate hydro-electric power station to divorce the utility load from the irrigation load was never accomplished because it *637 has been impossible to convince the Office to approve and foster a larger hydroelectric power system. With [sic] the consolidation of Whiteriver and Fort Apache taking over the Fort Apache power plant and connecting the two schools with a power line did not solve thepower problem but merely added to the complications.
These facts are mentioned in connection with irrigation because it is assumed that the above expenditures were primarily for irrigation purposes, whereas, the bulk of the expenditures thus far made were primarily for the improvement of utility service for the two schools, agency and hospital.
As of August 25, 1943, Superintendent Donner described the reconstruction of irrigation facilities:
Owing to the extreme floods some of the diversion dams were completely washed out and others need to be reconstructed and many lateral irrigation gates still need to be installed. This is based principally on the postwar project 1945 to 1950 as it is not anticipated that any funds will be available for new construction or reconstruction during the war.
Between 1933-1946 the Government constructed 213 stock water dams on the reservation under the auspices of federal programs; 6 such dams were constructed by the Indians; 134 additional dams were constructed, but it is not clear by whom. Of the total monies expended during this period for these dams, government programs contributed $222,000 and the agency/tribe, $16,000. The “Post-War Program” of July 1, 1944, reported:
Irrigation appropriations of $10,000 per year were made in 1938 and 1939, under which improvements were made to 20 of the irrigation systems between July, 1939 and February 1940, to the extent of $19,989.80. A large amount of CCC-ID work was done cooperatively on 18 of these and on 14 other projects from April 1, 1937 to June 30, 1942, to the extent of $95,705.01.
The foregoing summarizes the construction of irrigation facilities on the reservation up to August 13, 1946.
4. The Government was under no obligation to fund construction of any irrigation projects, and the evidence is overwhelming that without congressional appropriations the funds allocated by the tribe were insufficient to finance projects like the Whiteriver Power and Irrigation Project. For example, the 1920 Annual Report reported that lack of funds stopped this project in mid-construction:
The only irrigation on the Reservation is such as has been mentioned above but there is now under construction a power and pumping plant at the Agency and School designed to put water on some 200 to 300 acres of land now idle or utilized under the dry farming system. By reason of inadequate funds this plant cannot be completed this year and will have to remain in an incomplete state until further funds are provided.
Requests that the Secretary of Interior approve appropriations from tribal funds always were accompanied by requests for congressional appropriations or government funding from other sources, such as Depression-era programs.
Troubling to the court are two matters regarding the Whiteriver Power and Irrigation Project: (1) the precedence of agency, school, and hospital needs for power over irrigation of Indian lands and (2) the statements of BIA officials that misconstrue the tribe’s rights to appropriate water for beneficial use.
a. The failure to implement fully the Whiteriver Power and Irrigation Project so that the Indian lands could be irrigated—coupled with Superintendent Donner’s acknowledgment that funds had been spent primarily for the power needs of the agency, two schools (as of 1942), and hospital—suggest that the project was mismanaged to the tribe’s detriment. The agency facilities included an Indian boarding school and hospital to serve the Indians. One set of interests benefiting the tribe was enhanced at the expense of an *638 other. That the interests competed for funds may amount to a breach of duty to account for application of Indian monies. See supra note 6. Certainly, the Government did not suppress the development of irrigation facilities on the project to benefit downstream users merely by choosing to commit available resources to other projects for the Indians’ benefit. Development of the Whiteriver Power and Irrigation Project for even 200-500 acres was not not achieved because of two overriding factors. Primarily, the project was ill-conceived. The projections for power did not reflect adequately the power requirements. The irrigation structures were inadequate to generate the power required even before the agency, school, and hospital requirements increased. The other reason was limited funding. Given that the technological feasibility of the irrigation project never was more than speculative, as confirmed by the Annual Reports, it is found that the Government did not suppress the development of the irrigation phase of the project.
b. The SRVWUA’s rights would not have been invaded by development of the Whiteriver Power and Irrigation Project for 5,000 acres, as then-Assistant Engineer Engle erroneously stated in 1914. Although the other officials sharing the same erroneous understanding voiced their opinions more tentatively, it can be found that the Government officials with responsibility for irrigation projects on the reservation periodically took the position that the SRVWUA’s rights to the flow of the Salt River were prior to and superior to the tribe’s. This viewpoint was incorrect. Plaintiff’s Winters Doctrine rights have not been adjudicated, but, whatever their measure, they take their life from the date, at the latest, when the reservation was created in 1897 or as early as 1892 when the tribe was put on the White Mountain Apache Reservation and have priority over the rights asserted by the later-created SRVWUA.
