Appendix — Washington Department of Natural Resources v. United States

Supreme Court brief1991

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IN THE OF THE CLERK

SUPREME COURT OF THE UNITED STA =

October Term, 1991

STATE OF WASHINGTON, DEPARTMENT OF

NATURAL RESOURCES AND PUBLIC

UTILITY DISTRICT NO. 1

OF PEND OREILLE COUNTY,

Petitioners,

Vv.

UNITED STATES OF AMERICA, et al.,

Respondents.

APPENDIX TO JOINT

7 PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR

THE NINTH JUDICIAL CIRCUIT

Kenneth ©. Eikenberry

Attorney Generali

Joseph Lawrence Coniff*

Senior Counsel, Assistant

Attorney General

State of Washington

Highway-Licenses Bldg.,

7th Floor, PB-71,

Olympia, WA 98504-8071

Telephone: (206) 753-2550

Jerry K. Boyd

Paine, Hamblen, Coffin, Brooke

& Miller

717 W. Sprague Ave., Ste. 1200

Spokane, WA 99204-0464

Telephone: (509) 455-6000

*Counsel of Record

No.

IN THE

SUPREME COURT OF TEE UNITED STATES

October Term, 1991

STATE OF WASHINGTON, DEPARTMENT OF

NATURAL RESOURCES AND PUBLIC

UTILITY DISTRICT NO. 1

OF PEND OREILLE COUNTY,

Petitioners,

Vv.

UNITED STATES OF AMERICA, et al.,

Respondents.

APPENDIX TO JOINT

PETiTION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR

THE NINTH JUDICIAL CIRCUIT

Kenneth 0. Eikenberry

Attorney General

Joseph Lawrence Coniff*

Senior Counsel, Assistant

Attorney General

State of Washington

Highway-Licenses Bldg.,

7th Floor, PB-71,

Olympia, WA 98504-8071

Telephone: (206) 753-2550

Jerry K. Boyd

Paine, Hamblen, Coffin, Brooke

& Miller

717 W. Sprague Ave., Ste. 1200

Spokane, WA 99204-0464

Telephone: (509) 455-6000

*Counsel of Record

APPENDIX

TABLE OF CONTENTS

Constitutional and Statutory

Prevaeeetees 4 6s ale ws KS la

Constitution of Washington,

Article XVII, Section il... . la

Chapter 2.60, Revised

Code of Washington ...... 2a

90.58.020, Revised

Code of Washington ...... 7a

Opinion of the Ninth

Circuit Court of Appeals

in United States of

America, et al., v. Pend

Oreille Public Utility

District No. 1, et al.,

926 F.2d 1502-1512

Ce ee ©

Appellant Pend Oreille

County Public Utility

District No. 1's

Petition for Rehearing

and Suggestion for

Hearing En Banc in

United States of America,

et al., v. Pend Oreille

Public Utility District

No. 1, et al.

(March 20, 1991) . «+-e«ee«« 618

State's Petition for

Rehearing With Suggestion

for Rehearing En Banc

in United States of

America, et al., v. Pend

Oreille Public Utility

District No. 1, et al.

eee es SOUP ws et le fe Ce 1088

Order of Pend Oreille

Public Utility District

No. 1 in United States of

America, et al., v. Pend

Oreille Public Utility

Beeeraee men 2, OC @l. . ...- 127a

Appeal from the United

States District Court

for the Eastern District

of Washington in United

States of America, et

al., v. Pend Oreille

Public Utility District

No. 1, et al.

Seems @, BSPA). « « © © © « « «1298

Motion for Recall of

Mandate and for Recall

of Entry of Judgment of

Pend Oreille County

Public Utility District

No. 1 in United States

of America, et al., v.

Pend Oreille Public Utility

District No. 1, et al.

eee &

iii

State's Response to

Motion for Recall of

Entry of Judgment in

United States of America,

et al., v. Pend Oreille

Public Utility District

No. 1, et al.

Ge ee ee a 6 5 6 te 1438

Findings of Fact and

Conclusions of Law and

Judgment in United States

of America, et al., v.

Pend Oreille Public Utility

District No. 1, et al.

(filed August 29, 1983)... . 149a

\12836\00006\A PP. TIT

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article XVII of the Constitution of

Washington provides as follows:

ARTICLE XVII

TIDE LANDS

§ 1 DECLARATION OF STATE OWNERSHIP.

The state of Washington asserts its

ownership to the beds and shores of all

navigable waters in the state up to and

including the line of ordinary high tide,

in waters where the tide ebbs and flows,

and up to and including the line of

ordinary high water within the banks of

all navigable rivers and lakes: Provided,

that this section shall not be construed

so as to debar any person from asserting

his claim to vested rights in the courts

of the state.

Harbors and tide waters: Art. 15.

Chapter 2.60 of the Revised Code of

Washington provides:

2.60.010 Definitions. As

used in this chapter:

(1) The term "certificate

procedure" shall mean the

procedure authorized herein by

which a federal court in dispos-

ing of a cause pending before it

submits a question of local law

to the supreme court for answer;

(2) The term "federal

court" means any court of the

United States of America includ-

ing the supreme court of the

United States, courts of appeal,

district courts and any other

court created by act of

congress;

(3) The term "supreme

court" shall mean supreme court

of Washington;

(4) The term "record"

shall mean: (a) A stipulation of

facts approved by the federal

court showing the nature of the

case and the circumstances out

of which the question of law

arises or such part of the

pleadings, proceedings and

testimony in the cause pending

before the federal court as in

its opinion is necessary to

enable the supreme court to

answer the question submitted;

(b) a statement of the question

of local law certified for

answer. The record shall

contain a certificate under the

official seal of the court,

signed by the chief judge of a

multi-judge federal court or

judge of the district court

utilizing certificate procedure

4 stating that the record contains

all matters in the pending cause

deemed material for considera-

tion of the local law question

certified for answer;

(5) The term "supplemental

record" shall mean the original

or copies of any other portion

of the proceedings, pleadings

and testimony before the federal

court deemed desirable by the

supreme court in the determina-

tion of the local law question

certified for answer. The

supplemental record shall

contain a certificate under the

official seal of the court

signed by the chief judge of

such multi-judge federal court

or judge of the district court,

certifying that the supplemental

record contains all additional

matters requested;

(6) The term "opinion"

shall mean the written opinion

of the supreme court of Wash-

———eeee

ington and shall include the

certificate of the clerk of such

court under seal of court

stating that the opinion is in

answer to the local law question

submitted. [1965 c 99 § 1.)

2.60.020 Federal court

certification of local law

question. When in the opinion

of any federal court before whom

a proceeding is pending, it is

necessary to ascertain the local

law of this state in order to

dispose of such proceeding and

the local law has not been

Clearly determined, such federal

court may certify to the supreme

court for answer the question of

local law involved and the

Supreme court shall render its

opinion in answer’. thereto.

[1965 c 99 § 2.]

2.60.030 Practice and

procedure. Certificate proced-

ure shall be governed by the

following provisions:

(1) Certificate procedure

may be invoked by a federal

court upon its own motion or

upon the motion of any inter-

ested party jim the litigation

involved if tne federal court

grants such motion.

(2) Certificate procedure

shall include and be based upon

the record and may include a

supplemental record.

(3) Certificate procedure

costs shall be equally divided

between plaintiff and defendant,

subject to reallocation as

between or among the parties by

the federal court involved.

(4) The appellant or

moving party in the federal

cour* shall file and serve upon

its adversary its brief on the

question certified within thirty

days after the filing of the

record in the supreme court.

The appellee or responding party

in the federal court shall file

and serve upon its adversary its

brief within twenty days after

receipt of appellant's or moving

party's brief and a reply brief

shall be filed within ten days.

Time for filing record, supple-

mental record or briefs may be

extended for cause.

(5) Oral argument as in

other causes on the merits may

be had upon request of the

supreme court or upon applica-

tion of any interested party in

the certificate procedure.

(6) The supreme court

shall forward to the federal

court utilizing certificate

procedure its opinion answering

the local law question

submitted.

(7) The supreme court may

adopt rules of practice and

procedure to implement or other-

wise facilitate utilization of

certificate procedure. {1965 c

99 § 3.)

2.60.900 Short title.

This act may be cited as the

"Federal court local law

certificate procedure act."

[1965 c 99 § 4.]

Chapter 90.58.020 of the Revised Code

of Washington (the Shoreline Management

Act of 1971) provides:

ings--State policy enunciated--

Use preference. The legislature

finds that the shorelines of the

state are among the most valu-

able and fragile of its natural

resources and that there is

great concern throughout the

state relating to their utiliza-

tion, protection, restoration,

and preservation. In addition,

it finds that ever increasing

pressures of additional uses are

being placed on the shorelines

necessitating increased coordi-

nation in the management and

development of the shorelines of

the state. The legislature

further finds that much of the

shorelines of the state and the

uplands adjacent thereto are in

private ownership; that unre-

stricted construction on the

privately owned or publicly

owned shorelines of the state is

not in the best public interest;

and therefore, coordinated

planning is necessary in order

to protect the public interest

associated with the shorelines

of the state while, at the same

time, recognizing and protecting

private property rights consis-

tent with the public interest.

There is, therefor, a clear and

urgent demand for a planned,

rational, and concerted effort,

jointly performed by federal,

state, and local governments, to

prevent the inherent harm in an

uncoordinated and piecemeal

development of the state's

shorelines.

It is the policy of the

state to provide for’ the

management of the shorelines of

the state by planning for and

fostering all reasonable and

appropriate uses. This policy

is designed to insure. the

development of these shorelines

in a manner which, while allow-

ing for limited reduction of

rights of the public in the

navigable waters, will promote

and enhance the public interest.

This policy contemplates

protecting against adverse

effects to the public health,

the land and its vegetation and

wildlife, and the waters of the

state and their aquatic life,

while protecting generally

public rights of navigation and

corollary rights incidental

thereto.

The legislature declares

that the interest of all of the

people shall be paramount in the

management of shorelines g¢f

state-wide significance. The

department, in adopting guide-

lines for shorelines of state-

wide significance, and local

government, in developing master

programs for shorelines of

state-wide significance, shall

give preference to uses in the

following order of preference

which:

(1) Recognize and protect

the state-wide interest over

local interest;

(2) Preserve the natural

character of the shoreline;

(3) Result in long term

over short term benefit;

(4) Protect the resources

and ecology of the shoreline;

(5) Increase public access

to publicly owned areas of the

shorelines;

(6) Increase recreational

opportunities for the public in

the shoreline;

(7) Provide for any other

element as defined in RCW

90.58.100 deemed appropriate or

necessary.

In the implementation of

this policy the public's oppor-

10a

tunity to enjoy the physical and

aesthetic qualities of natural

shorelines of the state shall be

preserved to the greatest extent

feasible consistent with the

overall best interest of the

state and the people generally.

To this end uses shall be

preferred which are consistent

with control of pollution and

prevention of damage to the

natural environment, or are

unique to or dependent upon use

of the state's shoreline.

Alterations of the natural

condition of the shorelines of

the state, in those limited

instances when authorized, shall

be given priority for single

family residences, ports,

shoreline recreational uses

including but not limited to

parks, marinas, piers, and other

improvements facilitating public

access to shorelines of the

state, industrial and commercial

developments which are particu-

larly dependent on their

location on or use of the

shorelines of the state and

other development that will

provide an opportunity for

substantial numbers oof the

people to enjoy the shorelines

of the state. Alterations of

the natural condition of the

shorelines and wetlands of the

state shall be recognized by the

department. Shorelines and

lia

wetlands of the state shall be

appropriately classified and

these classifications shall be

revised when circumstances

warrant regardless of whether

the change in circumstances

occurs through man-made causes

or natural causes. Any areas

resulting from alterations of

the natural condition of the

shorelines and wetlands of the

state no longer meeting the

definition of "shorelines of the

state" shall not be subject to

the provisions of chapter 90.58

RCW. -

Permitted uses in the

shorelines of the state shall be

designed and conducted in a

manner to minimize, insofar as

practical, any resultant damage

to the ecology and environment

of the shoreline area and any

interference with the public's

use of the water. (1982 1st

ex.s. C 13 § 1; 1971 ex.s. Cc 286

§ 2.)

12a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff-Appellee,

and

KALISPEL INDIAN TRIBE,

Intervening-Plaintiff,

v. 2

PEND OREILLE PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corp.,

Defendant,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant~-Intervenor-Appellant.

No. 88-3617

D.C.No. CV-80-116-JLQ

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian

Tribe and individual allottees,

Plaintiff-Appellee,

ae Te eee ne Sela aR AN a ar tan nso be en,

de a Net ik cetinenigmd Mya Ne

tk ee eee tn

bee AeA tak SOT ONS ser mg aol a atl

13a

and

KALISPEL INDIAN TRIBE,

Intervening-Plaintiff,

PEND OREILLE PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corp.,

Defendant-Appellant,

and

DEPARTMENT OF NATURAL

RESOURCES, STATE OF WASHINGTON,

Defendant-Intervenor.

No. 88-3618

D.C.No. CV-80-116-JLQ

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian

Tribe and individual allottees,

Plaintiff-Appellant,

and

KALISPEL INDIAN TRIBE,

Intervening-Plaintiff,

14a

Vv.

PEND OREILLE PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corp.,

Defendant-Appellee,

and

DEPARTMENT OF NATURAL

RESOURCES, STATE OF WASHINGTON,

Defendant-Intervenor.

No. 88-3619

D.C.No.

CV-80-116-JLQ

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian

Tribe and individual allottees,

Plaintiff,

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff-Appellant,

PEND OREILLE PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corp.,

Defendant-Appellee,

and

| -

DEPARTMENT OF NATURAL

RESOURCES, STATE OF WASHINGTON,

Defendant~-Intervenor-Appellee.

No. 88-3669

D.C.No. CV-80-116-JLQ

APPEAL FROM: United States District

Court for the Eastern

District of Washington

Richard M. Bilby and

Justin L. Quackenbush,

District Judges, Presiding

COUNSEL OF RECORD:

For defendant appellant Pend Oreille:

James P. McNally,

Ione, Washington.

Jerry K. Boyd and Diane M. Hermanson,

Paine, Hamblen, Coffin, Brooke &

Miller,

Spokane, Washington.

For the state appellant:

ws Lawrence Coniff, Assistant

Attorney-General,

Olympia, Washington

For the plaintiff-appellee:

; Roger J. Marzulla, Assistant

Attorney-General, United States

; Department of Justice,

Washington, D.C.

16a

Vicki Plaut, Margaret Crow, Margaret

Klarquist, Elizabeth Ann Peterson,

United States Department of Justice,

Washington, D.C.

