Opposition Brief — Washington Department of Natural Resources v. United States

Supreme Court, U.S.

¥F IL ED

OCT 4 199!

No.

Supreme Court of the 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.

ON PETITION FOR WRIT OF CERTIORARI

TO UNITED STATES COURT OF APPEALS

FOR THE NINTH JUDICIAL CIRCUIT

KALISPEL INDIAN TRIBE'S BRIEF

IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

Allen H. Sanders*/Jeffrey S. Schuster

EVERGREEN LEGAL SERVICES

NATIVE AMERICAN PROJECT

101 Yesler Way, Suite #301

Seattle, WA 98104

(206) 464-0838

Robert Dellwo

DELLWO, ROBERTS & SCANLON

818 Riverside Ave., Suite 250

Spokane, WA 99201-0913

(509) 624-4291

*Counsel of Record <BCD Legal Pracers. Sesttle. Weshanguen

QUESTIONS PRESENTED

1. Did the federal courts below reasonably

construe Washington State law in locating

the ordinary high water line of the Pend

Oreille River along riparian lands of the

Kalispel Indian Reservation?

2. Did the federal courts reasonably

decide to rely on the Washington State

Supreme Court's definition of ordinary

high water line in Austin v. City of

Bellingham rather than await petitioners'

attempt to relitigate the definition ina

related state court case?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......2.. . i

STATEMENT OF THE CASE ....... -~ 1

SUMMARY OF ARGUMENT .......2. s 6

REASONS FOR DENYING THE WRIT ... . 9

A. No Showing Has Been Made That The

Court Of Appeals’ Construction Of

State Law Was Unreasonable Or Clearly

WEGNE « 2 os « % Me SS we ts 9

B. The Issue Is Not One Of Special

SWPOETOANCO . «+ «© © © we ee ee 16

COMGAMEUN 0tlcthlcthlc tl tlt leh Chl ee ee 24

iii

TABLE OF AUTHORITIES

Cases

Alabama v. Georgia, 64 U.S. (23 How.) 505,

515 (1859) > . > . > . . . > . - . . o saa

Austin v. City of Bellingham, 69 Wash.

677, 126 P. 59 (1912) ... i, 1, 4-6, 8,

12-16, 21

Bishop v. Wood, 426 U.S. 341, 96 S.Ct.

2074, 48 L.Ed 2d 684 (1976). . .10, 11, 16

Borough of Ford City v. United States, 345

F. 2d 645, (3d Cir.), cert. denied, 382

I ee ee ee ee

California, ex rel. State Lands Com'n v.

U.S., 457 U.S. 273, 102 S.Ct. 2432, 73

EE See ee > |

City of Houston v. Hill, 482 U.S. 451, 107

S.Ct. 2502, 96 L.Ed.2d 398 (1987)... .16

Haring v. Prosise, 462 U.S. 306, 103 S.Ct.

2369, 76 L.Ed 2d 595 (1983). ......9

Harrison v. Fite, 148 F. 781 (8th Cir.

DCPS °C. 5 5 6 6 «§ 0 6 6 tle e 23

Howard v. Ingersoll, 54 U.S. (23 How.)

380, 14 L.Ed 189 (1851)... ... «22, 24

In re Elliott, 74 Wash. 2d 600, 446 P.2da

EES anes,

Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct.

mane we some 426 (1923). . - © © © © © ofa

iv

TABLE OF AUTHORITIES - continued

Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct.

477, S82 beB@. 645 (2943). «© « «© «© @« « « 40

Propper v. Clark, 337 U.S. 472, 69 S.Ct.

1333, 93 L.Ed. 1480 (1949). ..... . 10

PUD No. 1 of Pend Oreille County and State

of Washington v. Tombari Family Limited

Partnership, et al., Pend Oreille Superior

Court No. 85-2-00128-8 (filed November 4,

TS. ws sc TOSS 2 ewe ae ee,

The Tungas v. Skovgaard, 358 U.S. 588, 79

§.Ct. 503, 3 LEG. 24 524 (1959)... .- 10

United States v. Claridge, 416 F.2d 933,

CO a SO. GS ar oS oo ww wo

United States v. Durham Lumber Co., 363

U.S. 522, &§.Ct. 1282, 4 L.Ed 2d 1371

(1960). 7 . +. . © . . o * _ « . _ . . 7 9

U.S. v. Pend Oreille County Public Utility

District No. 1, 926 F.2d 1502 (9th Cir.

apeay ¢@ © © © © » 6 ee Sp Oe, 28, 16, Za

Welch v. Browning, 115 Iowa 690, 87 N.W.