Even if the trustee, as represented by certain BIA officials, failed to understand the law, a breach of duty is not proved unless this incorrect understanding caused any irrigation project not to be realized, putting aside the fact that the Government was not required to supply federal funds directly or to ask Congress for funding. The evidence is unequivocal that the officials on the reservation and in Washington, D.C., requested approval for appropriations from Indian funds for irrigation projects and also sought agency or other federal funds and congressional appropriations. It should also be emphasized that not all government officials had an erroneous understanding of plaintiff’s water rights. For example, Mr. Engle later manifested a correct perception, as will be discussed.
The 1913 Annual Report said:
The water used on the reservation is secured from White River and its tributaries, and is secured simply by appropriation and use. The stream has it source on the reservation and no filing appears to be necessary. There are a large number of small ditches, but no large ones.
Superintendent Davis in his 1918 Annual Report stated:
No water rights have ever been filed. No adverse rights are being instituted by private parties, nor could such be done, as the local streams originate within the reservation and no other population resides on the reservation. As these waters are all within the watershed of the Roosevelt Reservoir they are subject to such rights.
The Commissioner of Indian Affairs understood the Winters Doctrine. Superintendent Donner had written the Commissioner of Indian Affairs on May 5, 1928:
The big thing on the Fort Apache Indian Reservation during the next few years will be the development of farms and homes through irrigation. The White Mountain Reservation is the leading storage reservoir for the Roosevelt Dam and I have been unofficially advised at various times that the diversion of water from the reservation streams on the reservation for the benefit of the Indians would be protested by the Salt *639 River Valley Water User's Association. If this association or any other Company below us has been allowed to appropriate all our waters on the reservation to land in the lower country at the expense of the Indians, surely there has been negligence somewhere. All of these streams from which we will draw rise within the reservation and water will be used on the land within the reservation.
I would like to have any information from you as to just what extent we could be restrained from using these waters on our own lands.
The possibilities of developing small farms for truck gardening, fruit raising, etc., are very extensive and I am making plans for such development in order that the Apaches might be more self-supporting. If we are now to be restrained from the use of our own water on our own land it is a serious situation and will place this reservation in a very critical condition as to future development.
By return letter on May 14, 1928, Commissioner Charles H. Burke instructed Superintendent Donner that plaintiff’s rights to water for irrigation were preserved by the Winters Doctrine and requested that Donner report any instances of the tribe’s being deprived of water:
Under the principle laid down in the so called Winters case reported in 207 U.S. 564 [ 28 S.Ct. 207 , 52 L.Ed. 340 ] sufficient water for irrigation and other needs of the Indians was impliedly reserved for their use at the time of the setting aside of the reservation. The streams to which you refer rise within the reservation, and an opportunity for the utilization of water required by the Indians is afforded before it passes off the reservation.
Appropriation of waters for irrigation purposes on lands outside the reservation made in pursuance to and in compliance with State statutes should not affect the rights of the Indians. If the theory of law above expounded be correct such appropriations made in pursuance to the State law would be subservient to the rights of the Indians, providing the appropriations pursuant to State law were made subsequent to the setting aside of the reservation they would be subservient to the extent that the Indians had occupied the land and used the water on such land.
Your letter does not state that any action has been taken by the Salt River Valley Water Users’ Association or others that in any way interferes with the use of water by the Indians on the reservation. It appears that you may have some basis upon which your statements are made that is not set forth in your letter. It is requested that you advise the Office as to whether or not the Indians have been deprived of any water to which they would be entitled under the foregoing principles of law.
Superintendent Donner responded on October 31, 1928, that although the amount of irrigable acreage seemed to be limited, the cost of irrigating it appeared to be high, and the effort would be advised except for the expected protest from the SRVWUA. He opined that the SRVWUA would win any case if such an irrigation project were undertaken, but did not indicate any instances where any Indians or the tribe itself had been prevented from using the water for irrigation by the downstream users.
Superintendent Donner testified before Congress in 1931. Hearings Before Sub-comm. of the Committee on Indian Affairs on S.Res. 79,308 and S.Res. 263, 71st Cong., 3d Sess. 8647-48 (1931):
Senator THOMAS. Any complaint from any source against your using the water for irrigation purposes here?
Mr. DONNER. There has been some. I have proposed more extensive irrigation, and I have heard, not directly, but indirectly, through the Water Users’ Association they have had filed on all of this water and that it belonged to them.
Senator WHEELER. They could not legally appropriate water on an Indian reservation.
*640 Mr. DONNER. We did not think so either.
Senator WHEELER. They can not legally file on and appropriate any water on an Indian reservation.
Mr. DONNER. They can not file but they are politically strong enough to make an awful kick.
Senator THOMAS. We have a lot of people in the Indian Service to protect the Indians in their rights and to see that the Indians get a fair share of the natural resources of this State and community where they reside.
Mr. DONNER. We tried to do that. Senator, but we are not always supported.
On April 6, 1935, Superintendent Donner wrote Mr. Engle, now Supervising Engineer of the cognizant Department of Interi- or Irrigation District:
The Salt River Valley is watching every move we make on irrigation for the Indians, and if they found that we were trying to irrigate one additional acre they would protest and perhaps be able to overthrow the necessary improvements that we are trying to carry out.