For the intervenor-plaintiff:

Robert D. Dellwo and Brian Collins,

Dellwo, Rudolph & Schroeder,

Spokane, Washington.

Argued and submitted:

October 30, 1989-Seattle, Washington

Filed: March 6, 1991

17a

OPINION

BROWNING, Circuit Judge:

The Kalispel Indian Reservation in

northeastern Washington was established by

President Woodrow Wilson by Executive

Order No. 1904 on March 23, 1914. The

Pend Oreille River forms the western

boundary of the reservation. In 1955 the

Pend Oreille Public Utility District (PUD)

completed construction of the Box Canyon

Dam downstream from the reservation.

18a

SUMMARY

Native Americans

Affirming in part, vacating in part

and remanding a district court judgment,

the court of appeals held that payment by

the Indian Claims Commission to an Indian

Tribe for the taking of its ancestral

lands by the federal government prevented

the Tribe's claims to a riverbed in the

reservation based upon aboriginal title.

The Pend Oreille River forms the

western boundary of the Kalispel Indian

Reservation in Washington. In 1955, the

Pend Oreille Public Utility District

completed construction of a dam downstream

from the reservation. Prior to construc-

tion of the dam, the water level of the

river as it passed the reservation reached

approximately 2041 feet during the springg

receded to 2022 feet by late summer, and

190

remained at that level until the following

spring. Because of the dam, land once

flooded only in the spring was under water

all year. The United States brought a

trespass action against PUD on behalf of

the Kalispel Tribe and individual Kalispel

Indian allottees, alleging the dam

submerged riparian land traditionally used

by the Tribe for agricultural purposes,

and seeking damages and injunctive relief.

The Tribe filed a complaint in inter-

vention asserting title to the bed of the

river and seeking compensation for

trespassory use. The State intervened,

claiming soveseien title to the riverbed

had passed to the State upon its admission

to the Union. The Tribe also sought to

amend its complaint to assert a right to

use of the waters of the river, but the

district court denied the motion as

20a

untimely. The district court ruled for

the Tribe, concluding that by raising the

level of the river the PUD trespassed on

the Tribe's riparian lands. However, the

court ruled that the State, not the Tribe,

had “itle to the riverbed.

{1} Both federal and state law

mandated exclusion of annual spring floods

in calculating the ordinary high water

live of the river in question. [2] The

Ninth Circuit has rejected the mistaken

assumption that the annual spring floods

of the river determine the ordinary high

water line. [3] The court noted that the

determinative factual issue was whether,

prior to construction of the dam, the

lands between the elevations of 2028 and

2041 feet, though subject to seasonal

flooding, were nonetheless useful for

agricultural or grazing purposes. The

21a

district court's finding that they were

was well supported by the record.

[4] Concerning the Tribe's claim of

aboriginal title to the riverbed, the

court noted that it has repeatedly held

that payment of a compensation award by

the Indian Claims commission for a taking

of tribal aboriginal lands conclusively

establishes that the aboriginal title has

been extinguished. Thus, the court's

inquiry was limited to whether the taking

of the riverbed was in fact adjudicated by

the Commission. (5] The district court

properly found that compensation to the

Tribe by the Commission for takings of

tribal lands prevented the Tribe from

asserting a claim to the riverbed based

upon aboriginal title.

[6] The court rejected as insuffi-

cient as a matter of law the Tribe's

22a

factual claims that it had acquired title

to the riverbed as part of a de facto

reservation. {7} A party seeking to

establish that a grant by the federal

government includes the bed of a navigable

river must meet a heavy burden. Here, the

proof offered by the Tribe was insuffi-

cient to overcome this strong presumption

against conveyance of a riverbed. [8]

However, the district court erred in

denying the Tribe's motion to amend its

complaint in intervention to assert a

claim under Winters v. United States.

Therefore, the district court's judgment

on this issue was reversed and remanded

for reconsideration of the motion.

Prior to construction of the dam, the

water level of the river as it passed the

reservation reached approximately 2041

feet during the spring, receded to 2022

23a

feet by late summer, and remained at that

level until the following spring. After

completion of the dam, the spring level

remained at 2041 feet, but during the

remaining months of the year the water

level rarely dropped below 2032 feet.

Thus, because of the dam, land once

flooded only in the spring was -.nder water

all year.

The United States brought a trespass

action against the PUD on behalf of the

Kalispel Indian Tribe and individual

Kalispel Indian allottees, alleging the

dam submerged riparian land traditionally

used by the Tribe for agricultural

purposes, and seeking damages and

injunctive relief.

The Tribe filed a complaint in

intervention asserting title to the bed of

the river and seeking compensation for

24a

trespassory use. The Tribe also jointed

in the claim for trespass on riparian

lands asserted on its behalf by the United

States. The State intervened, alleging

sovereign title to the riverbed has passed

to the State upon its admission to the

Union. The Tribe also sought to amend its

complaint to assert a right to use of the

waters of the river under Winters v.

United States, 207 U.S. 564 (1908). The

district court denied the motion as

untimely. The United States did not join

the Tribe in its assertion of ownership of

the riverbed or the right to use the

waters of the river under Winters.

The district court divided the trial

into three phases. Phase 1 was devoted to

the issue of liability for trespass on

riparian lands. Phase 2 was devoted to

the dispute between the Tribe and the

25a

State over title to the riverbed. Phase 3

dealt with remedies.

After a bench trial in Phase 1, the

court ruled in favor of the Tribe,

concluding that by raising the level of

the river the PUD trespassed on the

Tribe's riparian lands. The State and the

PUD appealed this ruling. The district

court ruled in favor of the State in

Phase 2, holding that the State, not the

Tribe, had title to the riverbed.' The

Tribe appealed this ruling. In Phase 3

the court awarded the Tribe damages for

the trespass but denied injunctive relief.

The issues raised in Phase 3 are the

subject of a separate appeal.

'The parties dispute the nature of the proceedings in

Phase 2. The State and PUD assert a bench trial took place.

The Tribe maintains the district court ruled against it on a

motion for summary judgment.

26a

Following the district court's

approach, we first consider whether the

dam caused the waters of the river to

trespass upon the Tribe's riparian lands

where the river borders the reservation.’

The parties agree that the ordinary high

water line of the river marks the boundary

between riparian lands and riverbed. If

the dam raised the river above this line a

trespass upon the Tribe's riparian lands

occurred. The dispute is over the

location of this line.

The district court held the ordinary

high water line of the river as it flows

past the reservation lay at an elevation

of 2028 feet. Since all lands below 2032

"For the purpose of Phase 1 of the trial, title to the

riverbed was assumed to be in the State. We address the

Tribe’s conflicting claim to the riverbed in Part II.

27a

feet are now permanently submerged, the

court concluded operation of the dam

trespassed on the Tribe's riparian lands.

The State and the PUD contend the

ordinary high water line lay at an

elevation 2041 feet, and because the dam

does not raise the river above that level

no trespass occurred. They argue the

district court's contrary ruling is based

upon a misconstruction of the applicable

law and a clearly erroneous finding of

fact.

We first address the claim that the

district court misconstrued the applicable

law.

The State and the PUD argue that the

line of ordinary high water is properly

defined as the highest level reached by

the stream each year, including the annual

28a

spring flood, averaged over a period of

years. This formula places the ordinary

high water line at 2041 feet. The United

States and the Tribe contend that the line

of ordinary high water is the line below

which action of the water precludes the

growth of useful land vegetation. This

line corresponds with the highest level

normally reached by the river each year,

but excluding the annual spring rise. The

district court found that prior to

construction of the dam this line had lain

at 2028 feet.

(1) Federal and state law are the

same on the definitional issue determina-

tive of Phase 1 and we therefore need not

resolve which controls. Both mandate

exclusion of annual spring floods in

calculating the ordinary high water line.

: 29a

{2} The federal rule was stated in

Howard v. Ingersoll, 54 U.S. (13 How.) 409

(1851). The Supreme Court said:

[The riverbed] neither takes in

overflow land beyond the bank,

nor includes swamps or low

grounds liable to be overflowed,

but reclaimable for meadows or

agriculture, or which, being too

low for reclamation, though not

always covered with water, may

be used for cattle to range

upon, as natural or uninclosed

pasture.

Id. at 446. Under Ingersoll, lands

periodically submerged but still useful

for agricultural purposes are thus above

the ordinary high water line. More

recently, this Circuit followed the

Ingersoll approach in United States v.

Claridge, 416 F.2d 933, 934 (9th Cir.

1969), rejecting "the mistaken assumption

that the annual spring floods of the

river" determine the ordinary high water

line. Accord Borough of Ford City v.

30a

United States, 345 F.2d 645, 648 (3d Cir.

1965).

The Washington Supreme Court adopted

the same rule in Austin v. City of

Bellingham, 126 P. 59 (1912):

"High-water mark does not mean

the height reached by unusual

floods; for these usually soon

disappear. Neither does it mean

the line ordinarily reached by

the great annual rises of the

river, which cover in places

lands that are valuable for

agricultural purposes; nor yet

does it mean meadow land

adjacent to the river, which,

when the water leaves it, is

adapted to and can be used for

grazing or pasturing purposes.

The line, then, which fixes the

high-water mark is that which

separates what properly belongs

to the river bed from that which

belongs to the riparian owner;

that is, the owner of adjoining

land. Soil which is submerged

so long or so frequently, in

ordinary seasons, that

vegetation will not grow on it

may be regards as a part of the

bed of the river which overflows

it.®

ee ee eS

a eae eh Rar a

31a

Id. at 61 (quoting 4 Words and Phrases at

3290). The rights of the State to the

riverbed, the court’ continued, “are

limited to the line of ordinary high

water, and not to the line of the highest

water that may be proved.” Id.

*We reject the arguments advanced by the State and

the PUD to avoid Austin. Contrary to their argument,

Austin’s statement of the rule is not ambiguous in any respect

relevant to this case. Neither is it dicta; and if it were, it

would still be the best evidence as to how the Washington

Supreme Court would decide the issue.

The State’s argument that it is not bound by Austin’s

statement of the law because the State was not a party to the

suit is frivolous.

We also reject the State’s suggestion that we defer to

the administrative practice of Washington’s Department of

Natural Resources in determining the ordinary water mark--

Washington law is determined by the Supreme Court of the

State, not by its executive agencies. The Washington Court

may consider contrary administrative practice a reason for

changing the rule adopted in Austin, see Overton v.

Washington State Economic Assistance Auth. , 637 P.2d 652,

654 (Wash. 1981), but we may not. The same is true of the

argument that placing the ordinary high water mark at a

higher elevation would serve the public interest by preserving

32a

Thus, whether state or federai law

controls, the district court properly

excluded the annual rise of the Pend

Oreille River in determining the river's

ordinary high water line.

[3] The State and the PUD also

challenge several of the district court's

state ownership over shoreline areas valuable for public

recreation; as well as the suggestion that the rule applicable

to tidelands (that the line of ordinary high water is the mean

high tide over a period of time) should be applied to non-

tidal waters as well. The relevant question is what

Washington law now is, not what it should be or may

become.

Finally, we reject the contention of the State and the

PUD that we should certify this issue to the Washington

Supreme Court or stay our decision pending the outcome of

a related case now working its way through the Washington

courts. Certification is inappropriate when, as here, the

supreme court of a state has already ruled and its decision is

unambiguous. See City of Houston v. Hill, 482 U.S. 451,

470-71 (1987); In re Elliott, 446 P.2d 347, 358 (Wash.

1968). For the same reason, we decline to stay our decision.

ee ee

33a

subsidiary findings of fact. The

determinative factual issue, however, was

whether, prior to construction of the dan,

the lands between the elevations of 2028

and 2041 feet, though subject to seasonal

flooding, were nonetheless useful for

agricultural or grazing purposes, see

Ingersoll, 54 U.S. at 446; Austin, 126 P.

at 61; and the district court's finding

that they were is well supported by the

record.

Hydrological calculations established

that prior to the construction of the dan,

lands at 2028 elevation were above the

level of the river for three quarters of

the year. Witnesses testified that prior

to construction, hay was harvested,

livestock was pastured and wild carrots

and onions were gathered on lands at and

below the 2028 foot elevation. As the

34a

district court noted, before operating the

dam the PUD itself obtained from

individual Indian allottees flowage

easements that provided:

During the haying season which

is approximately July 1 to

September 15th of each year,...

Box Canyon Dam gates will be

operated so that the level of

the water ... will not exceed

elevation 2028 feet.‘

In addition, visual inspection by the

district court judge revealed partially

submerged tree stumps near the 2028 level.

‘The PUD contends the easements were offered in

settlement of a dispute with individual Indian allottees and

were therefore inadmissible under Federal Rule of Evidence

408. Rule 408 only bars admission of settlement offers “to

prove liability for or invalidity of the claim or its amount."

Fed.R.Evid. 408. “This rule ... does not require exclusion

when the evidence is offered for another purpose ...." id.;

see also United States Aviation Underwriters, Inc. v. Olympia

Wings, Inc., 896 F.2d 949, 956 (Sth Cir. 1990)

("Fed.R.Evid. 408 permits settlement evidence for any

purpose except to prove or disprove liability or the amount

of the claim.") Here, the easements were introduced only to

prove that the disputed lands were suitable for agricultural

use prior to construction of the dam.

35a

In light of all this, we cannot say

the district court's finding that the high

water line was at an elevation of 2028

feet is clearly erroneous.

We turn to the dispute between the

Tribe and the State over ownership of the

riverbed. The Tribe asserts beneficial

title to the riverbed on two bases.

First,the Tribe claims unrelinquished

aboriginal title to the bed of the river,

based upon possession from time

immemorial. Second, the Tribe contends

that prior to Washington's admission to

the Union in 1889 the United States

established a de facto reservation for the

Tribe that included the riverbed.°

*The Tribe also appears to suggest the 1914 Executive

Order establishing the current Reservation may have

conveyed the riverbed to the Tribe. Such a claim would be

meritless. When Washington was admitted to the Union in

36a

_We first address the Tribe's claim of

aboriginal title. A tribe has aboriginal

title to lands occupied exclusively by the

tribe as its ancestral home. United

States ex rel. Hualpai Indians of Ariz. v.

Santa Fe Pacific R.R. Co., 314 U.S. 339,

345 (1941). For the purposes of this

appeal, the parties have assumed the Tribe

had aboriginal title to the area involved

in this litigation, including the

riverbed, prior to admission of Washington

State to the Union in 1889. The State

contends, however, that the United States

1889, ownership of the riverbed passed from the United

States to the State under the Equal Footing Doctrine. Utah

Div. of State Lands v. United States, 482 U.S. 193, 196

(1987); Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 238,

258 (1845). When the Executive Order issued, the United

States had no title or other claim to the riverbed it could

convey to the Tribe by Executive Order, Act of Congress, or

otherwise.