430. . — . + o . 7 . . c ° . .- ~ . -14, 15

onstitutiona ovisions

Washington Constitution, Article XVII,

Oe ee ee ee ae ae ee ee

TABLE OF AUTHORITIES - continued

Statutes, Rules

Rule 19(a), (b) of the 1970 Revised Rules

of the United States Supreme Court . 11

Rule 10, of the United States Supreme

oy ne a ee oe 2 oe ee a ee a ee 8

es ee | | a |

ee Dems “6 «6: & = «2s ee ee eee

Other Sources

Felix S.Cohen's Handbook of Federal Indian

De, (awee Geet. ore CS SS ee Se 6 ea

1

STATEMENT OF THE CASE

The Joint Petition mischaracterizes

the federal court rulings and omits

significant facts. Both the court of

appeals and federal district court

interpreted Washington case law as

defining ordinary high water to exclude

lands useable for grazing or other

agricultural pursuits from riverbed. They

arrived at this conclusion after analyzing

the Washington State Supreme Court's

opinion in Austin v. City of Bellingham,

69 Wash. 677, 126 P. 59 (1912), which sets

forth criteria to be used in locating an

ordinary high water line. The court of

appeals found these criteria no different

than those used in federal common law.

U.S. v. Pend Oreille Public Utility

District No. 1, 926 F.2d 1502, 1505 (9th

Cir. 1991), Appendix To Joint Petition For

Writ of Certiorari (hereafter, "J.A.")

2

28a-32a, 171a-173a. It did not hold that

federal law was controlling but explicitly

stated it was unnecessary to decide which

law controlled, since the Washington

Supreme Court had defined ordinary high

water in the same way as the federal

courts. 926 F.2d at 1506, J.A. 28a.

The court of appeals concluded that

"(tjhe determinative factual issue ... was

whether, prior to construction of the

[petitioner PUD's Box Canyon] dam, the

lands between the elevations of 2028 and

2041 feet, though subject to seasonal

flooding, were nonetheless useful for

agricultural or grazing purposes..." 926

F.2d at 1506, J.A. 33a. The appeals court

determined that the district court's

findings on this issue were well supported

by the record. Id.

With "no doubt in the Court's mind,"

the federal district court had found that,

ee

3

prior to construction and operation of the

Box Canyon Dam in 1955, Kalispell tribal

members grazed and pastured their

livestock along the Pend Oreille River,

down to the 2028 foot elevation line.

J.A. 172a. There also was evidence of hay

harvesting at this level and gathering of

wild carrots and onions. 926 F.2d at 1506,

J.A. 33a. In referencing the PUD flowage

easements, petitioners failed to mention

the express provisions which prohibit

exceeding the 2028 elevation "[d]Juring

haying season". J.A. 167a-169a. The

flowage easements were considered by the

district court to evidence the petitioner

PUD's knowledge of cattle grazing by the

riparian landowners well below the 2041

elevation mark petitioners contended

should be the ordinary high water line.

J.A. 170a.

The district court found that prior

er

to construction and operation of the Box

4

Canyon Dam in 1955, the line of ordinary

high water was at 2028 feet above mean sea

level, as measured at the Cusick gage. |

926 F.2d at 1505, J.A. 26a, 157a, 170a.

The dam caused these lands to be submerged |

up to elevation 2034. J.A. 172a. When the |

United States sued the PUD on behalf of

the Kalispels, claiming a trespass, the

petitioners took the position that those

areas between the 2028 and 2041 elevations

were always riverbed, since they were

subject to a spring overflow up to

elevation 2041.