Mr. Engle replied on April 13, 1935, showing that his erroneous view in 1914 had been enlightened. He stated that the Winters decision would be applicable to secure a priority to water as of the date the reservation was established. On July 10, 1936, Superintendent Donner reiterated his same concerns, pointing out that the difficulties in securing funds:
Two years ago there was submitted through the district irrigation engineer an estimate totaling $125,000 for the rehabilitation and improvement of the many small irrigation projects within this reservation. The district irrigation engineer submitted my recommendations to your Office with the suggestion that the work be carried over a period of two years. It seemed that our recommendations failed to receive action, and there was later an item put in the bill fostered by Senator Hayden of $10,000 as an initial amount to repair these projects. It seems that this amount also failed to pass, thus leaving the reservation high and dry for these important improvements.
There is not another improvement on this reservation so important and so beneficial to the Indians of this reservation as improved irrigation facilities. We are not really in need of expert irrigation assistants, though irrigation engineers are more than welcome, but we do need funds with which to carry on these important repairs. -
I also wish to call your attention to the fact that the Fort Apache Reservation is a water shed for the Salt River Irrigation Project, and the Salt River water users are very jealous of any water used within this reservation, even though the Indians living within the reservation have a prior right through usage and occupation of this territory.
The historical evidence identifies the political power wielded by the SRVWUA. The documents do not indicate, however, that the Department of Interior suppressed irrigation projects on the reservation or prevented the use of Indian funds for projects that were deemed technologically and economically feasible. Plaintiff would argue that without Government funding plaintiff’s exercise of its reserved water rights was illusory. However, the 1982 Court of Claims decision in Gila River Pima-Maricopa Indian Community, 231 Ct.Cl. at 209, 213-14 , 684 F.2d at 852, 865 , held that the Government need not maximize theoretical rights by funding projects that Indian tribes do not have the financial resources to undertake, even if the Government wrongfully allowed other water users to divert an Indian tribe’s water, which is not the case at bar.
5. According to an analysis by defense witness Dr. Hamilton, at no time between 1902 and 1946 did the amount of cultivated and irrigated acreage exceed the amount of acreage that was reported as tillable. The Annual Reports prepared by the successive Indian Agency Agents and Superintendents *641 corroborate this analysis. Although some of the estimates of tillable acreage are not reliable, the evidence supports a finding that the Indians could have farmed more acreage during this period had additional irrigation facilities been constructed.
Plaintiff argues the “Post-War Program” developed by officials on the reservation and forwarded to Washington, D.C., shows that the Government suppressed development of irrigation facilities in order to benefit downstream non-Indian users. The report states:
All of the reservation from its highest elevation to its lowest has been filed on by the Salt River Water Users Association and the consumption of every drop of water on this reservation is watched by this association because of the need for the same in the Salt River Valley. The entire reservation is the watershed for the Roosevelt Dam and the Water Users Association. Much of the eastern and the entire northern boundary follows the crest of the White Mountains and the Mongollon Rim and all drainage within boundaries leads to the Roosevelt Dam, while those on the northeast and north boundary lead to the Little Colorado and into the Colorado River Basin proper. Any large expansion of the irrigation within the reservation, except the improvement of those many small projects established by the military long before the construction of Roosevelt Dam and its subsidiary dams, is blocked by the Salt River Water Users Association. Therefore, irrigation within the reservation constitutes merely the improved irrigation facilities for the better utilization of the unquestioned water rights.
The Fort Apache Reservation lies almost wholly within the watershed of Salt River, and is one of the major water sources for the Roosevelt Storage Dam. The proposed soil and Moisture Conservation projects are therefore important not only for the purpose of protecting and healing grazing and agricultural lands on the Reservation but also to assist in assuring a constant water supply for the Roosevelt Reservoir.
(Emphasis added.) Defendant rejoins that this document bears no indication that it was approved or accepted by officials in Washington, D.C. Examination of the exhibit in its entirety shows that it represents extensive knowledge of the reservation, consistent with other exhibits. Mr. Corke also testified that the Program was followed. It is therefore deemed reliable evidence of the Government’s plan for development of irrigation facilities on the reservation between 1944-1946. However, the court notes that the quoted language is in error insofar as it states that the SRVWUA filed on the natural flow, as opposed to the surplus or flood waters.
The Program reports that as of 1944 the irrigated acreage on the reservation was 1,971 acres. That precise figure was reported in 1955 by a BIA Soil and Water Conservation Narrative Report as the amount of irrigated acreage, indicating that irrigation facilities were not developed for at least 11 years. A finding that the Program restricted development of irrigation facilities on the reservation is undercut by the Post-War Program itself, which allowed for expansion beyond the 1,971 acres, provided that “large appropriations” were received:
It is important that we should determine which practices can be successfully applied on this reservation because we have a potential dry farming area of 20,000 acres—only 3,000 of which is being farmed at present, whereas our total irrigable acreage area is not over 6,000 acres and large appropriations to defray the cost of irrigation structures and subjugation would have to be received before any considerable increase from our present 1971 acres now under ditch could be used. The expansion of our dry farming, on the other hand, could be effected with a comparatively small cash outlay.