37a

extinguished the Tribe's aboriginal title

by taking, and that receipt by the Tribe

of compensation for the taking following

proceedings fore the Indian Claims

Commission “establishes conclusively that

a taking occurred." United States v.

Dann, 873 F.2d 1189, 1199 (9th Cir. 1989).

The Indian Claims Commission was

established by Congress in 1946, 25 U.S.C.

§ 70 (1963), to award compensation for

taking of Indian lands by the federal

government. Id. § 70a(4) (Supp. 1982).

The Tribe filed a complaint with the

Commission in 1951 seeking compensation

for the taking of its ancestral lands.

The petition alleged the Tribe had

occupied a large area of lands in the

states of Washington, Idaho, and Montana

“from time immemorial," and that the

United States "did forcibly seize and take

38a

from [the Tribe] the said iands" without

compensation. Petition of Kalispel Tribe

before The Indian Claims Commission

G4 44.5. After seven years of litigation

the Commission held in favor of the Tribe.

The Commission found that "the United

States, without [the Tribe's} consent,

began acquiring or disposing of said lands

for its own use and benefit ... until the

[Tribe] was deprived of the entire tract.

.- [Tjhe [Tribe) received no compensation

for any part of the same." The Lower Pend

D'Oreille or Kalispel Tribe of Indians v.

United States, 6 Ind. Cl. Com. 353, 368

(June 9, 1958). After five years of

settlement negotiations, the United States

agreed to pay the Tribe $3,000,000 in

compensation for the taking of its

aboriginal lands. This stipulated settle-

ment was approved by the Commission on

39a

March 21, 1963. Lower Pend D'Oreille or

Kalispel Tribe of Indians v. United

States, 12 Ind. Cl. Com. 141 (March 21,

1963), and was paid by the United States

in due course.

{4] “The ‘chief purpose of the Act

{establishing the Commission] was to

dispose of the Indian claims problem with

finality.'" United States v. Dann, 470

U.S. 39, 45 (1985) (quoting H.R. Rep. No.

1466, 79th Cong., ist Sess., 10 (1945)).

Consistent with this purpose, this court

has repeatedly held that payment of a

Commission award of compensation for a

taking of aboriginal lands conclusively

establishes that the aboriginal title has

been extinguished. United States v. Dann,

873 F.2d 1189, 1194 (9th Cir. 1989);

United States v. Gemmill, 535 F.2d 1145,

1149 (9th Cir. 1976). Our inquiry is

40a

therefore limited to whether the taking of

the riverbed was in fact adjudicated by

the Commission.® We think it is plain

that it was.

The parties agree the land for which

the Tribe sought compensation before the

Commission measured 2,373,000 acres if the

lands beneath the Pend Oreille River and

other rivers and lakes were included, and

2,247,000 acres if the submerged lands

*The Tribe appears to challenge the correctness of the

Commission’s finding that the riverbed was taken by the

United States. The Tribe points out that it did not formally

cede its aboriginal lands as a part of a treaty or other

accommodation as commonly occurred with other tribes and

thus is was necessary to establish the taking of the Tribe’s

aboriginal lands by other proof. See, e.g., United States v.

Gemmill, 535 F.2d 1145, 1148 (9th Cir. 1976). However,

it is not open to the Tribe to argue, or this court to inquire,

whether the Commission’s finding that the riverbed was

taken is supported by the record before the Commission.

Jurisdiction to review the Commission’s decision is vested

exclusively in the Court of Claims. 25 U.S.C. § 70s(b)

(Supp. 1982). Neither party appealed the Commission’s

findings.

4la

were excluded. The first paragraph of the

stipulation, approved by the Commission,

states:

([Tjhe Commission determined that

{the Tribe) had proved

aboriginal title to specifically

described lands in Washington,

Idaho and Montana, and that [the

Tribe] was entitled to recover

for the fair market value

thereof, and it was stipulated

that the area contained

2,373,000 acres.

12 Ind. Cl. Com. at 142 (emphasis added).

The Commission reiterated in its findings

of fact that compensation was awarded for

2,247,000 acres of dry lands and 126,000

acres of submerged lands. Id. at 149.

The point was made again by the Tribe's

own attorney in a letter to the

Commissioner of Indian Affairs, dated

January 13, 1963, informing the

Commissioner that "[i]t was stipulated by

counsel for both parties that the area

42a

awarded by the Commission contained

2,373,000 acres, of which 2,247,000 acres

were land, and 126,000 acres were water."

Despite this apparent clarity, the

Tribe maintains the stipulation should be

construed as covering only dry lands. The

stipulation states the compensation of

$3,000,000 was calculated on the basis of

$1.34 per acre. Multiplying 2,247,000

acres by $1.34 yields $3,010,980,

approximately the amount the Tribe

actually received, while multiplying

2,373,000 acres by $1.34 results in a

total of $3,179,820. Since the Tribe was

not awarded the larger amount, the Tribe

maintains the stipulation was meant to

include only the dry acreage. However,

the record reveals the contrary. As the

Commission stated, "[njo evidence was

produced or suggested that the area under

43a

water was of any special value." Id. at

159. It is thus apparent the Commission

awarded $1.34 per acre for the dry lands

and no compensation for the submerged

lands.

The Tribe argues the Commission could

not have found all 2,373,000 acres had

been taken by the United States because

that figure includes the Tribe's current

reservation, which the United States has

not taken. From this the Tribe argues the

2,247,000 acre figure, which excludes the

submerged lands, must represent the lands

the Commission found had been taken. One

difficulty with the Tribe's argument is

that the 2,247,000 acre figure also

includes the current reservation since it

excludes only the submerged lands. In any

event, the January 13, 1963 letter from

the Tribe's attorney to the Commissioner

44a

of Indian Affairs eliminates any

ambiguity. The Tribe's attorney informed

the Commissioner "that the $3,000,000

figure is a net figure after deduction of

all gratuitous offsets ... including the

value of the 4,600 acre Kalispel Reserva-

tion set aside for the Tribe by the

Executive Order of 1914." (Emphasis in

original). In short, the $3,000,000

settlement figure was calculated on the

premise that the Tribe's present

reservation was not taken by the United

States.’

7We also note that even if the settlement confirmed

the taking of the Tribe’s aboriginal title to the present

reservation, the Tribe could still assert title to the land (other

than that beneath the navigable river) under the 1914

Executive Order. Thus, it would not be implausible that the

Tribe would have agreed to relinquish its aboriginal title.

iat cic hs elaine ee ince wie ke

45a

(5) The district court properly held

the Tribe cannot assert a claim to the

riverbed based upon aboriginal title.

The Tribe also asserts ownership of

the riverbed as part of what it calls a

"de facto reservation." The Tribe

maintains that prior to the admission of

Washington to the Union a series of

actions by the United States treated the

Tribe's current reservation, along with

the bed of the river, as a reservation in

fact, thereby establishing a reservation

for the Tribe that included the river.

The State counters that if a de facto

reservation existed it did not include the

bed of the river.

[6] The parties dispute the

appropriate standard of review on this

issue. The Tribe maintains it should be

46a

allowed to proceed to trial if it has

raised any triable issue of fact because,

in its view, the district court ruled

against it on summary judgment. See Tzung

v. State Farm Fire and Casualty Co., 873

F.2d 1338, 1339-40 (9th Cir. 1989). The

State contends an actual though truncated

trial was held and therefore we must

uphold the district court's judgment

unless it was based upon a clearly

erroneous finding of fact or a mistaken

view of the law. See United States v.

McConney, 728 F.2d 1195, 1201 (9th Cir.

1984) (en banc). Because we conclude the

Tribe's factual claims, even if true, are

insufficient as a matter of law to

establish the Tribe's title to the

riverbed as part of a de facto reserva-

tion, we need not resolve this preliminary

dispute.

ee ee Oe

Ta at ae tre ar adin Raat ne a ein hee

47a

The Tribe's theory, as described in

its complaint, in motions before the

district court, and in its brief before

this court, is that in the latter half of

the nineteenth century its members were

forced into the area constituting its

current reservation by the encroachment of

non-Indian settlers; that the United

States encouraged the exclusive occupation

of the current reservation by the Tribe by

denying non-Indians homestead rights,

mineral rights, and railroad patents in

this tract; and that the federal

government provided services to the

Tribe's members in this area as if they

were living on a reservation. The Tribe

also maintains that its members

historically have been dependent upon the

river at this location and that the United

48a

Stats was aware of this dependence when it

created the de facto reservation.

Assuming these claims, if true, may

be sufficient to establish a de facto

reservation, see, e.g., Minnesota v.

Hitchcock, 185 U.S. 373, 389-90 (1902);

Sac & Fox Tribe v. Licklider, 576 F.2d

145, 149-50 (8th Cir. 1978); 18 Op. Att'y

Gen. 141 (1885), they are insufficient as

a matter of law to reserve the bed of the

river to the Tribe.

{7} A party seeking to establish

that a grant by the United States includes

the bed of a navigable river must meet a

heavy burden. See, e.g., Utah Div. of

State Lands v. United States, 482 U.S.

193, 196-98 (1987); Montana v. United

States, 450 U.S. 544, 551-52 (1981);

United States v. Holt State Bank, 270 U.S.

49, 55 (1926). As the Court wrote in Montana:

“= = |.

49a

{(Bjecause control over’ the

property underlying navigable

waters is so strongly identified

with the sovereign power of

government, it will not be held

that the United States has

conveyed such land except

because of some international

duty or public exigency. A

court deciding a question of

title to the bed of a navigable

water must, therefore, begin

with a strong presumption

against conveyance by the United

States, and must not infer such

a conveyance unless the

intention was definitely

declared or otherwise made

plain, or was rendered in clear

and especial words, or unless

the claim confirmed in terms

embraces the land under the

waters of the strean.

Montana, 450 U.S. at 552 (citations and

internal quotations omitted).* The proof

‘Weighty policy considerations underlie this

presumption against conveyance of a riverbed to a private

party. Navigable waterways are “chiefly valuable for the

public purposes of commerce, navigation, and fishery, and

for the improvements necessary to secure and promote those

purposes ....” Shively v. Bowlby, 152 U.S. 1, 49 (1894); see

also Utah Div. of State Lands v. United States, 482 U.S.

193, 195 (1987). Because these interests would be defeated

by private ownership of the beds underlying navigable

eee

50a

offered by the Tribe is sufficient to

overcome this strong presumption against

conveyance of a riverbed.

The Tribe seeks to meet its burden by

relying upon the cases in which we have

held tribal dependence upon a river is an

important factor in resolving a dispute

over title to the riverbed. See Puyallup

Indian Tribe v. Port of Tacoma, 717 F.2d

1251, 1258 (9th Cir. 1983); Muckleshoot

Indian Tribe v. Trans-Canada Enters.,

Ltd., 713 F.2d 455, 457 (9th Cir. 1983);

Confederated Salish and Kootenai Tribes v.

Namen, 665 F.2d 951, 962 (9th Cir. 1982).

In each of these cases, however, there was

compelling evidence that the United States

intended to include the disputed riverbed

waterways, "“[t]itle to such land [is] ... vested in the

sovereign for the benefit of the whole people.” Utah

Division of State Lands, 482 U.S. at 196.

ee ae T ee Le eee

5la

in the reservation, in addition to the

tribe's historic dependence on the

disputed river.

The Puyallups were confined by treaty

to a reservation with no access to a river

which was the center of their "spiritual,

religious and social life." Puyallup, 717

F.2d at 1259 (citation and internal

quotations omitted). Fighting broke out

between Indians and non-Indians in part

because of the unavailability of the

river. Id. at 1260. A meeting between

the Puyallups and Territorial Governor

Stevens was convened to seek an end to the

hostilities. At the meeting, "Governor

Stevens reminded the Indians that he had

promised to modify the treaty reservations

if they were unsuitable." Id. (citation

internal quotations omitted). As a result

of the meeting, "the Puyallup Reservation,

52a

at the insistence of the Indians, was

enlarged specifically to include a segment

of the Puyallup River." Id. at 1261. The

Puyallups' specific insistence upon

inclusion of the riverbed, followed

immediately by expansion of the

reservation by the United States to

include the river, strongly suggested an

intention on the part of the United States

to include the riverbed within the newly

enlarged reservation. Indeed, in

Muckleshoot, a companion case decided the

same day, we held this was the single most

important factor in overcoming’ the

presumption against conveyance.

Muckleshoot, 713 F.2d at 458.

The existence of hostilities between

the Puyallups and non-Indian settlers

relating to the dispute over access to the

river was also of great significance.

53a

Puyallup, 717 F.2d at 1260. The Supreme

Court has repeatedly held that resolution

of disputes over title to a riverbed must

be guided by "a congressional policy...to

grant away land under navigable waters

only ‘in case of some international duty

or public exigency.'" Utah Div. of State

Lands, 482 U.S. at 197 (quoting Shively v.

Bowlby, 152 U.S. 1, 50 (1894) (emphasis in

original); see also Montana, 450 U.S. at

552. The outbreak of hostilities consti-

tuted the “public exigency” required by

Utah Div. of State Lands and Montana, but

absent here. See Puyallup, 717 F.2d at

1260.

It was only “in light of these

pertinent facts" that the Puyallup court

concluded the presumption against

conveyance of ae riverbed had _. been

rebutted. Id.

54a

In Muckleshoot, the same two factors,

absent here, were also present. "(Tjhe

Muckleshoot Reservation was expanded at

the insistence of the Indians specificaily

to include a section of the White River on

which the Tribe could continue to exercise

its traditional fishing lifestyle." 713

F.2d at 458; and the expansion of the

reservation was a response to a serious

threat of hostilities that constituted a

"public exigency." Id. at 457-58. Again,

only in light of these two factors did we

hold that the presumption against

conveyance of the riverbed was overcome.

Id.°

*We do not mean to hold that these two factors are

essential to any claim of tribal ownership to a riverbed, but

only to emphasize that mere reliance upon a river is not

enough to overcome the “strong presumption" against

conveyance of a riverbed by the United States. Montana,

450 U.S. at 552.

- Actonire re

55a

Nor does Confederated Salish and

Kootenai Tribes v. Namen, 665 F.2d 951

(9th Cir. 1982), support the Tribe's

position. There a treaty expressly

included half of Flathead Lake within the

boundaries of the reservation. Id. at

962. Namen thus fell squarely within the

language of Montana that the intention to

convey a lakebed could be found where the

conveying instrument by its "terms

embraces the land under the waters of the

stream [or lake]." Montana, 450 U.S. at

552. There is no conveying instrument in

this case that by its terms grants the bed

of the Pend Oreille to the Tribe.