Petitioners' definition of ordinary

high water would place the line at

elevation 2041, the median elevation of

the spring high water. Joint Petition at

12. This definition would relieve the PUD

of any obligation to the Kalispels for

flooding up to that level. 926 F.2d at

S

1505, J.A. 27a. The courts below, relying

on Austin v. City of Bellinghan,

determined that, under Washington law, the

annual spring rise in the river must be

excluded from the ordinary high water line

calculation. Excluding the annual spring

rise, they iocated the riverbed boundary

based on "the highest level normally

reached by the river each year." 926 F.2d

at 1505, J.A. 28a.

Both the courts below decided that

certification to the Washington Supreme

Court was unnecessary and inappropriate.

Citing Austin, the court of appeals held

that the state supreme cdurt had already

ruled, and that its ruling was

unambiguous. 926 F.2d at 1506 n.3, J.A.

3la-32a, n.3. It also decided it would be

inappropriate to stay the federal court

proceedings while petitioners sought to

convince the state supreme court to change

6

the definition of ordinary high water, in

a separate action they had filed in state

court. Id.

As discussed below, petitioners have

not demonstrated that the federal court

construction of the applicable state rule

is clearly wrong. Nor have they provided

any sufficient reason as to why that

construction should be reviewed.

SUMMARY OF ARGUMENT

Petitioners maintain that riparian

lands used for agriculture or grazing

should be considered part of the riverbed

if they are overflowed part of each year.

According to their definition of ordinary

high water, the boundary of riparian lands

should be set at the average of the

highest water which occurs during the few

months of spring runoff, rather than being

| 7

based on the levels normally occurring

nine to ten months of the year. They cite

no state or federal court decision taking

that approach. Instead, after the federal

district court ruled on the ordinary high

water line issue, petitioners filed a

separate lawsuit in state court to

relitigate it as to a non-Indian riparian

land owner of a former allotment within

the Kalispel Indian Reservation. PUD No. 1

ej ount State of

Washington v. Tombari Family Limited

Partnership, et al., Pend Oreille Superior

Court No. 85-2-00128-8 (filed November 4,

1985).

The state trial court held the

petitioners barred by collateral estoppel,

but now they rely on the hope that the

Washington Supreme Court will adopt their

ordinary high water definition. The

federal courts construed the existing law

8

of the state supreme court on ordinary

high water lines, based on the criteria

set forth in Austin v. City of Bellingham.

That case, like cases in other |

jurisdictions, clearly protects the |

riparian landowners' interest in lands |

subject to relatively short periods of

flooding but still useful during most of

the year for agricultural and/or grazing

uses. Petitioners have not pointed to any

contrary case law, or shown that the

construction of existing law was

unreasonable.

Nor does the petition raise an issue

of special importance. To the contrary,

the result petitioners seek would upset a

long-standing rule of property ownership

and, when applied to the facts of this |

case, would impede one of the federal |

government's purposes in setting aside an

Indian reservation, i.e., to provide an

9

opportunity for Indians to support

themselves not only by hunting and fishing

but also by farming, grazing, and other

less traditional pursuits.

REASONS- FOR DENYING THE WRIT

A. No Showing Has Been Made That The

Court Of Appeals’ Construction Of State

Law Was Unreasonable Or Clearly Wrong

No exceptional circumstances exist

for this Court to depart from its practice

of leaving the determination of questions

of state law to the intermediate federal!

courts. See, Haring v. Prosise, 462 U.S.

306, 314 n. 8, 103 S.Ct. 2369, 2373 n.8,

76 L.Ed 2d 595 (1983) ("It is our practice

to accept a reasonable construction of

state law by the Court of Appeals....

standing alone, a challenge to state law

determinations by the Court of Appeals

will rarely constitute an appropriate

subject of this Court's review"). The

Court has stated the exceptions in various

10

ways. See e.g., United States v. Durham

Lumber Co., 363 U.S. 522, 526-527, S.Ct.

1282, 1284-1285, 4 L.Ed 2d 1371 (1960)

(construction "clearly erroneous"); The

Tungas v. Skovgaard, 358 U.S. 588, 596, 79

S.Ct. 503, 508, 5 L.Ed. 2d 524 (1959)

("clearly wrong"); Propper v. Clark, 337

U.S. 472, 486-487, 69 S.Ct. 1333, 1340-

1341, 93 L.Ed. 1480 (1949)

("unreasonable"); Palmer v. Hoffman, 318

U.S. 109, 118, 63 S.Ct. 477, 482, 87 L.Ed.