However, the Program also stated that funding was sought primarily for improvement of existing irrigation structures:
*642 In our future planning along agricultural lines we feel that only about 6,000 acres can be profitably irrigated. 4,000[ 7 ] of this amount is under irrigation but some improvements in the form of diversion dams, headgates and lateral outlets are necessary. During the past six or eight years we have spent nearly $100,000 in various irrigation improvements. Some of these improvements have been rather expensive because of unusual floods which destroyed some of the irrigation works installed. Our estimate for the next ten years, including maintenance, amounts to only $71,650 and consists of additional improvements to the old small irrigation projects along the various streams which were to an extent developed and in use before the question of water rights became pressing. Such development as we have planned with the $71,650 above mentioned, does not constitute the development of a lot of new land and the diversion of additional water from the various tributaries of the Salt River but rather improvements to develop these additional lands and conserve the irrigation water over the present wasteful method with the early type of temporary structures that we have been getting along with.
(Emphasis added.)
The “Post-War Program,” in sum, evidences that BIA officials on the reservation once again misperceived the nature of plaintiff’s reserved water rights and their priority over rights of the SRVWUA in respect of any “large expansion of the irrigating system.” It shows that funding was not sought to expand the irrigation systems beyond repairing and improving the present irrigation structures. To find that the Government’s conduct amounted to suppression would be unwarranted, however, on the basis of the following analysis.
6. The only irrigation surveys undertaken by the BIA were in 1900-1901 and 1913-1915. The technical feasibility of the projects investigated was far overestimated and the economic feasibility was contingent on federal funding. Since the Government had no obligation to develop the facilities, the notion that the facilities would have been expanded with federal funds had BIA officials not misperceived plaintiff’s reserved water rights is speculative. In Gila River Pima-Maricopa Indian Community, the injury was not conjectural. The several tribes’ water had been diverted upstream of the reservation. The Government was held liable for failing to provide an alternative source of water or going to court to establish the tribes’ entitlement. Here, no one prevented plaintiff from diverting the flow of the Salt River for the beneficial use of the reservation.
The Government did not promote expansion of irrigation facilities beyond present structures between the mid-1920’s and August 13, 1946, save for stock water dams. The documents depict the dependence of the tribe on the expertise and resources of the personnel who represented the Government on the reservation. Projects to expand and improve existing irrigation facilities were stimulated by the Government. Even though the BIA may have been more successful in expanding irrigation on the reservation had all its officials pursued their efforts undaunted by an erroneous view of the tribe’s water rights, the evidence does not show that irrigation projects were disapproved, or halted, or abandoned because government officials misunderstood the nature of plaintiff’s water rights. Moreover, the multiplicity of factors that affected development of irrigation facilities on the reservation must be underscored. Numerous documents depict destruction of irrigation structures due to heavy rains and storms before causes other than climate contributed to erosion; the limited feasibility of expanding irrigation with existing technology militated against incurring the costs of expansion; the shortage of Indian funds to *643 support these projects is documented fully; and the available funds, in the main, were applied to maintaining the old structures.
Mr. Corke was the BIA official who investigated during 1956 all irrigation systems and areas served by those systems on the reservation to develop evidence for the litigation that led to the 1963 Supreme Court decision in Arizona v. California. Plaintiff’s Winters Doctrine rights were not determined by the special master in that litigation, but Mr. Corke concluded that 7,197 acres were practicably irrigable. He testified in this case that he had been instructed to base irrigable acreage on the acres historically irrigated, but it is unclear how many acres actually were irrigated at the time of his survey. Another BIA investigation in 1974 reported that 2,885 acres had irrigation supply systems. Therefore, the amount of acreage irrigated increased between the 1944 “Post War Program” and 1974 from 1,971 to 2,885 acres, 8 although who paid for the expansion and precisely when it occurred were not brought out at trial. The record permits the inference that the expansion occurred between 1955-1974, because the 1955 BIA Soil and Water Conservation Narrative Report shows that the amount of irrigated acreage remained consistent from 1944-1955.
The old documents paint an unvarying picture that the Government was viewed as a source of funding because of a lack of tribal revenues for irrigation development. Plaintiff could not show that it had the financial ability to develop the 13,800-acre project, or the 5,000-acre Bear Flat project, or the irrigation phase (500-5,000) acres of the Whiteriver Power and Irrigation Project absent federal funding. This point will be treated further in the discussion of damages.