In contrast to the compelling factors

present in Puyallup, Muckleshoot, and

Namen, the Tribe offers no relevant

evidence other than its dependence upon

the river and the United States' awareness

56a

of this dependence. The other evidence

offered by the Tribe -- the concentration

of the Tribe in the area of its present

reservation, the exclusion of non-Indian

settlers from that area, and the provision

of federal services to members of the

Tribe living there -- may be relevant to

establishing the existence of a de facto

reservation; but none of these events is

probative of an intent on the part of the

United States to convey the riverbed to

the Tribe.

Iil

{8} We turn finally to the Tribe's

claim that the district court erred in

denying the Tribe's motion to amend its

complaint in intervention to assert a

Claim under Winters v. United States, 207

le fe ae 7

57a

U.S. 564 (1908). The Tribe proposed the

amendment approximately eleven months

after the court entered judgment against

the Tribe in Phase 2 of the trial, and

approximately two weeks prior to the

commencement of Phase 3. The district

court rejected the proposed amendment as

untimely. The question is whether the

district court abused its discretion.

Hurn v. Retirement Fund Trust, 648 F.2d

1252, 1254 (9th Cir. 1981).

Leave to amend "shall be freely given

when justice so requires." Fed. R. Civ.

P. 15(a). “The propriety of a motion for

leave to amend is generally determined by

“ BG ch tt A ee Se ALAN tn le? Ah S imi

In Winters and the subsequent case of Arizona v.

California, 373 U.S. 546 (1963), the Supreme Court held

that a reservation-of land to an Indian tribe may include by

implication rights of usage of adjacent waters to the extent

necessary to fulfill the purposes of the reservation. Winters,

207 U.S. at 576; Arizona, 373 U.S. at 599-600.

reference to several factors; (1) undue

delay; (2) bad faith; (3) futility of

amendment; and (4) prejudice to the

opposing party." Hurn, 648 F.2d at 1254.

See also Howey v. United States, 481 F.2d

1187, 1190 (9th Cir. 1973). The district

court relied solely upon the first of

these factors in denying the Tribe's

motion as untimely. However, "[djelay

alone does not provide sufficient grounds

for denying leave to amend ...." dHurn,

648 F.2d at 1254. The crucial factor is

not length of delay, but prejudice.

Howey, 481 F.2d at 1190. "Where there is

a lack of prejudice to the opposing party

and the amended complaint is obviously not

frivolous, or made as a dilatory maneuver

in bad faith, it is an abuse of discretion

"to deny leave to amend. Howey, 481 F.2d

at 1190-91.

SBN — ay tal Mi es lh CT Pe eR Nak a

i ANE ig Os PAPE BR te ate eee En te

ht Nia 00 Al. Ne hE ele sath)

59a

{9} The State urges us to decide on

the record before us that the State would

have been prejudiced if the amendment had

been permitted. If prejudice were readily

apparent from the record, we might decide

the issue without benefit of findings by

the district court. See, e@.g., Ascon

Properties, Inc. v. Mobil Oil Co., 866

F.2d 1149, 1160 (9th Cir. 1989). However,

the record in the present case does not

reflect what, if any, prejudice the State

and the PUD would suffer if the Tribe were

allowed to add its claim under Winters.

We therefore reverse the district court's

denial of the Tribe's motion for leave to

amend, and remand for the district court

to reconsider the motion. See United

States v. Webb, 655 F.2d 977, 980 (9th

Cir. 1981).

60a

Each party to bear its own costs on

appeal.

AFFIRMED in part, VACATED in part,

and REMANDED.

2a ets

es er eet ne evo oe

ee ee ee et eee

6la

No. 88-3617

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT COURT

UNITED STATES OF AMERICA AS TRUSTEE FOR

THE KALISPEL INDIAN TRIBE AND INDIVIDUAL

ALLOTTEES,

Plaintiff/Appellee,

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation,

Defendant,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-Intervenor-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

WASHINGTON

No. CV-80-116 RMB

APPELLANT PEND OREILLE COUNTY PUBLIC

UTILITY DISTRICT NO. 1'S PETITION TOR

REHEARING AND SUGGESTION FOR HEARING EN

BANC

62a

James P. McNally

410 Main Street

P.O. Box 258

Ione, WA 99139

5090/442-3424

Jerry K. Boyd

PAINE, HAMBLEN, COFFIN, BROOKE & MILLER

717 West Sprague Avenue,

Suite 1200

Spokane, WA 99204-0464

509/455-6000

Attorneys for Defendant/Appellant

Pend Oreille County Public Utility

District No. 1

63a

No.

88-3617

UNITED STATES COURT OF APPEALS

FOR THE NWINTH CIRCUIT COURT

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff/Appellee,

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation,

Defendant,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-Intervenor-Appellant.

D.C. No. CV-80-116-JLQ

Miata ta a»

64a

No. 88-3618

UNITED STATES OF AMERICA,

as trustee for the Kalispell Indian Tribe

and individual allottees,

Plaintiff-Appellee,

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation,

Defendant~-Appellant,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-Intervenor.

D.C. No. CV-80-116-JLQ

65a

No. 88-3619

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff-Appellant,

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation,

Defendant~-Appellee,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-Intervenor.

D.C. No. CV-80-116-JLQ

66a

No. 88-3669

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff,

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff-Appellant,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. i,

a municipal corporation,

Defendant-Appellee,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF- WASHINGTON,

Defendant-Intervenor-Appellant.

D.C. No. CV~-80-116-JLQ

67a

No. 88-3618

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA AS TRUSTEE

FOR THE KALISPEL INDIAN TRIBE

AND INDIVIDUAL ALLOTTEES,

Plaintiff/Appellee,

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff,

Vv.

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation,

Defendant/Appellant,

and

DEPARTMENT OF NATURAL RESOURCES, STATE OF

WASHINGTON

Defendant-Intervenor.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

WASHINGTON

No. CV-80-116 RMB

APPELLANT PEND OREILLE COUNTY PUBLIC

UTILITY

DISTRICT NO. 1's PETITION FOR REHEARING

AND SUGGESTION FOR HEARING EN BANC

James P. McNally

410 Main Street

P.O. Box 258

Ione, WA 99139

509/442-3424

Jerry K. Boyd

PAINE, HAMBLEN, COFFIN,

BROCKE & MILLER

717 West Sprague Avenue,

Suite 1200

Spokane, WA 99204-0464

509/455-6000

Attorneys for Defendant/Appellant

Pend Oreille County Public Utility

District Ne. 1

69a

TABLE OF CONTENTS

Page

I. STATEMENT OF ISSUES ON PETITION

FOR REHEARING... ..ccceccccccves

II. STATEMENT OF THE CASE...... cece

Zane Deen eeeeeeeeeeeectcocecces

ISSUE A. In the Slip Opinion,

did this Court's

three-judge panel err

in its determination

and application of

law relating to the

establishment of the

line of ordinary high

ISSUE B. Was the District

Court's finding that

the line of ordinary

high water was 2028

Clearly erroneous and

did this Court's

three-judge panel err

in affirming the

District Court's

finding of fact and

conclusion of law?...

ISSUE C. Did this court's

three-judge panel err

in failing to certify

the issue of the

determination of the

line of ordinary high

water to the

79a

Washington Supreme

Court or in refusing

to stay the panel's

decision pending the

outcome of a related

case now working its

way through the

Washington Supreme

COURET cs ccccccccsccece

IV. SUGGESTION FOR REHEARING EN

BRS 66 ehh eS oes OCS CEC SCO CES COC?

71la

TABLE OF AUTHORITIES

Case:

Austin v. Bellingham,

126 P. $9, 61 (1912) ccccccccccces

Howard v. Ingersoll,

54 U.S. (13 How.) 409 (1851).....

Martin v. Lessee of Waddell,

41 U.S. (16 Pet.) 366,

10 L.E@ 997 1011 (1842)... .ccccece

Montana v. United States,

—— eee eS ee

United States v. Holt

State Bank,

RS ee eee ee

United States v. Pend Oreille

Public Utility District

No. 1 of Pend Oreille County,

Dee Gs DMs a eee ersescccccccces

Utah Division of State Lands

v. United States,

8 Ee Serre

Welch v. Browning,

87 N.W. 430 (Iowa 1901)........ es

Other

4 Words and Phrases at 3290.....c.ee.2.

72a

Rules and Regulations

40 Fed.Reg., p. 31.321

(July 25, 2975S) cccccccccccccccccs

42 Fed.Reg., pp. 37,129 and 37,163

(July 19, 1977) wcccccccccccccccece

Constitutions, and State Statutes, Etc.

Articles of Cession, State

of GOOEGIM ec co ccc ccccerecesescscces

Wash. Const. Art. XVII, § ih ain 6-oe @-6

26 Stat., Proclamations 10..........

25 Stat., Ch. 180, Section 8...cccc-

Treatises

4 Words and Phrases at 3290......e.-.

73a

CERTIFICATE REQUIRED BY

CIRCUIT RULE 28-2.1

The undersigned counsel of record for

Pend Oreille Public Utility District No. 1

certifies that the following parties who

are in Washington State Supreme Court may

be interested parties in the outcome of

the line of ordinary high water determina-

tion. In No. 85-2--00128-8, the Pend

Oreille County Public Utility District

No. 1 filed a Complaint against the

defendants captioned "Complaint for

Declaratory Judgment re: Determination of

Line of Ordinary High water; Or, In the

Alternative Declaration Of Or Quiet Title

To AN Overflow Easement: Or In The

Alternative Petition In Condemnation."

After judgment was entered against the

State and the PUD based on collateral

74a

estoppel based upon the decision of the

United States District Court in this case,

the PUD and State appealed to the

Washington Supreme Court. The respondents

own property bordering the Pend Oreille

River in the vicinity of the Kalispel

Indian Reservation. In fact, respondents

own property known as Kalispel Indian

Allotment No. 83.

Interested parties are Tombari Family

Limited Partnership of Washington;

William A. Tombari, Margaret K. Tombari,

William A. Tombari, Jr. and Veronica M.

Tombari.

This representation is made to enable

judgment of the Court to evaluate possible

recusal.

Jerry K. Boyd

Attorney of Record for Pend

Oreille County Public Utility

District No. 1

75a

I. STATEMENT OF ISSUES ON PETITION FOR

REHEARING.

A. In the Slip Opinion, did this

Court's three-judge panel err in its

determination and application of law

relating to the establishment of the line

of ordinary high water?

B. Was the District Court's finding

that the line of ordinary high water was

2028 clearly erroneous and did this

Court's three-judge panel err in affirming

the District Court's finding of fact and

conclusion of law?

Cc. Did this court's three-judge panel

err in failing to certify the issue of the

determination of the line of ordinary high

water to the Washington Supreme Court or

in refusing to stay the panel's decision

pending the outcome of a related case now

working its way through the Washingtcn

Supreme Court?

76a

II. STATEMENT OF THE CASE.

The principal facts and the nature of

the case and claims made by the parties as

set forth in the Slip Opinion, pages 2483-

2485, are substantially correct. However,

there are some additional facts that are

noteworthy and are set forth hereafter.

The Pend Oreille River is a navigable

river. The State of Washington was

admitted on November 11, 1889, on an equal

footing with the original states by

presidential proclamation [26 Stat.,

Proclamations 10] pursuant to an Enabling

Act (25 Stat., Ch. 180], approved

February 22, 1889. Section 8 of said

Enabling Act authorized the people of the

Territory of Washington to hold a

constitutional convention of _ elected

representatives and to hold elections to

ratify a proposed constitution. Section 8

77a

of the Enabling Act further provided that

if the constitution was approved by the

majority of the electorate in the

Territory of Washington and if the

constitution was:

"republican in form, and if all the

provisions of this Act have been

complied with in the formation

thereof, it shall be the duty of the

President of the United States to

issue his proclamation announcing

the result of the election in each

(territory, including the Territory

of Washington), and thereupon the

proposed States shall have adopted

constitutions and formed _ State

government as herein provided shall

be deemed admitted by Congress into

the Union under and by virtue of

this Act on an equal footing with

the original: States from and after

the date of said proclamation."

The Constitution of the State of

Washington which was approved by the

people of the Territory of Washington

prior to the presidential proclamation on

November 11, 1889, contains Article XVII,

§ 1, which provides as follows:

78a

Declaration of state ownership.

The State of Washington asserts its

ownership to the beds and shores of

all navigable waters in the State up

to and including the line of

ordinary high tide, and waters where

the tide ebbs and flows, and up to

and including the line of ordinary

high water within the banks of all

navigable rivers and lakes...."

Finally, based upon the opinion of the

three-judge panel of this Court at Slip

Opinion, page 2486, reference is made to

Howard v. Ingersoll, 54 U.S. (13 How.) 409

(1851) .! Due to such citation and a

quotation taken therefrom, it is also

apparent that the hydrology of the Pend

Oreille River and other rivers in the

state of Washington may be significant.

There is a substantial difference in the

annual hydrolegical cycle of rivers in the

eastern and southern states as opposed to

the annual hydrological cycle of rivers

' 14 L. ed. 189 shows that Howard v. Ingersoll is

published at 54 U.S. (123 How.) 318 et seq.

et tile. ” a

Mitte vases pe ee ee ee, ee ee

79a

elsewhere in the United States and

particularly rivers in the state of

Washington and the Pend Oreille River in

the state of Washington. Howard v.

Ingersoll involved a dispute on a river

comprising the boundary between the state

of Georgia and the state of Alabama

wherein a river having a hydrological

cycle entirely different than the

hydrological cycle of the Pend Oreille

River. The Pend Oreille River, as most

other rivers in the western states, has an

annual natural hydrological cycle which

involves an annual rise in the spring of

each year to an ordinary high water and a

recession of the water to an ordinary low

water in the summer months.” In contrast

? Copies of hydrographs showing the flow of the Pend

Oreille River over time commencing in 1913 and ending in

1950 are attached as Exhibit 1 in the appendix. These

hydrographs are copies of plates 4 and 5 of the Project

80a

to the ordinary and predictable annual

cycle of the Pend Oreille River and other

western rivers, the rivers in the eastern

states and particularly those in the South

have a substantial different annual cycle.

In the eastern and southern states, the

rivers may rise at any time when a rain

event may occur at any time in the year.

These facts are well stated in the

Affidavit of Roland H. Binker, which was

filed in this matter and which was

submitted to the District Court. There is

no dispute on these facts.’

Planning Report-Box Canyon Power Project-Pend Oreille

River, which is Trial Exhibit No. 201. Plate 17 is a

discharge curve that shows the relation between flow and

elevation of the Cusick gage.

> A copy of the Affidavit of Roland H. Benker, an

hydrologist, and copies of some of the exhibits he sponsored

showing the hydrological cycles of various rivers is set forth

in Exhibit No. 2 of the Appendix.