645 (1943) ("plain error"). The principle

reflects a belief that the district courts

and courts of appeal are more familiar

with and better able to interpret the laws

of their respective states. Bishop v.

Wood, 426 U.S. 341, 344-347, n.10, 96

S.Ct. 2074, 2078 n.10, 48 L.Ed 2d 684

(1976). Particularly where both the

district and appellate courts have reached

the same conclusion, an independent -

11

examination by the Supreme Court has been

denied. Id.

In Bishop, the Court refused to

reexamine the state law interpretation

where the lower federal courts had reached

the same conclusion, the interpretation

was "tenable," and it had "some support"

in a decision of the state supreme court.

Id. at 347. The Court's long-standing

preference for allowing the lower federal

courts to resolve state law issues is

reflected in the fact that the Supreme

Court Rules no longer list conflicts

between federal court interpretations and

applicable state law as a ground for

certiorari. Compare, Rule 19(a), (b) of

the Revised Rules of 1970 and Rule 10.

Petitioners' grievance is not

premised on what the current law of the

Washington State Supreme Court is but on

what they hope it will be if they prevail

12

in their appeal in the Tombari lawsuit.

They argued below that the ordinary high

_water line should be set at the highest

level reached by the stream each year,

including the annual spring flood, |

averaged over a period of years. 926 F.2d

at 1505, J.A. 27a-28a. Petitioners

contended that a riverbed must encompass

land useable for pasture or other

agricultural pursuits if that land is

subject to spring flooding. Both the court

of appeals and district court rejected

that argument as contrary to the

Washington State Supreme Court's decision

in Austin v. City of Bellingham. 926 F.2d

at 1506, J.A. 30a-32a, 171a. Petitioners

acknowledge that this state supreme court

decision is the “only decision of the

Supreme Court of the State of Washington

which deals in any significant way with a

description of the line of ordinary high

as eeaeaeeeenamneannianeanitineniane

13

water on fresh water." Joint Petition at

34. However, they assert, without

explanation, that the rationale of that

case does not apply to these facts and the

language relied upon is dicta. Id at

34,36. That is incorrect.

hae ite dealt with a claim by a

lakefront property owner that a city dam

had raised the water level and thereby

flooded part of his land, rendering it

incapable of cultivation and improvement.

69 Wash. at 678. The Washington Supreme

Court held that the property boundary was

the line of ordinary high water and

announced the rules to be followed in

determining either a "high water mark" or

“ordinary high water" line. It quoted with

approval the following definition:

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

14

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 bec 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

3%.

Id. at 681 (quoting 4 Words and Phrases,

p. 3290, which cited, Welch v. Browning,

115 Iowa 690, 87 N.W. 430, a case

involving a boundary along the Mississippi

River). The Washington Supreme Court then

emphasized that the line of ordinary high

water is not the highest water that may be

proved. Id. Other case law the court

relied upon also included situations

TD

15

involving rivers. The court drew no

distinction between lakes and streams as

to applicability of the definition of

ordinary high water, which it quoted. Id,

at 679-680.

Petitioners claim, without citation

to any specific evidence or authority,

that the rulings here makes the boundary

the line of ordinary low water. Joint

Petition, at 33-34. However, in excluding

the annual spring rise of the river, the

lower federal courts followed precedent

and gave meaning to the phrase, "ordinary

high." See, United States v. Claridge, 416

F. 2d 933, 934 (9th Cir. 1969).

Petitioners have not cited one case,

state or federal, holding that the

ordinary high water line should be defined

based only on annual spring highs and

without regard to the agricultural and

grazing usefulness of the affected lands.

16

The courts below properly applied Austin’.

Even if the state supreme court had

never addressed the meaning of ordinary

high water line, a lower federal court may

properly determine the state law criteria.

This Court has deferred to such

interpretations so long as they appear

reasonable. Bishop 426 U.S. at 345-346, n.

10.