B. Claims for continuing wrong
Caution should be exercised in detecting the existence of a continuing wrong because that concept is judge-made and not statutory. See generally Navajo Tribe of Indians v. United States, 9 Cl.Ct. 227 , 257-58 & n. 27 (1985) (uranium and other claims). Ours is a system of common law, and judges are not restricted to codes. Nonetheless, the Indian Claims Commission Act waives the sovereign’s immunity for a claim based on acts occurring before August 13, 1946: “No claim accruing after August 13, 1946, shall be considered----” 25 U.S.C. § 70a. Such a waiver must be construed narrowly. See, e.g., United States Construction Co. v. United States, 7 Cl.Ct. 47, 50 (1984) (citing cases) (order denying summary judgment). Moreover, a court must give meaning to every word of a statute. 2A Sutherland, Statutory Construction 63 (C. Sands 4th ed. 1972).
In his opinion in Navajo Tribe of Indians , reported at 9 Cl.Ct. 227 , Judge Lydon discussed how the doctrine of continuing wrong was recognized in 1978 and developed thereafter. The decision in Navajo Tribe v. United States, 218 Ct.Cl. 11, 20 , 586 F.2d 192, 198 (1978), cert. denied, 441 U.S. 944 , 99 S.Ct. 2163 , 60 L.Ed.2d 1046 (1979), recognized that
if a wrongful course of governmental conduct began before August 13, 1946 and continued thereafter, the Commission could properly take account of and award relief for the damages or injuries suffered after that date from the continuing course of conduct which began prior to that time.
The requirements invoking the doctrine of continuing wrong are three: (1) There must be wrongful conduct; (2) it be continuous; and (3) it must have begun before August 13, 1946. For example, in the 1985 Navajo Tribe of Indians case, the court rejected liability for failure to close up mines that had been abandoned before August 13, 1946. An alleged wrong, Judge Lydon ruled, would not have been committed until a mine was abandoned and defendant’s fail *644 ure to close it up occurred before August 13, 1946.
The difficulty, if not the mischief, posed by the doctrine of continuing wrong, as expressed by Judge Nichols in his concurring and dissenting opinion in the Court of Claims 1978 Navajo Tribe of Indians case, 218 Ct.Cl. at 33-34 , 586 F.2d at 206 , is the invitation to link similar conduct occurring after 1946 to an act occurring before that date that has been adjudicated wrongful. When Congress enacted the Indian Claims Commission Act for purposes of redressing past acts of government misconduct, of necessity two key dates were chosen—one as a limitations bar on claims and the other as a limitations bar on filing suit. The date of enactment, August 13,1946, represented a legislative judgment that actions occurring after that date must be filed timely within the applicable statute of limitations and cannot be coalesced with pre-1946 wrongs.
It has been concluded in this case that before August 13, 1946, the Government did not commit any wrongful conduct regarding plaintiffs water resources that is cognizable under the Indians Claims Commission Act. Specifically, plaintiff claims that defendant was obligated to develop irrigation facilities on the reservation for all practicably irrigable acreage. This claim was dismissed from the litigation before trial. White Mountain Apache Tribe, 8 Cl.Ct. at 684 ; see also White Mountain Apache Tribe, 9 Cl.Ct. 32 . Since plaintiff pursued this theory through its expert reports and defendant submitted opposing reports, trial only confirmed that plaintiff could not sustain its burden by a preponderance of evidence, even though the claim had no legal basis in the first place. Nor did plaintiff sustain its burden to show that prior to August 13, 1946, defendant either diverted plaintiffs water to benefit downstream users or otherwise suppressed plaintiffs exercise of its Winters Doctrine rights, whatever the quantification of those rights ultimately may be.
Even if the record could have supported a finding that the Government diverted plaintiffs water for the benefit of downstream users or otherwise suppressed exercise of plaintiffs Winters Doctrine rights, plaintiff has failed to show any basis for a finding of continuing wrong. Fundamentally, plaintiffs case supporting a continuing wrong concerning water resources is exactly what Judge Nichols warned against in 1978. Plaintiff surveyed the history of water on the reservation from August 13, 1946, to 1986 by stringing together a series of incidents that are similar in that they involve proposed projects or projects undertaken on the reservation which, in theory, if not in practice, would have the effect of maximizing the flow of water off the reservation to benefit downstream users.
For example, as discussed in part III of this opinion dealing with claims for forest mismanagement, in 1968 the BIA adopted a Forest Management Plan that significantly increased the timber harvest. In the southwest in a mountainous area that is the watershed to an arid downstream area, a decision to increase timber harvest obviously would release water for movement downstream. Indeed, by regulation, the BIA’s forest management plans are required to state their impact on runoff. The evidence showed that there was no correlation between the amount that the harvest was increased and the amount that the SRVWUA and its advisors had suggested would be necessary to effect any significant increase in water release. The evidence did show that this particular management plan was undertaken consistent with recognized silvicultural principles for achieving a regulated forest. In a similar vein, plaintiff argued that the programs on the reservation both before and after August 13,1946, to remove infestation of juniper and pinyon pine trees were designed to increase water yield. Eradication programs began in the 1930’s under Depression-era federal and tribal funding to provide employment on the reservation and to control the infestations. One of the stated purposes of experiments with juniper-pinyon eradication in the 1950’s and 1960’s was to increase water yield, but the results *645 were inconclusive and the experiments were abandoned. Even if this stated purpose were improper, it does not change the motivation behind the work done in the 1930’s.