III. ARGUMENT.

ISSUE A. In the Slip Opinion, did this

Court's three-judge pane! err

in its determination and

application of law relating

to the establishment of the

line of ordinary high water?

Early in the history of the United

States, the United States Supreme Court

stated as follows:

For when the Revolution took

place the people of each

State became themselves

sovereign; and in that

character hold the absolute

right to all of their

navigable waters and the

soils under them for their

own common use, subject only

to the rights since

surrendered by the Consti-

tution to the general

government.

Martin v. Lessee of Waddell, 41 U.S. (16

Pet.) 366, 410; 10 L.Ed 997 1011 (1842).

The Martin court went on to note that

under the law of England prior to the

Revolution, the king held that dominion

and property in navigable waters as a

82a

public trust for all of the people and

that such public trust rights included

fishing. Id. at 411, 10 L.Ed 1013. The

court further noted that the public had

such rights since the signing of the Magna

Charta. Id. at 412, 10 L.Ed 1013-14. The

court then noted that the benefit of such

common rights were carefully preserved for

the people; however, the court implied

that a colony, which later became a state,

may well have established a different

policy than that which applied to the King

of England. Id. at 412-413, 10 L.Ed 1014.

There, the court stated that

--- and there is nothing in the

charter before us indicating that a

different and opposite line of

policy was designed to be adopted in

that colony.

The point cf the foregoing discussion

is that it was one of the sovereign rights

of the original states, and under the

83a

equal footing doctrine is one of the

sovereign rights of the State of

Washington to decide, for itself, the

policy which the state will follow with

regard to navigable waters and the soils

under them. This appears to be contrary

to the opinion of the three-judge panel of

this Court in United States v. Pend

Oreille Public Utility District No. 1 of

Pend Oreille County, Slip Op. at 2486.

There, the court decided that federal and

state law are the same and therefore did

not resolve which law controls. However,

the court thereafter cited several federal

court cases which purportedly establish

federal law relating to the establishment

of the line of ordinary high water. The

PUD contends that the three-judge panel of

this Court has misconstrued Howard v.

Ingersoll, which is the foundation of the

84a

purported federal law relating to the line

of ordinary high water. Secondly, the PUD

contends that federal law relating to the

line of ordinary high water is irrelevant

since it is for each sovereign state to

establish such law as shown in Martin v.

Waddell.

The fact that the Ninth Circuit Court

misconstrued Howard v. Ingersoll is

apparent upon reading that case. Nowhere

in Howard v. Ingersoll does it appear that

the case dealt with a navigable river. In

addition, the issue in Howard v. Ingersoll

did not involve the establishment of a

line of ordinary high water, but rather

involved the establishment of a boundary

between the states oof Georgia and

Alabama.‘ Furthermore, Howard Vv.

* Howard v. Ingersoll, 54 U.S. (14 How.) 381, 397, 14

L.Ed. 189, 196 (1851).

Se STE ere eee oe

85a

Ingersoll did not involve the determi-

nation of the line of ordinary high water.

Rather, the case involved the construction

to be given to Articles of Cession dated

June 16, 1802, between the United States

and Georgia, by which Georgia ceded its

claim to a western portion of territory

which it claimed and by which Articles of

Cession the western boundary of Georgia

was established.’ Under the Articles of

Cession, the western boundary of Georgia,

which became the eastern boundary of

Alabama, was described as the “western

bank of the Chattahoochee River." Id.

Thus, the court in Howard v. Ingersoll was

not attempting to describe the line of

ordinary high water under circumstances

where the water has an annual hydrological

cycle, but was rather attempting to

* Id. at 413, 14 L.Ed. 203.

86a

construe what was meant by “western bank"

of the Chattahoochee River. In that

particular case, the court chose the bank

of the river in which the river was

located most of the time. Indeed, in

attempting to determine whether the high

western bank or the low western bank was

described in the Articles of Cession, the

court noted that the high western banks

"do not extend down to the water's edge at

ordinary low water." Id. at 414. Indeed,

in Howard v. Ingersoll, the most

significant discussion related to whether

the river stayed within the low western

banks most of the time and further noted

that the location of a mill at issue was

actually covered by water in ordinary high

water.

The three-judge panel of this Court has

selectively quoted (and unfortunately mis-

87a

cited) language from Howard v. Ingersoll.

Slip Op. at 2486°. In Howard v.

Ingersoll, the court was attempting to

determine the intent of the commissioners

who negotiated the Articles of Cession and

were not attempting to determine the line

of ordinary high water which establishes

the boundary line of the sovereign waters

and soils of navigable rivers which are

held by states in their sovereign

capacity.

Finally, the three-judge panel opinion

quotes language from Austin v. Bellinghan,

126 P. 59, 61 (1912), and states that the

Washington Supreme Court has adopted as

its rule for determining the line of

ordinary high water under the state

constitution the language selected from

° Based on the undersigned’s reference to 14 L.Ed. 204,

it appears that the quoted language came from 54 U.S. at pp.

415 and 416.

88a

Howard v. Ingersoll. Slip Op. at 2487.

The reason for the similarity in language

is apparent when the origin of such

language is traced. The language in

Austin v. Bellingham actually came from 4

Words and Phrases at 3290, which, in turn,

originated with Welch v. Browning, 87 N.W.

430 (Iowa 1901), which, in turn, related

hack to a misconstruction of Howard v.

Ingersoll. One should not be surprised if

language originating in an opinion is

cited or quoted that such language would

appear to be similar when cited or quoted.

The fact that such language appears in

Austin v. Bellingham does not support the

conodanien inet such language is not dicta

nor does such language support’ the

conclusion that when the Supreme Court of

the State of Washington has before it the

facts and evidence of this case, the

89a

Supreme Court will not carefully consider

such language in light of the evidence and

facts herein and will not overrule such

language when faced with such facts and

evidence.

ISSUE B. Was the District Court's

finding that the line of

ordinary high water was 2028

Clearly erroneous and did

this Court's three-judge

panel err in affirming the

District Court's finding of

fact and conclusion of law?

There is no basis in the record for the

establishment of elevation 2028 feet above

mean sea level as the line of ordinary

high water on the Pend Oreille River.

Indeed, the statement made by this Court

in its Slip Opinion is not supported by

the statements made in the same opinion.

This Court's conclusion appears to be

based upon one of two hydrological

computations. Slip Op. at 2488. The

hydrological computation referred to in

90a

this Court's Slip Opinion is that the

water is at or below elevation 2028

feet msl for three-quarters of the year.

So what? That determination is purely a

computation based on a flow duration

curve. Such a mathematical computation

based on a flow duration curve has never

been used or relevant to the issue of

determining the line of ordinary high

water. At one time, the Department of

Defense Corps of Engineers, attempted to

utilize the use of inundation for 25

percent of the time derived from a flow

duration curve to determine ordinary high

water mark. See 40 Fed.Reg., p. 31,321

(July 25, 1975). Such attempt by the

Corps of Engineers was esen abandoned by

the Corps of Engineers. 42 Fed.Reg. at

37,129 and 37,163 (July 19, 1977). Thus,

the 25 percent inundation rule was only

cate .

9la

used by the Corps of Engineers on an

interim basis for less than two years

before such rule was abandoned as being

inappropriate.

In its opinion the three-judge panel

stated that “witnesses testified that

prior to construction [of the Box Canyon

Dam}, hay was harvested, livestock was

pastured, and wild carrots and onions were

gathered on lands at and below the 2028

foot elevation." How does such statement

or conclusion support drawing a line at

2028? Indeed, it is without question that

vegetation, which cattle would eat, grew

below elevation 2028. In fact, vegetation

will grow down to the lowest level to

which the water recedes in the summer,

which in this case under. natural

conditions would be below elevation 2025.

The issue raised by the PUD in State is

92a

that there was no line in the vegetation

at 2028 and there was and is no evidence

to establish a line at elevation 2028.

A statement is made at Slip Opinion at

2489 that the District Court judge

visually inspected the riverbank and

observed partially submerged tree stumps

near elevation 2028 feet. As was stated

in oral argument, shown in the briefs and

record referred to in the PUD's brief, and

a fact which is not contested, at all

times when the District Court judge

observed the river, the water was many

feet above 2028. There was no possible

way for the court to observe any

vegetation at 2028. The court did note in

its findings that there were trunks of

unhealthy looking coyote and whiplash

willows with bases of which appeared "to

be at 2028 to 2032 elevation." The record

ee Cr ee

93a

before the district court established,

without doubt, that coyote and whiplash

willows grow down to and into the water at

the lowest level reached by the water

during the summer months. How can coyote

or whiplash willows mark ordinary high

water? Again, the PUD contends that the

three-judge panel of this Court has erred

in relying upon such evidence to support

the district court's finding of a line of

ordinary high water at 2028.

Finally, this Court cited, as evidence

to support the district court's 2028 foot

elevation portions of agreements between

the PUD and individual Indian allottees

for flowage easements. As stated by the

district court in its findings No. 39,

such flowage easements were obtained to

resolve and settle disputes between the

PUD and individual allottees and the

94a

Tribe. There is no evidence that the

state was involved with those settlement

nor is there any evidence that the State

of Washington had any knowledge or

information concerning such settlements.

Furthermore, there is no evidence that the

elevation of 2028 identified in such

settlement agreements constituted a line

of any sort in the vegetation. Elevation

2028 in the settlement agreements was a

settlement elevation, not an elevation for

a vegetation line. The use of the

settlement elevation of 2028 feet in the

settlement agreements by the Court is, in

actuality, an effort of this Court to

grasp a hock on which to hang its hat to

support the district court's finding of

elevation 2028 as being the line of

ordinary high water. In fact, a review of

the record shows that there is absolutely

95a

no evidence whatsoever anywhere in the

record to support the establishment of any

line of any kind in the soil or vegetation

at elevation 2028 feet.

ISSUE C. Did this court's three-judge

panel err in failing to

certify the issue of the

determination of the line of

ordinary high water to the

Washington Supreme Court or

in refusing to stay the

panel's decision pending the

outcome of a related case now

working its way through the

Washington Supreme Court?

A case is now pending before the

Supreme Court of the State of Washington

where the very same facts and evidence is

presented to the Supreme Court of the

State of Washington. That case is PUD v.

Tombari Family Limited Partnership,

Washington Supreme Court Docket No. 57239-

9. In the PUD v. Tombari case, the PUD

and the State of Washington have raised

the issue of the determination of the line

96a

of ordinary high water under article xVII,

§ 1, of the Constitution of Washington,

and, in their briefs, have argued that the

language quoted by this Court in the Slip

Opinion from Austin v. Bellingham is

dicta, and, if followed by the court,

means that the “line of ordinary high

water" identified in the Washington

Constitution is, in fact, the "line of

ordinary low water." The Washington

Supreme Court has retained that matter. A

copy of the Order of the Washington

Supreme Court is attached as Exhibit No. 3

in’ the Appendix. The undersigned

anticipates that the matter will be set

for oral argument before the Washington

Supreme Court in due course and a decision

on the determination of the line of

ordinary high water under the facts and

evidence in this case will be forthcoming.

duit:

cot ants i No ne ey

97a

Based upon the foregoing, it appears

prudent for this Court to stay the opinion

of the court pending the determination of

the Supreme Court of the State of

Washington in PUD v. Tombari. If the

opinion of this Court is allowed to stand,

it is very possible that the Washington

Supreme Court will overrule the dicta in

Austin v. Bellingham and may establish the

line of ordinary high water to be based

upon the annual rises that occur on the

Pend Oreille River or the change in

vegetation that results from such annual

‘rises. It will be unfortunate and a

miscarriage of justice if this Court

establishes one rule of law relating to

the establishment of the line of ordinary

high water which determines the boundary

of the waters and soils owned by the State

of Washington in its sovereign capacity,

98a

and the State of Washington, in such

sovereign capacity, establishes a

different line of ordinary high water.

Based on the holding in Martin v. Lessee

of Waddell, such a result would appear to

be a violation of the sovereign rights of

the state of Washington and clearly

inconsistent with the law applicable with

respect to the sovereign rights of states

dated to the adoption and approval of the

United States Constitution.

IV. SUGGESTION FOR REHEARING EN BANC.

The issues relating to the establish-

ment of the line of ordinary high water on

the navigable Pend Oreille River in the

State of Washington is of great public

importance for the State of Washington and

all of its people. That issue is now

pending before the Supreme Court of the

State of Washington in PUD v. Tombari,

a inal a te tr ‘aiaalas 4

oe A A ai ae alee

99a

Supreme Court Docket No. 57239-9. As

shown above, under the arguments for

Issue A, the issue of determining the law

of the State of Washington for the

establishment of the line of ordinary high

water under the Constitution of the State

of Washington, article XVII, § 1, is a

sovereign right belonging to the people of

the State of Washington and its courts,

and is a right that arises under the equal

footing doctrine described in Utah

Division of State Lands v. United States,

482 U.S. 193 (1987); Montana v. United

States, 450 U.S. 544 (1981); and United

States v. Holt State Bank, 270 U.S. 49

(1926). The sovereign rights of the

original states was well established in

Martin v. Lessee of Waddell, supra. The

PUD and state have previously urged this

Court to certify the issue of the

100a

determination of the line of ordinary high

water or to stay this Court's decision

pending the outcome of a related case.

Based upon this Court's conclusion with

respect to federal law and state law

applicable to the determination of the

line of ordinary high water, the three-

judge panel rejected the motions and

requests of the PUD and the State to

certify the issue to the state Supreme

Court or to stay its decision. As

previously stated, if the Washington State

Supreme Court overrules the 1912 dicta in

Austin v. Bellingham and rules that the

line of ordinary high water is to be based

upon the annual spring high water based

upon the evidence that is before this

Court, which evidence is also before the

state Supreme Court, the prejudice that

would result from allowing this Court's

sem ei atl ok lt

10l1a

opinion to become final without suhearine

or without rehearing on the issue of

certification to the state Supreme Court

or stay of this Court's opinion is

apparent. On the other hand, if rehearing

is granted on the issue of the determi-

nation of the line of ordinary high water

or if rehearing is granted and this Court

certifies such issue to the Washington

Supreme Court or stays this Court's

decision pending the outcome of the case

before the Washington State Supreme Court,

such prejudice will be avoided.

Based upon the foregoing, and the

significance of the issue of law to the

people of the State of Washington, the PUD

respectfully suggests that the issues

identified above be reheard and that such

rehearing be before this Court, en banc.

102a

Respectfully submitted this 20th day of

March, 1991.

PAINE, HAMBLEN, COFFIN, BROOKE

& MILLER

Jerry K. Boyd, WSBA #2099

Attorneys for Pend Oreille County

Public Utility District No. 1

103a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the

foregoing Petition for Rehearing and

Suggestion for Hearing En Banc was mailed,

postage prepaid, on the 20th day of March,

1991, to the following counsel of record:

Robert Dellwo

Attcrney at Law

250 Lincoln Bldg.

W. 818 Riverside Ave.

Spokane, WA 99201-0913

Elizabeth A. Peterson

Department of Justice

Land and Natural Resources

10th & Pennsylvania Avenues, N.W.

Washington, D.C. 20530

Earl A. Hicks

Assistant U.S. Attorney

P.O. Box 494

Spokane, WA 99210

104a

J. Lawrence Coniff

Assistant Attorney General

Seventh Floor MS: PB-72

Highways - License Building

Olympia, WA 98504-8071

Jerry K. Boyd

Paine, Hamblen, Coffin, Brooke &

Miller

1200 Washington Trust Financial

Center

Spokane, WA 99204

(509) 455-6000

105a

Docket Nos. 88-3617, 88-3618, 88-3619 and

88-3669

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ae al

UNITED STATES OF AMERICA/KALISPEL INDIAN

TRIBE,

Plaintiffs/Appellees

PEND OREILLE PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation

and

STATE OF WASHINGTON,

DEPARTMENT OF NATURAL RESOURCES,

Defendants/Appellants

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

WASHINGTON

HONORABLE RICHARD M. BILBY,

DISTRICT JUDGE

STATE'S PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC

1096a

J. LAWRENCE CONIFF

Senior Counsel

Assistant Attorney General

Attorney for Appellant

State of Washington,

Department of Natural Resources

7th Floor Highways-Licenses Bldg.

12th & Franklin, MS: PB-71

Olympia, Washington 98504

(206) 586-0729

107a

Pursuant to FRAP 40 the Department of

Natural Resources, State of Washington

petitions for rehearing and requests a

stay of the Court's opinion until

resolution of the state law issue relating

to location of the ordinary high water

line (OHWL) by the Washington Supreme

Court. Alternatively, the State requests

that the matter be reheard by the Court en

banc.

The undersigned counsel is also counsel

for the State in an appeal presently

pending in the Washington Supreme Court

entitled Public Utility District No. 1 of

Pend Oreille County and State of

Washington v. Tombari Family Limited

Partnership. et al., docket number 57239-

9. The state litigation involves the

108a

location of OHWL on the Pend Oreille River

on a former allotment in the Kalispel

Indian Reservation now held in fee by a

non-Indian (Tombari). The following issues

are presented for review to the Supreme

Court of Washington:

"3.

Should the prior Federal District

Court determination of the

riverward boundary of the Kalispel

Indian Reservation preclude

litigation of the riverward

boundary of Tombari's property in

state court?"

Should the prior Federal District

Court interpretation of Art. 17, §

1 of our state constitution

(presently on appeal to the Ninth

Circuit Court of Appeals) be given

preclusive effect in a subsequent

state court proceeding?"

Did the trial court err by

agreeing with the Federal District

Court's interpretation of state

law which was based upon a literal

application of a portion of this

Court's opinion in Austin v.

Bellingham, 69 Wash. 677 (1912)?"

(State's Opening Brief in Tombari appeal,

Pp.

3.)

109a

Counsel has been informed that the

Supreme Court has retained jurisdiction

over the Tombari appeal, has entered an

order extending the time allotted for oral

argument and will set the matter for oral

argument during Spring Term, 1991.~

II.

SUPREME COURT'S DECISION IN THE

TOMBARI APPEAL

The trial court concluded and this

Court agrees that state law is both

applicable and controlling regarding the

location of the line of ordinary high

water.' The definitive construction and

interpretation of state law is that which

is given it by the highest court of the

state. This rule has been directly

' The trial court’s conclusion was based on Oregon v.

Corvalis, Sand & Gravel Co., 429 U.S. 363 (1977). No

party to this appeal assigned error to this conclusion of law.

110a

applied in a case which involved Art. 17,

S 1 of Washington's Constitution:

- »« « Whether a conveyance made by

the state of land abutting upon

navigable water does confer upon

grantee any right or interest in

those waters or in the land under

the sand is a matter wholly of local

law. Shively v. Bowlby, 152 U.S. 1,

38 L. Ed. 331, 14 Sup.St.Rep. 548.

Upon such questions the provisions

of the state constitution and the

statutes of the state, and the

decisions of its highest court are

accer*“ed by us as conclusive.

Port of Seattle v. Oregon & Washington Ry.

Co., 255 U.S S86, 63, 65 LL. BG. $00

(1921).

This Court focused on Austin v. City of’

Bellingham and defined the line of

ordinary high water as "soil which is

submerged so long or so frequently, in

ordinary seasons, that vegetation will not

grow on it." (Slip Opinion at p. 2487).

This Court further observed that the

question is what Washington law is now as

lila

opposed to what it "may become." (Slip, p.

2488, fn. 3). If, as all parties agree,

state law controls the resolution of this

issue, the applicability of the Austin

decision is at stake here. If the

Washington Supreme Court in the pending

Tombari appeal agrees with the arguments

presented by the State regarding the

interpretation and applicability of the

Austin Sseision, then this Court's opinion

will have been wrongly decided.? If, on

the other hand, the Washington Supreme

Court issues an opinion which is

consistent with this Court's view of state

? The Austin decision did not consider or address Art.

17, § 1, Constitution of Washington. The constitutional

assertion of the State’s title to the “bed and shores” of

navigable rivers is not satisfied by Austin which limits the

State’s ownership to the river bed. Moreover, the facts of

Austin deal with lakeshore property and differ substantially

from those which obtain along the shores of a navigable river

such as the Pend Oreille. See: State’s Opening Brief Phase I,

pp. 17-19 and pp. 28-31.

112a

law and the Austin decision, then it can

simply be issued without change. Thus, an

opportunity is available for this Court to

avoid possible error as to tne state law

issue. Our point here is that the outcome

of this appeal should not be determined by

the passage of time (i.e., the chronology

of this matter versus the chronology of

Tombari). The applicability of Austin and

of Art. 17, § 1 of Washington's Consti-

tution are fundamental questions which

will be addressed b, the Washington

Supreme Court during Spring Term, 1991 in

the Tombari appeal.

The Kalispel Tribe has participated at

the state appellate level by filing a

brief amicus curiae expressing its views

on the state law issues (i.e., OHWL

location) in the Tombari matter.

113a

Withdrawal of the opinion under the

conditions indicated would not subject any

party to harm or prejudice. Our

recommendation avoids the unpleasant and

possibly embarrassing prospect of a

conflict between federal and state courts

on a significant state law issue occurring

almost simultaneourly or within a limited

time frame.

IIt.

The boundary between State owned beds

and shores of navigable rivers is

described in Art. 17, § 1, Constitution of

Washington as ". . . up to and including

the line of ordinary high water within the

banks of all navigable rivers .. .."

Section 1 has been held to have the effect

of vesting in the State the entire and

exclusive ownership of the beds and shores

1l4a

of navigable waters. New Whatcom v.

Fairhaven Land Co., 24 Wash. 493, 501, 644

P. 735 (1901). This Court's opinion relied

upon the 1912 Austin opinion. Unfortu-

nately, Austin does not interpret Art. 17,

§ 1 and thus cannot provide a basis to

determine the boundary of the State's

ownership to the beds and shores of the

Pend Oreille River. The language used in

Art. 17, § 1 is “ordinary high water" and

“ordinary high tide" to describe the

landward boundary of the State's ownership

of the beds and shores of navigable bodies

of both fresh and salt water. One must

assume that the intention of the framers

of the state constitution was to describe

comparable water levels as boundaries.

There is no evidence available which would

support a contrary inference. The State's

position, based upon this constitutional

~ WW 0b Ot site Se

115a

provision, is and always has been that the

described line is to be located along

navigable rivers by reference to the line

of upland vegetation. The State has

applied this rule and asserted title and

actively managed both shorelands and

tidelands based on the upland vegetation

line as the landward boundary of its

property. This administrative practice is

consistent with the test adopted by the

state court which established upland

vegetation as the boundary line for

tidelands. See Harkins v. Del Pozzi, 50

Wn.2d 237, 310 P.2d 532 (1957) .?

Under the equal footing doctrine, the

State acquired title to the beds and

> The Harkins vegetational test has been overruled and

the term “ordinary high tide” now means the average of all

high tides over a seventeen year lunar cycle. See Hughes v.

State, 67 Wn.2d 799, 811, 410 P.2d 20 (1966); reversed on

other grounds, Hughes v. Washington, 389 U.S. 290 (1967).

116a

shores of all navigable waters within its

borders upon admission with the Union. Its

Constitution described the boundaries of

the lands conveyed. The “ordinary high"

language of Art. 17, § 1 can only have

meaning if one has reference to the high

flows of a river. The question posed is:

How high does the river ordinarily rise?

It makes no sense to exclude the very

period when high annual flows occur (i.e.,

spring run-off). (Slip, p. 2488). Neither

does the average of the high flows of a

river result in establishment of a line of

extraordinary high water or suggest flood

flows as a boundary. Given the similarity

and meaning between the terms "ordinary

high tide" and “ordinary high water" as

used in Washington's Constitution, there

is no sound reason to apply the passage

from Words and Phrases quoted in the

117a

Austin opinion to this controversy. The

State was not a party to Austin and, as

previously stated, the constitutional

assertion of the State's title to

shorelands was not raised or decided in

1912 by the state court.

Also, this Court's affirmance of the

location of OHWL at 2028 is in error. The

Court's reliance upon ‘the PUD flowage

easements (slip, p. 2489) is improper

because the State was not a party to such

easements. The State's shore!and property

boundary cannot be established by

unilateral declarations by the PUD in

easements conveyed to third parties.

There is no record basis for the

statement that "visual inspection by the

district court judge revealed partially

submerged tree stumps near the 2028

level." (Slip, p. 2489). The Pend Oreille

118a

River flow was well above 2028 on the day

the district court judge made a visual

inspection of the shoreline. It was

physically impossible for the judge to

have observed partially submerged tree

stumps near the 2028 level for this reason

and for the additional reason that none

exist at elevation 2028 anywhere along the

shores of the Pend Oreille River adjacent

to the Kalispel Indian Reservation. (Slip,

p. 2489).

There is no evidence in the record to

support the existence of any distinctive

line of vegetation visible at 2028.

According to the testimony of local

farmers, native wild grasses along the

shoreline were cut as hay down to 2022.

According to the field surveys conducted

by qualified botanists along the shores,

there is a continuum of wetland vegetation

119a

from the line of upland vegetation (2041)

down to the water's edge consisting of

rhizome grasses. No identifiable or

distinct line of different vegetation was

located at 2028. (See: R. Vol. 5, p. 98;

Affidavit of Dr. Carr, p. 16 at CR 202 and

Exhibit 218). The trial court's findings

of fact numbers 18, 19 and 20 were clearly

erroneous and must be set aside. There is

nothing in the record to support a

distinctive line of vegetation at 2028 or

anywhere else along the shores of the Pend

Oreille River between the line of upland

vegetation (2041) and the line of ordinary

low water (2022) which occurs) during

periods of low flows in late summer and

fall.

We, as a final reason for reconsid-

eration of this matter en banc, believe

that this Court erred in remanding this

120a

matter for the trial court to reconsider

the Kalispel Tribe's motion for leave to

amend to add a new cause of action. As

pointed out in the State's Answering

Brief, Phase II at pp. 28-30, the Tribe

waited five years after filing its

complaint to seek to amend their complaint

in this fashion. The proposed amendment

occurred after discovery had been

completed (in accordance with a schedule

established by the trial court) and

approximately two weeks before Phase III

(damages) portion of the trial was

~ scheduled to begin. Under these

circumstances, there is both unreasonable

delay and prejudice shown to the State

because of the cut-off of discovery. This

matter should not be remanded to the trial

court.

121la

Art. 17, is » F Constitution of

Washington declares the State's ownership

of both the beds and the shores of all

navigable waters to the line of ordinary

high water or ordinary high tide. If this

Court's ruling that OHWL along the Pend

Oreille River is “scepted as a correct

statement of state law, this would mean

that the State's ownership would extend to

the line of average annual water along the

shores of the Pend Oreille River (2028).

Average water cannot mean "ordinary high"

water as that term is used in Art. 17, §

1. Such a result would be inconsistent

with the well established rules regarding

the location of OHWL along salt water

tidelands. Adoption of this rule to

tidelands would mean their boundary is at

122a

mean sea level rather than ordinary high

tide per the Hughes decision. There is no

semantic or logical reason for such a

distinction based upon the similar

boundary descriptions used in Art. 17, §

1. The long’ standing administrative

assertion of the State's ownership of

shorelands along navigable rivers would

also be overturned and title would be

unsettled as to many, many acres of

valuable wetlands.

An issue of major public importance is

here presented. There is no question but

that the Washington Supreme Court is the

only court which can decide this issue

with finality. Under these circumstances,

the proper course of action is to stay the

opinion pending resolution of this issue

by the Washington Supreme Court in the

pending Tombari appeal.

a Oe Oe

he nana

123a

Alternatively, we submit that there is

no factual basis in the record to support

the location of the line of ordinary high

water at 2028 for the reasons previously

stated and this matter should,

accordingly, be reconsidered by the Court

en banc.

Dated this 20th day of March, 1991.

Respectfully submitted,

KENNETH O. EIKENBERRY

Attorney General

J. LAWRENCE CONIFF

Senior Counsel

Assistant Attorney General

Highways-Licenses Building

Olympia, WA 98504

(206) 586-0729

WSBN 1989

124a

Nos. 88-3617, 88-3618, 88-3619, 88-3669

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA/

KALISPEL INDIAN TRIBE,

Plaintiffs/Appellees,

PEND OREILLE PUBLIC UTILITY

DISTRICT NO. 1, a municipal

corporation

and

STATE OF WASHINGTON,

DEPARTMENT OF NATURAL RESOURCES,

Defendants/Appellants.

125a

I certify that I caused two copies of

the State of Washington's Petition for

Rehearing with Suggestion of Rehearing En

Banc together with this Certificate to be

served upon all counsel of record by this

day depositing said documents in the

United States mail, first-class postage

prepaid, addressed to each attorney as

follows:

Robert D. Dellwo or

Brian H. Collins

Dellwo, Rudolf & Schroeder, P.S.

West 818 Riverside Avenue

250 Lincoln Building

Spokane, WA 99201

Elizabeth Peterson

Attorney at Law

U.S. Department of Justice

Land & Natural Resources Division

10th and Pennsylvania Ave., N.W.

Washington, D.C. 20530

James P. McNally

Attorney at Law

P.O. Box 258

Ione, WA 99139

Jerry K. Boyd

Attorney at Law

1200 Washington Trust Financial Center

Spokane, WA 99204

DATED this 20th day of March, 1991.