Plaintiff also points to efforts of the SRVWUA in 1965 to convince the BIA and plaintiff to restrict plaintiff's development of water resources on the reservation to water recoverable through salvage alone. An agreement was drafted—it is unclear by whom—but the BIA did not approve it. Mr. Corke, who testified as a lay witness, was the proponent of this evidence. The forcefulness of his testimony overall was diminished because he disagreed with some BIA decisions that could be viewed as disfavoring the tribe (for example, in restricting his study of practicably irrigable acreage to historically irrigated acreage), while failing to credit decisions that were favorable (for example, in disapproving the draft agreement among the BIA, the tribe, and the SRVWUA that would have restricted plaintiff to developing irrigation or other water projects through salvage water). That the BIA considered such an agreement does not equate to suppression of plaintiff’s water rights. If Mr. Corke was the BIA official responsible for derailing the draft agreement, the credit belongs not only to him, but also to the BIA. Moreover, Mr. Corke credibly cannot impugn the motives of the 1968 Forest Management Plan for the reservation, when he was the approving official and also approved an award for the forester who prepared it without making a contemporaneous record of his objections to the increased cut implemented under the plan.
Although the Government did not develop or encourage development of significant irrigation facilities on the reservation from at least the 1930’s through the late 1970’s, the Government was under no obligation to do so. However, the BIA did support—and in so doing publicly opposed the interests of the SRVWUA—the construction of Hawley Lake, a major recreational project on the reservation, in the mid-1960's. Moreover, plaintiff cannot attribute the cupidity of the SRVWUA to the Department of the Interior. The fact is that the SRVWUA may have found more favor in the Congress than has the tribe. The fact is that the SRVWUA lawfully can make any outrageous proposal it wishes other than in a judicial proceeding. The important fact is that the Government has not adopted any proposal before or after 1946 that would have prevented the tribe from exercising its reserved water rights. These various themes that plaintiff attempted to develop do not constitute individually or together wrongful conduct, nor do they constitute the same type of conduct that occurred before August 13, 1946, because they are too disparate in type of activity and in time.
C. Damages
Even though forewarned in advance of filing its expert reports, see White Mountain Apache Tribe v. United States, 10 Cl.Ct. at 120 , plaintiff came to trial with two untenable measures of damages: (1) the cost of constructing irrigation facilities for 49,808 allegedly practicably irrigable acres determined as of 1986 and (2) damages for the value to the downstream users of the water taken from the Salt River. The limit of liability, and the number of acres upon which damages must be calculated, is the value of irrigated acreage that had been cultivated and would have been irrigated, as of August 13, 1946, had the Government not diverted water from the reservation, which it did. not, or suppress the development of irrigation facilities, which it did not. See Gila River Pima-Maricopa Indian Community, 231 Ct.Cl. at 213 , 684 F.2d at 865 .
1. The wisdom of requiring that all experts prepare and exchange expert written reports before trial was borne out by the evidentiary morass that ensued when the court during trial requested that Mr. Watson prepare a new damage calculation under a theory that plaintiff had not addressed. The court undertook this effort in the interest of justice because of the shortcomings of plaintiff’s case in failing to present evidence of damages for alleged mismanagement of water under any com *646 petent legal standard. 9 After noting its objection, defendant cooperated in this effort by attempting to refute the new approach to damages without the benefit of discovery, since the underlying documentation for plaintiff’s revised damages was provided only at trial.
Specifically, Mr. Watson was tasked to develop a revised damage report based on the 13,800-acre project that had been recommended in 1900-1901. The three individual irrigation projects involved represented the only evidence of irrigation facilities that were considered, but not undertaken, during the claim period. Mr. Watson did a yeoman’s job of modeling a proposal for financing, irrigating, and manning the irrigation facilities for 13,800 acres. Defendant’s witnesses, primarily Dr. Brockway, mounted a spirited rebuttal, which missed the mark on some points because the defense did not understand Mr. Watson’s underlying assumptions, as he demonstrated during his rebuttal testimony. Cross-examination does not substitute for a discovery deposition.
Although the court suggested that Mr. Watson proceed to develop financing for the three irrigation projects based on evidence of tribal income, such as hay and grazing revenues, Mr. Watson posited his damages on the assumption that plaintiff could have constructed the facility by obtaining a loan. In retrospect his approach makes eminent sense, because the documents concerning farming and irrigation on the reservation show that no irrigation projects would have been undertaken without federal funds. The tribe did not have available resources to initiate or complete these projects. Under Gila River Pima-Maricopa Indian Community, the lack of financial ability is fatal to this analysis. Whether plaintiff could qualify for a loan in the 1900-1920 period or even federal funding as a reclamation project is speculative. The Court of Claims in Gila River Pima-Maricopa Indian Community looked solely at the tribe’s finances, not hypothetical financing. This court follows suit.