J. LA CE CONIFF

Senior Counsel

Assistant Attorney General

Attorney for the

State of Washington

7th Floor Highways-Licenses Bldg.

12th & Franklin, MS: PB-71

Olympia, WA 98504

(206) 586-0729

127a

Nos. 88-3617, 88-3618, 88-3619, 88-3669

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, as trustee for

the Kalispel Indian Tribe and individual

allottees,

Plaintiff-Appellee,

and

KALISPEL INDIAN TRIBE,

Intervening-Plaintiff,

PEND OREILLE PUBLIC UTILITY DISTRICT

NO. 1,

a municipal corporation,

Defendant~-Appellant,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-Intervenor.

D.C. NO. CV-80-116-JLQ

ORDER

128a

Before: BROWNING, SCHROEDER and

FLETCHER, Circuit Judges

The pane) has voted to deny the

petitions for rehearing and to reject the

suggestions for rehearing en banc.

The full court has been advised of the

suggestions for rehearing en banc and no

active judge has requested a vote on

whether to rehear the matters en banc.

Fed. R. App. P. 35(b).

The petitions for rehearing are denied

and the suggestions for rehearing en banc

are rejected.

Jerry K. Boyd, Esq.

PAINE, HAMBLEN, COFFIN, BROOKE & MILLER

1200 Washington Trust Financial Center

Spokane, WA 99204

i29a

No. 88-3617

AMENDED

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff - Appellee a

and

KALISPEL INDIAN TRIBE,

Intervening - Plaintiff

PEND OREILLE PUBLIC UTILITY DISTRICT

NO. 1, a municipal corporation,

Defendant

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-intervenor - Appellant

No. 88-3618

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff - Appellee

and

130a

KALISPEL INDIAN TRIBE,

Intervening - Plaintiff

-Vs~-

PEND OREILLE PUBLIC UTILITY DISTRICT

NO. 1, a municipal corporation,

Defendant - Appellant

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-intervenor

No. 88-3619

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff - Appellant

and

KALISPEL INDIAN TRIBE,

Intervening - Plaintiff

PEND OREILLE PUBLIC UTILITY DISTRICT

NO. 1, a municipal corporation,

Defendant - Appellee

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-intervenor

i3la

No. 88-3669

UNITED STATES OF AMERICA,

as trustee for the Kalispel Indian Tribe

and individual allottees,

Plaintiff

and

KALISPEL INDIAN TRIBE,

Intervening Plaintiff - Appellant

PEND OREILLE PUBLIC UTILITY DISTRICT

NO. 1, a municipal corporation,

Defendant - Appellee

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-intervenor - Appellee

132a

APPEAL FROM the United States District

Court for the Eastern District of

Washington (Spokane).

THIS CAUSE came on to be heard on the

Transcript of the Record from the United

States District Court for the Eastern

District of Washington (Spokane) and was

duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court,

that the judgment of the said District

Court in this cause be, and hereby is

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED, with respect to Phases I and II.

Filed and entered March 6, 1991

133a

No. 88-3617

(Together With 88-3618, 88-3619

and 88-3669)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

as Trustee for the Kalispell Indian Tribe

and individual allottees,

Plaintiff/Appellee,

and

KALISPEL INDIAN TRIBE,

Intervening-Plaintiff/Appellee,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation,

Defendant-Appellant,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-Intervenor/Appellant.

DC# C-80-116-JLQ[RMB]

EASTERN DISTRICT OF WASHINGTON (SPOKANE)

MOTION FOR RECALL OF MANDATE AND FOR

RECALL OF ENTRY OF JUDGMENT

134a

Public Utility District No. 1 of Pend

Oreille County ("PUD") is the Appellant in

Docket No. 88-3618 in the above-entitled

matter. The State of Washington is the

Appellant in Docket No. 88-3617, the

United States is the Appellant in Docket

No. 88-3619, and the Kalispel Indian Tribe

is the Appellant in Docket No. 88-3669.

In its appeal, the PUD raised several

issues, including issues concerning the

line of ordinary high water (which was

briefed and argued as part of Phase I) and

raised issues concerning pre-judgment

interest on the award of damages and

issues concerning dismissal of the PUD's

condemnation action. The issues concern-

ing pre-judgment interest and the conden-

nation action have not been scheduled for

briefing, argument or decision by this

Court for the reasons set out below.

135a

NINTH CIRCUIT HAS ONLY RENDERED

A DECISION ON A PART OF

THE APPEALS BEFORE IT.

All of the parties appealed to the

Ninth Circuit Court of Appeals concerning

the decisions of the Honorable Richard M.

Bilby in Cause No. CV-80-116-JLQ[RMB]}. In

the early stages of the appeal, the appeal

was bifurcated by various orders of the

conference attorney. Copies of the

relevant Orders are attached for

reference. As the three-judge panel

stated in its Opinion, only a portion of

the case was briefed and decided. United

States v. Pend Oreille Public Utility

District No. 1, 926 F.2d 1502, 1505

(1991). As is noted in the Opinion, the

Court determined issues concerning the

line of ordinary high water, ownership of

the river bed by the State, and the

Tribe's Motion to amend its Complaint.

136a

This Court stated (id. at 1505) that

"the issues raised in Phase III are the

subject of a separate appeal.” Unfortu-

nately, this was error. What actually

occurred is that the issues outlined above

were decided by the Court as "Phase 1 and

Phase 2" and all of the remaining issues

which were raised in the same appeals were

_left for determination at a later time in

"Phase 3."

The reason for the bifurcation was

obvious and agreed by the parties. In

essence, the line of bifurcation was

generally between liability and damages,

with slight discrepancies. It was obvious

if the District Court was reversed on

either the issue of line of ordinary high

water or the issue of ownership of the

river bed, such result would have a

substantial impact upon the remaining

137a

issues. Now that this Court has affirmed

the District Court on those issues, the

remaining issues which were neither

briefed nor argued before this Ninth

Circuit Court of Appeals should now be

scheduled for briefing and argument to

decide the remainder of the case.

MOTION AND REQUESTED ACTION

MOTION

The PUD moves the Court to recall its

mandate and to recall its judgment. The

Court, through the Deputy Clerk, issued a

Mandate dated June 19, 1991, wherein the

Clerk noted that the original Mandate was

amended to show issuance for Phases I and

II only. A copy of the Amended Clerk's

Mandate is attached. In addition, a copy

of an Amended Clerk's Mandate received by

the U.S. District Court for the Eastern

District of Washington is attached. On

eee

138a

behalf of the PUD, the undersigned is

uncertain and unclear concerning the

status of this case. Under Supreme Court

Rule 13.1, and Rule 13.4, parties may file

a petition for a writ of certiorari within

90 days after the entry of a judgment of

the United States Court of Appeals. The

entry of a judgment, under these circun-

stances, is deemed to be from the date of

the denial of a petition for rehearing.

In this case, an opinion and decision has

been rendered on only a part of the

appeal. From the actions of this Court,

it appears that a judgment has been

entered even though the judgment is only

on a part of the appeal.

REQUESTED ACTION:

The PUD requests the Court to withdraw

its Mandate and to recall its judgment on

the part of the appeals on which it has

139a

ruled pending the outcome of the remainder

of the appeals. Such result may probably

be accomplished by the entry of an order

recalling or staying mandate and recalling

or staying judgment pending the completion

of the remainder of the appeals before the

Ninth Circuit Court of Appeals. If a stay

of the mandate and judgment is not

entered, it is q.ite possible that, out of

precaution, the parties may be required to

prepare and submit multiple petitions for

writs of certiorari in order to avoid

prejudice pending the outcome of the

remainder of the appeals. The undersigned

respectfully urges the Court to stay the

mandate and judgment which has apparently

been entered in the above-entitled matter

pending the briefing, argument and

decision of the remaining issues. in

appeals 88-3617, 88-3618, 88-3619 and 88-

140a

3669, all of which arose out of the

decisions of the United States District

Court for the Eastern District of

Washington under Docket No. CV-80-116-

JLQ(RMB).

DATED this __ day of » 1991.

PAINE, HAMBLEN, COFFIN, BROOKE

& MILLER

Jerry K. Boyd, WSBA #02099

Attorneys for Pend Oreille

Public Utility District No. 1

14la

CERTIFICATE OF SERVICE BY MAIL

I HEREBY CERTIFY that on the day

of July, 1991, I placed a copy of the

foregoing Motion for Recall of Mandate and

For Recall of Entry of Judgment in the

United States mail, first-class postage

prepaid, to the following counsel of

record:

Robert Dellwo

Attorney at Law

250 Lincoln Bldg.

W. 818 Riverside Ave.

Spokane, WA 99201-0913

Elizabeth A. Peterson

Department of Justice

Land and Natural Resources

10th & Pennsylvania Avenues, N.W.

Washington, D.C. 20530

Earl A. Hicks

Assistant U.S. Attorney

P.O. Box 494

Spokane, WA 99210

mat

142a

J. Lawrence Coniff

Assistant Attorney General

Seventh Floor MS: PB-72

Highways - License Building

Olympia, WA 98504-8071

Jerry K. Boyd

Attorneys for Pend Oreille

County Public Utility

District No. 1

143a

No. 88-3617

(Together with 88-3618, 88-3619 and 88-

3669)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

as Trustee for the Kalispel Indian Tribe

and individual allottees,

Intervening-Plaintiff/Appellee,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1,

a municipal corporation,

Defendant~-Appellant,

and

DEPARTMENT OF NATURAL RESOURCES,

STATE OF WASHINGTON,

Defendant-Intervenor/Appellant.

DC# C-80-116-JLQ (RMB)

EASTERN DISTRICT OF WASHINGTON (SPOKANE)

STATE'S RESPONSE TO MOTION FOR RECALL OF

ENTRY OF JUDGMENT

144a

The Department of Natural Resources,

State of Washington (DNR) is the appellant

in docket number 88-3617. DNR was,

therefore, an appellant before this Court

regarding the issue concerning the line of

ordinary high water (Phase I) and was

respondent before this Court for purposes

of the Kalispel Tribe's aboriginal title

and de facto reservation claims to the

river bed (Phase II). The damages issues

resolved by the trial court (Phase III)

were reserved for determination by this

Court at a later time. Therefore, DNR

agrees with the request made by the PUD to

recall the Court's mandate and judgment in

order to render a complete judgment on all

issues pending in this consolidated

appeal.

DNR is not a “target defendant" for

purposes of the United States' and

145a

Kalispel Tribe's claims for monetary

damages. However, DNR most strenuously

objects to the characterization of the

Tribe's water right claim as “Phase IV" of

this proceeding. This Court ruled (slip

opinion pp,. 2498-99) that the district

court's denial of the Tribe's motion for

leave to amend to add a Winters water

right claim should be remanded for its

reconsideration. No matter how the trial

court resolves this issue, it does not

affect the posture of this appeal. The

Phase III damages issue relating to the

twin claims of ordinary high water and

aboriginal title has been resolved by the

trial court, remains pending before this

Court, and is ripe for decision. The fact

that a belated and unrelated Winters water

right claim may be acted upon by the trial

court in a manner favorable to the Tribe

146a

(by bringing the matter on for trial) does

not provide a basis for denial of the

PUD's motion for recall.

DNR, respectfully suggests that this

Court stay the mandate and judgment

pending the briefing, argument and

decision of the remaining Phase III issues

in docket numbers 88-3617, 88-3618, 88-

3619, and 88-3699 (consolidated).

DATED this 19th day of July, 1991.

KENNETH 0. EIKENBERRY

Attorney General

J. LAWRENCE CONIFF

Senior Counsel, WSBA # 1989

Assistant Attorney General

Attorneys for Department of

Natural Resources,

State of Washington

(206) 586-0729

147a

I HEREBY CERTIFY that on the i9th day

of July, 1991, I placed a coy of the

foregoing State's Response to Motion for

Recall of Entry of Judgment in the United

Sates mail, first-class postage prepaid,

to the following counsel of record:

Robert Dellwo

Attorney at Law

250 Lincoln Bldg.

W. 818 Riverside Ave.

Spokane, WA 99201-0913

Elizabeth A. Peterson

Department of Justice

Land and Natural Resources

10th & Pennsylvania Avenues, N.W.

Washington, D.C. 205390

Earl A. Hicks

Assistant U.S. Attorney

P.O. Box 494

Spokane, WA 99210

Jerry K. Boyd

Attorney at Law

Paine, Hamblen, Coffin, Brooke

& Miller

Washington Trust Financial Center,

Ste. 1200

717 West Sprague Avenue

Srokane, WA 99204-0484

J. LAWRENCE CONIFF

Senior Counsel, WSBA # 1989

Assistant Attorney General

Attorneys for Department of

Natural Resources,

of Washington

(206) 586-0729

State

149a

No. C-80-116

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA,

Plaintiff,

and

KALISPEL INDIAN TRIBE,

Plaintiff-Intervenor,

PEND OREILLE COUNTY PUBLIC UTILITY

DISTRICT NO. 1, a municipal

corporation,

Defendant,

and

DEPARTMENT OF NATURAL RESOURCES,

State of Washington,

Defendant-Intervenor.

150a

1. This civil action was brought by

the United States as trustee for the

Kalispel Indian Tribe and Individual

Kalispel Indian Allottees holding the

beneficial interest in land along the

banks of the Pend Oreille River.

Plaintiffs seek damages from the Pend

Oreille County Public Utility District

No. 1 for unlawful trespass in the form of

back water and erosion caused by the

construction and maintenance of the Box

Canyon Dan.

2. Three issues are before the

Court at this time for determination:

A. The ordinary high water line of

the Pend Oreille River as it passes

through the Kalispel Indian

Reservation;

B. The amount and cause of any

erosion that has occurred on

15la

Reservation land as a result of the

operation of Box Canyon Dam; and

C. The effect of certain flowage

easements.

Two issues have been reserved for later

determination:

1. The amount of damages, if any,

found to have resulted from erosion

caused by the Box Canyon Dam, and

2. Adjudication of the Kalispel

Indian Tribe's claim of aboriginal

title to the riverbed up to the

ordinary high water line.

Parties, Jurisdiction and Venue

3. The United States, the original

plaintiff, brought this action as trustee

for the Kalispel Tribe of Indians and

individual members of the tribe who hold

beneficial interests in the allotted lands

on the Kalispel Indian Reservation. Pend

Oreille County Public Utility District

No. 1 (PUD) is a municipal corporation

operating in the State of Washington. Its

district includes all of Pend Oreille

) |

152a

County. The Kalispel Indian Tribe

(Tribe), plaintiff intervenor, is a Tribe

of Indians living on the Kalispel

Reservation. The Reservation contains

several forty acre allotments situated on

a ten mile stretch bordering the Pend

Oreille River, in the Northeast portion of

the State of Washington. The state of

Washington, defendant intervenor, manages

the public lands of the state through its

Department of Natural Resources.