After reviewing all the evidence on damages, the court concludes that even had liability been established, plaintiff should not be allowed to cure its proof by having its expert witnesses at trial offer new evidence utilizing a new theory. 10 Defendant was prejudiced at trial. Since November 7, 1983, the parties have understood that all expert testimony would proceed by the pretrial exchange of written reports, followed by the oral examination of these witnesses at trial. Even if defendant had not been prejudiced, the Watson recast is irrelevant because each of the three components of the 13,800-acre project was unfeasible as of 1900-1924, the years when they were under consideration and during which only the modest Whiteriver Power and Irrigation Project was attempted. 11 It is there *647 fore found and concluded that plaintiff proved no damages.
2. The claim for damages based on the cost of constructing irrigation facilities to irrigate what plaintiff views as practicably irrigable acreage based on present-day technology has been rejected. Evidence was lacking that plaintiff was prevented from irrigating any acreage or that plaintiff had financial resources to irrigate any additional acreage. Even if plaintiff had proved a continuing wrong, no legal basis for the type of damages sought by plaintiff exists. This is because the measure of damages is the diminished value of the acreage that plaintiff could have irrigated but for the Government’s wrongful acts. No court has recognized damages in an action filed under the Indian Claims Commission Act premised on the cost of constructing irrigation facilities (absent a treaty, statute, or agreement obligating their construction) or on the value of water to a user who benefited by its diversion. 12
II. Claims for mismanagement of plaintiffs rangeland
The Fort Apache Indian Reservation contains 1,664,289 acres of land potentially suitable for the grazing of livestock—virtually the entire reservation. This acreage spans a variety of terrains and altitudes, from the Sonoran desert zone, below 4,000 feet elevation, to the Spruce-Alpine fir zone, above 8,500 feet. Early correspondence and reports described the abundance of grass and other forage found on the reservation and compared the range resources quite favorably with grazing land in surrounding areas. For example, the BIA Indian Agent’s 1881 Annual Report described the northwestern portion of the reservation as valleys with “excellent grass for grazing purposes____” Similarly, a 1901 agricultural lecturer recalled the original condition of the Salt and Verde watersheds: “In the swales and valleys of this country, and wherever water was more abundant, the great bunch grasses grew luxuriantly ..., affording an abundance of native hay in the dry season and quickly freshening up into green forage after a rain____” Indian harvests and sales of as much as 1,500,000 pounds of native hay (in 1900) to the military post confirm the early productivity of plaintiff’s rangeland.
Well before any substantial livestock grazing began on the reservation, the American Southwest, and Arizona in particular, became the locus of a rapidly developing range livestock industry. Overstocked herds in western Texas swelled into the Arizona territory beginning in 1876. By 1885 Governor F.A. Tritle likened Arizona to “one vast grazing field” and a “stock-raisers’ paradise.” Livestock numbers increased rapidly until by 1889 the governor’s annual report noted that “the entire grazing area is nearly if not fully occupied where water can be obtained.” Over the next few years, the combination of drought and overstocking took its toll on the condition of the ranges:
[T]he grass supply soon diminished throughout the territory to such an extent that it was impossible to mature prime beef any longer on the open ranges, and the cattle owners were forced ... to sell their steers as feeders at greatly reduced prices to buyers from California, Montana, and Kansas.
Report of Governor of Arizona, 1893. Selling part of their herds at great financial loss was one option for stockmen to reduce grazing pressure on the land. Another option was to try to use the relatively ungrazed lands of the White Mountain Apache Indian Reservation, which in 1892 included the present-day Fort Apache Indian Reservation.
The history of non-Indian grazing on reservation rangeland began with individual incidents of trespass and ended with a *648 government-sponsored system of grazing permits under which the bulk of the reservation was leased to non-Indian stockmen. It is unclear when illegal trespass to graze sheep and cattle on the reservation began; however, the first incident appearing in the records occurred in 1891. To avert its cattle’s removal from the San Carlos reservation by BIA agents, the Chiracahua Cattle Company requested that their trespassing cattle be allowed to remain through the winter of 1891-1892 and then later offered to pay a nominal amount for that privilege. Despite being informed by an Assistant Attorney General that no statutory authority existed for the lease of reservation lands under grazing permits, the Commissioner of Indian Affairs directed Acting Agent Captain Louis Johnson to allow the cattle company to leave its stock on the reservation through the winter and to collect a grazing tax from the owners. The record reflects an almost continuous presence thereafter on the reservation of non-Indian cattle. This was due primarily to the inability of the Army troops to patrol adequately the entire reservation and their failure to remove permanently livestock discovered there. Difficulties in collecting the grazing taxes were also noted.
As recounted earlier in this opinion, the White Mountain Indian Reservation was split in 1897 into the San Carlos and Fort Apache Indian Reservations. Although the vast majority of the trespassing cattle had been on the San Carlos portion prior to the separation, by 1898-1899 the number of reported non-Indian cattle on the Fort Apache Indian Reservation exceeded 1,000. The actual number of trespassing livestock is unknown, as their owners were not inclined to acknowledge their trespassing, whether accidental or intentional, and even less inclined to pay a grazing tax. On December 9,1901, Secretary of the Interior E.A. Hitchcock approved the start of a livestock permit system on the Fort Apache Indian Reservation. No indications appear in the record that, as of that date, any observable overgrazing or erosion had been caused by livestock-raising activities on the reservation.
The establishment of a grazing permit system was a response to trespassing cattle. Central to its establishment, however, was the desire of the Indian Agents to develop income for plaintiff. The early Annual Reports are replete with comments concerning the need and prospects for achieving productivity from the reservation and for devising plans for enhancing the Indians’ and tribe’s income.
Plaintiff makes several claims regarding the Government’s management of the rangeland on the reservation. Plaintiff’s primary claim is that the Government allowed non-Indian permittee stockmen to overgraze their livestock on the reservation, thereby causing widespread erosion and deterioration of the land and encroachment of juniper and pinyon pine trees on the ranges. Plaintiff also contends that the Government carried out its grazing policy for the purpose of increasing the flow of water from the reservation for the benefit of downstream users. Finally, plaintiff claims that the Government’s efforts to eradicate and control the growth of juniper and pinyon pine trees on the reservation were also intended to produce water for downstream users.
A. Liability (pre-1946)
1. Before reciting the history of permit grazing system, it is useful to define terms used by the parties’ experts to evaluate range conditions on the reservation and to discuss generally plaintiff’s theory. Plaintiff introduced its evidence regarding erosion primarily through the testimony of four expert witnesses: Dr. Joe C. Elliott, expert in botany and range management; Michael B. Kaczmarek, expert in geology, soil science, and ground water hydrology; Mr. Watson; and John E. Wicks, expert in appraisal and agricultural economy. “Range management” was a recognized science since at least the 1930’s that sought to manage land for maximum livestock production consistent with its conservation. Since the 1940’s the science has evolved into the management of rangeland resources for optimizing multiple land uses *649 consistent with conservation of the land. The quantity of livestock that can be grazed on a particular piece of land on a sustained basis without diminishing the ability of the land to support that amount of livestock is expressed as the “carrying capacity” of that land. 13 Carrying capacity is not a static concept and may be increased or decreased over time by changes in such factors as rainfall; species composition of vegetation; and grazing pressure, among others. Carrying capacity is measured in “animal units” (“AU’s”), with one AU being the number of animals per year that would be equivalent in grazing requirements to a 1,000-pound cow.
Furthermore, the concept of “overstocking” must be distinguished from “overgrazing.” Grazing a number of livestock on a range in excess of the range’s carrying capacity constitutes overstocking. Although the long-term sustained yield of the land is exceeded, overstocking does not cause plant succession. Overgrazing is the result of livestock’s eating and trampling the vegetation cover of the range to such an extent as to reduce the carrying capacity of the range. Overstocking and overgrazing can occur independently of each other.
A “range site” is an area of land in pristine condition that will produce a predictable amount of vegetation; and a “climax site,” a range site in pristine condition, reflects a harmony between land and plants. “Primary succession” refers to the development of soil and plants to a climax community. After man has disturbed the land and altered the plant life, the plant life reflects “secondary succession.” “Deviation from climax” is a method to determine “range condition” and was utilized by Dr. Elliott.
Finally, the term “accelerated erosion” refers to a land use practice and comprehends the effects of man’s activities. “Natural” or “geologic” erosion does not reflect the influence or activities of man on the land.
Plaintiff’s theory is that by issuing grazing permits and failing to prevent illegal trespass grazing, the Government allowed the range to be both overstocked and overgrazed, resulting in a permanent reduction of the carrying capacity of the rangeland and erosional damage to the land. Defendant offered evidence to show that any overstocking that occurred did not result in overgrazed conditions on the rangeland; that the Indians themselves overgrazed the range with their own cattle and horses; that any erosion detected on the reservation was the product of natural climatic forces, rather than overgrazing; and that observable erosion is far less severe than suggested by plaintiff.
2. During the time period relevant to plaintiff’s grazing claims, the duties that the Government owed the tribe regarding the reservation’s rangeland derived from the fiduciary relationship existing between the parties. The nature of this relationship was elaborated in Navajo Tribe of Indians v. United States, 224 Ct.Cl. at 183 , 624 F.2d at 987 , and given furthe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6825845. Public record. Not legal advice.