4. All of the acts complained of

occurred in Pend Oreille County,

Washington, and all of the parties reside

in the State of Washington. MThis court

has jurisdiction pursuant to 28 U.S.C.

§1345.

Historical Background

5. The state of Washington was

admitted to the Union on November 11,

153a

1889. The Kalispel Indian Reservation was

established by Executive Order on

March 23, 1911. The individual allotments

on the Reservation, except as specified

below, were approved by the Secretary of

the Interior on July 6, 1925 and

January 23, 1933. Trust patents for

allotments 99, 104, 107, and 108 were

subsequently granted to individual

Indians.

6. In the 1950's the defendant PUD

constructed a hydroelectrical project on

the Pend Oreille River downstream from the

Reservation known as the Box Canyon Dam

(Dam) which commenced operation in 1955.

The Pend Oreille River is and was at all

relevant times a navigable waterway.

(Admitted Facts No. 1). No trees were cut

down along the Reservation during the

construction of the Dan.

| 154a

| 7. Albeni Falls Project is a Corps

of Engineers dam upstream (south) from the

| Kalispel Indian Reservation.

Determination of Ordinary High Water Line

BACKGROUND

8. The banks of the Pend Oreille

River consist of clay. sand and silt and,

in some areas, gravel. A majority

(approximately 70%) of thn lineal feet) of

the banks along the Kalispel Indian

Reservation are relatively steep and have

sloughed or have been eroded away from

time to time. The remainder of the

reservation that borders on the river is

comprised of sloughs, some gradually

sloping areas and hummocks. (Admitted

Facts No. 2).

9. There are substantial and long

standing hydrological reports of the flow

of the Pend Oreille River from Newport,

155a

Washington, in Pend Oreille County, to the

point where the Pend Oreille River crosses

the Canadian border. These records extend

over a period of time of approximately 40

years prior to the construction of the Box

Canyon Dam and extend tc the time of

trial. Such records are a reliable

indication of the flow and water surface

elevations of the Pend Oreille River

through the years and at various times of

the year. (Admitted Facts No. 3).

10. The Box Canyon Dam does not

affect the water surface elevation of the

Pend Oreille River when the river is

flowing at approximately 90,000 cubic feet

per second (c.f.s.) and is at an elevation

of approximately 2041 above mean sea level

as measured by the Cusick water gage.

(Admitted Facts No. 4).

156a

11. Approximately one-half of the

total annual flow of the Pend Oreille

River occurs during the two or three

months of high water in the spring of the

year. The other one-half occurs during

the remaining 9 or 10 months of the year.

(Admitted Facts No. 13).

12. Below Cusick gage elevation

2035, Box Canyon Dam has a substantial

effect upon the water surface elevation

and time during which the water surface is

above what would have occurred under

natural conditions. (Admitted Facts No.

14).

13. Water is held higher now in the

Cusick vicinity during the low flow times

that it was before the Box Canyon Dan.

(Admitted Facts No. 17).

14. This higher elevation of low

water has resulted in various islands,

157a

upon which edible grass grew, being

submerged permanently.

15. The river falls approximately

one-third of a foot for each mile it

passes through the Reservation.

Therefore, a reading of elevation 2041 at

the Cusick gage (mile 70.09) would

translate (assuming identical water flow)

into readings of 2041.6 two miles upstream

(south) and 2040.4 two miles downstream

(north).

VEGETATION

16. Varying types of vegetation

abound by the Reservation. Rough grass

starts in the lowest elevation and

progresses upwards to willows, black

cottonwoods, red tip hay, and finally

conifers and timothy hay.

17. Both by on the scene inspection

(by foot and aboard a boat) and review of

158a

photographic exhibits, the Court has

observed evidence of two distinctive lines

on the terrain. (Exh. 29-36, 38, 39, 46

L-O)

Elevation 2028

18. The first line appears at

approximately 2028 and represents the

dividing line between any edible

vegetation and no vegetation, (water in

most cases). The vegetation at the lower

level consists of grass edible by cattle.

This grass has some minimal nourishment

value for range cattle. It is not good

enough for dairy cattle who produce more

milk when fed on the timothy hay which is

grown at higher levels. At the lower

level there are also small numbers of

coyote and whiplash willows. These

species are primarily visible in the steep

bank areas. (Exh. 35, 36). There are

159a

occasional black cottonwoods (generally at

the approximate elevation of 2037-2038),

but this specie primarily appeared above

the 2041 elevation.

19. The existence of the edible

grass down to the 2028 elevation was

supported by the testimony of various

credible Indian and non-Indian witnesses

who had lived in the area prior to 1955.

No agricultural (tilling or cultivating)

of the soil took place below the 2041

elevation. There are several small

islands in the river in the area of the

reservation on which wild grasses grow.

One island with a peak elevation of

approximately 2031 used to be a source of

wild carrots and onions for the Indians.

It has been covered by water since the

160a

Dam. There are no other sources of wild

carrots or onions on the Reservation land.

Elevation 2041

20. The second distinctive line is

at elevation 2041. It is evidenced by two

different factors.

A) In the gradually sloping areas

(30% of the banks) there is a change

in vegetation from rough grass to a

grass containing more nourishment and

the appearance of bushes similar to

those circled in red by the Court on

Exhibit 36.

B) In the steep bank areas (70%) of

the line appears at or near the top

of the river bank. (Exh. 30, 33).

Below the line appear a few rather

unhealthy looking coyote and whiplash

willows and miscellaneous weeds. In

several areas many of the whiplash

161a

willows are partially covered by

water. The base of their trunks

appear to be at the 2028 to 2032

elevation. Most of these willows

have sustained serious, if not fatal,

damage from beavers. Throughout the

area there was evidence of serious

and repeated instances of beaver

damage both below (willows) and above

(log pole pine) elevation 2041. The

distinction between the steep banks

and the gradually sloping areas is

depicted in Exhibit 23. The areas

circled by the Court in red are the

steep banks and those in green the

gradually sloping areas, (with grass

below the 2041 elevation). In

Exhibit T-2, part Z, an old

photograph taken on the Reservation

in early 1920's or ‘30's the

162a

distinction between the elevations is

also apparent.

MATHEMATICAL CALCULATIONS

21. When the flow of water in the

river is 90,000 c.f.s. the elevation at

the Cusick gage will be 2041. MThis was

true before and after the construction of

the Albeni Falls Dam south of the

Reservation and the Box Canyon Dam north

of the Reservation.

22. For each reduction of 5000

c.f.s. the water elevation at the Cusick

gage will drop approximately one foot

(Exh. 20) e.g., a 60,000 c.f.s. flow

results in a water elevation of 2035 and a

30,000 c.f.s. flow, an elevation of 2029.

23. By calculation, both the mean

and median high water lines after 1955

were approximately 2041. This calculation

based on Exhibits 49A and 232 uses only

163a

the highest point of flow during the high

water season, (May-June spring snow melt

and runoff). No consideration is given to

the number of days the water remains at

the highest water point or what the water

elevation levels are during the rest of

the year. (This calculation by

defendant's expert was in accordance with

Corps of Engineer standards for Lake

Michigan.)

24. Plaintiff's expert made his

determination of 2028 to 2029 prior to

1955 by selecting that elevation where the

water exceeds the elevation 25% of the

time each year. This was the standard

used by the Corps of Engineers until 1977

when it was abandoned.

25. Another of defendant's experts,

Mr. Sewell, made his determination by

doing a backwater profile based upon the

164a

various elevations produced by the water

flows (c.f.s.). He too claimed the

ordinary high water line (OHWL) to be

2041.

EROSION

26. Erosion occurred along the banks

of the Pend Oreille River in the vicinity

of the Kalispel Indian Reservation before

and after the construction of the Box

Canyon Dan.

27. Some of the forces that cause

erosion and sloughing of the river banks

at issue include:

(A) Saturation of the soil during

annual high waters;

(B) Saturation of the soil by

precipitation and surface water

runoff;

high water;

165a

(D) Freezing and thawing of the

banks;

(E) Characteristics of the soil;

(F) Tractive force of flowing waters

of the river;

(G) The affect of gravity;

(H) Cattle tramping and other animal

activity along the banks;

(I) Construction activities of man.

28. Presently, along the Kalispel

Indian Reservation, there is a relatively

stable beach along the shore of the Pend

Oreille River between elevations 2031 and

2034.

29. Presently, the normal water

surface elevation at Cusick for the

operation of Box Canyon Dam after the end

of the high water flows is between

elevation 2031 and 2033 at the Cusick

Gage.

ii if in _— a Ball ae Be ee a i ie, ee a od i a ee - L * . -S

166a

30. The Box Canyon Project causes

water to back up through Box Canyon to the

Albeni Falls Project, during low water

flows.

31. Evidence along the banks of the

river support both parties' contentions as

to the cause of erosion. Plaintiff

claimed it resulted from below due to wind

and wave action on the bank during the

higher low water levels (now 2030-34).

Defendants contend it occurred from above

as a result of flood waters and freezing

conditions during the winter and spring.

32. Both Mr. Weatherly's survey and

the photometric studies of Mr. DeGross

contained varying margins of + errors.

However, the failure of plaintiffs to

offer sufficient evidence to contradict

Mr. DeGross' estimates of horizontal

changes in the river results in a failure

167a

to carry the burden of proof on this

issue. Although Mr. Weatherly's survey

may constitute some evidence on this

point, it was not taken at the same places

as the prior Corps of Engineers survey.

Also the prior survey was done for

hydrolic purposes not bank erosion and

thus is subject to more than normal +

errors. The Court therefore finds that

there has not been increased erosion at

the bank of the river along the Kalispel

Reservation subsequent to 1955.

FLOWAGE EASEMENTS

33. In 1956, the State of Washington

granted the PUD the right to overflow the

bed and shores of the Pend Oreille River

up to the ordinary high water line (OHWL).

34. Certain "flowage easements" were

obtained in 1955 by the District from

certain individuals allottees and the

168a

Kalispel Tribe on the Kalispel Indian

Reservation. ;

35. The allottees and the Tribe were

paid valuable consideration for the

flowage easements.

36. Individual allottees and the

Kalispel Tribe granted warranty easements

to the PUD, approved by the Secretary of

the Interior, for a period of 50 years on

March 4, 1955 for portions of the

following described lands:

Allotment T-105-(now tribal) SW 1/4

NW 1/4, Sec. 17 and Lot 6, Sec. 18

T33N, R44 EWM, Wash.

Allotment T-18 (now tribal in part)

NW 1/4 NW 1/4, Sec. 17; and Lot 1,

Sec. 18, T33N, R44 EWM, Wash.

Allotment 30 - SE 1/4 SW 1/4, Sec. 8,

T33N, R44 EWM, Wash.

Allotment 83 - Lot 3 and 4, Sec. 8,

T33N, R44 EWM, Wash.

Lot 6 of Sec. 6 and Lot 5, SW 1/4 NW

1/4 and NE 1/4 SW 1/4 of Sec. 5,

T33N, R44 EWM, Wash.

169a

37. The easements described above

provide as follows:

"During the haying season which

is approximately July 1 to

September 15th of each year,

whenever Albeni Falls Dam is

releasing not more than 20,000

cfs of water, Box Canyon Dam

gates will be operated so that

the level of the water at the

Cusick gaging station will not

exceed elevation 2028 feet above

mean sea level, United States

Coat and Geodetic Survey Datum

(1947 adjustment)."

38. In the late 1960's a decision

was made to operate the Box Canyon Dam

with two feet of backwater, thus raising

the water elevation along the Reservation

during low water periods (9-10 months).

These warranty easements which provided

that water elevation would not exceed 2035

were obtained for valuable consideration

from various members of the tribe and

allottees.

170a

39. The easements obtained to avoid

further litigation, evidenced the

knowledge of the PUD that landowners along

the river were using the land above 2028

and subsequently 2035 for cattle grazing

purposes.

CONCLUSIONS OF LAW

Re This Court has jurisdiction

under 28 U.S.C. §1345, and the Eastern

District of Washington is the proper

venue.

2. The Court has previously ruled

(June 21, 1983) that plaintiffs had the

burden of proof and the law of the state

of Washington controls this case.

3. The pre-1955 OHWL was elevation

2028 at the Cusick gage.

4. The post-1955 OHWL is elevation

2034 at the Cusick gage.

171a

Ss. Because of the six foot increase

in the OHWL due to the construction of Box

Canyon Dam, the plaintiffs have lost the

ability to graze livestock on the lands

inundated by the new elevation. They are

therefore entitled to recover damages for

such trespass to the extent they have not

executed flowage easements to the

defendant PUD.

6. Any judgment for costs shall

abide the final outcome of this case.

OPINION

The Court has determined the OHWL by

following the language of the Washington

Supreme Court in Austin v. Bellingham, 69

Wash. 676, 126 P. 59 (1912):

High water mark does not mean

the height reached by unusual floods,

for these usually soon disappear.

Neither does it mean the line

ordinarily reached by the great

annual rises of the river, which

cover in places lands that are

valuable for agricultural purposes,

172a

nor yet does it mean meadow land

adjacent to the river, which, when

the waters leave it, is adapted to

and can be used for grazing or

pasturing purposes. The line, the,

which fixes the high water mark is

that which separates what properly

belongs to the river bed from that

which belongs to the riparian owner--

that is, the owner of adjoining land,

Soil which is submerged so long or so

frequently, in ordinary seasons, that

vegetation will not grow on it, may

be regarded as a part of the bed of

the river which overflows it.

There is no doubt in the Court's mind that

pre-1955 the tribe members grazed and

pastured their livestock down to the 2028

Cusick gage elevation. Subsequent to 1955

the waters covered those areas up to

elevation 2034 and made them unsuitable

for grazing.

Under Austin even though the land

between elevation 2028 and 2034 was

covered with water during the spring run

off they were indeed: —

meadow land adjacent to the river,

which, when the waters leave it, is

173a

adapted to and can be used for

grazing or pasturing purposes.

Austin at 681.

The state of Washington's request

that the Court adopt a mean high water

line (mathematical calculation) is not

supported by the case law. Furthermore,

the statute, Wash; Rev. Code Section

90.58.030, was not adopted until 1971,

some 16 years after the construction of

the Box Canyon Dan.

The mathematical certainty of using

the mean high water level appeals to the

Court's sense of precision and finality,

but it does not comport with the

Washington decision.

The parties may immediately commence

discovery on the damage issue. The damage

issue will track the same schedule as the

Court has previously set for the issue of

aboriginal title.

DATED: August 26, 1983.

Richard M. Bilby

United States District Judge

\12836\00006\128.APP

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