B. The Issue Is Not One Of Special

Importance

Although petitioners claim that

whether ordinary high water lies at

elevation 2028 or 2041 is of tremendous

public importance and interest, they do

. The courts also reasonably

exercised their discretion to deny

pet *ioners' request for certification to

the state supreme court or stay, pending a

decision in Tombari. 926 F.2d at 1506 n.3,

J.A. at 32a, n.3, [relying on City of

Houston v. Hill, 482 U.S. 451, 470-71, 107

S.Ct. 2502, 2514, 96 L.Ed.2d 398 (1987);

In re Elliott, 74 Wash. 2d 600, 446 P.2d

347, 358 (1968)}.

eee

17

not offer any specific explanation and

example of how this particular ruling has

such a profound impact. While petitioners

make many general references to the equal

footing doctrine and state sovereign

interests in navigable rivers, the Court

is not being asked to decide whether the

State of Washington or the Kalispel Indian

Tribe owns the bed of the Pend Oreille

River where it flows along uplands of the

Kalispel Indian Reservation. Both the

district court and court of appeals ruled

that the riverbed belongs to the State;

and the Tribe is not filing a cross

petition challenging that holding. Nor is

there any dispute that the boundary of the

State's riverbed ownership is at the line

of ordinary high water, as announced in

the Washington Constitution, Article XVII,

Section 1. What the Court is being asked

to review is a federal court determination

NN i a

18

of the meaning of ordinary high water,

under state law. |

The specific dispute is whether the |

federal court should have set the ordinary

high water line at the highest mean annual

water elevation, reached in the annual

spring rises, or whether it properly

excluded from riverbed areas where cattle

could be pastured or other agricultural

pursuits engaged in for most of the year.

Prior to construction of the Box Canyon

Dam, the lands above elevation 2028 were

submerged only during the spring rises. No

evidence has been pointed to of state or

general public dependence on the lands

above elevation 2028. On the other hand,

the Kalispels used this area as their

property for grazing and hay production.

Petitioners argue that "any decision

which affects the interests of a state in

the navigable waters and soils under them

19

is a matter of great public interest and

import to the people of the State." Joint

Petition at 31. Innumerable cases affect

such state interests in some respect. For

example, a wide array of disputes can

arise over the meaning of terms which

control the applicability of state

regulatory laws, such as Washington State

laws governing hydraulic projects below

the ordinary high water line, pursuant to

RCW 75.20.100, and laws regulating

projects in the "shorelines", pursuant to

RCW 90.58. According to petitioners' 4

position, anyone who challenges whether

the site of his activity is within the

ordinary high water line or shoreline

raises an issue of such great importance

that this Court should ultimately decide

$¢.

Nor have petitioners shown any

justification for the claim that a

ey

20

"substantial likelihood" exists that there

will be a conflict between the ruling

below and the Washington State Supreme |

Court's disposition of the Tombari case.

See, Joint Petition at 25. To the

contrary, the trial court in that action

refused to reach the merits on the basis

of collateral estoppel, and the state

supreme court could certainly affirm that

decision.

Nor is there any need for this Court

to decide whether federal or state law

controls the determination of ordinary

high water in this context. Petitioners

wrongly claim that the court of appeals

concluded federal law controls. Joint

Petition at 37. To the contrary, the court

of appeals expressly stated, "Federal and

state law are the same on the definitional

issue determinative of Phase 1 and we

therefore need not resolve which

21

controls." 926 F.2d at 1505, J.A. 28a.

Both the district court and court of

appeals relied on state law, which

petitioners claim must be determinative.

The federal cases, cited by the court of

appeals, served to underscore that Austin

is consistent with ordinary high water

definitions in other jurisdictions, as

well as to show why it was unnecessary to

decide which law controls. \?

?/ Even if the state supreme court

were to change the ordinary high water

rules announced in Austin and petitioners

were able to reopen the ordinary high

water line issue in this case, the result

could be the same. While Austin's

compatibility with federal case law made

it unnecessary to decide whether federal

or state law controls, a new state supreme

court definition of ordinary high water

could require addressing that question.

Respondent Kalispel Indian Tribe does not

agree that state law necessarily controls,

since the boundaries of Indian reservation

land held in trust by the United States

are involved, as well as unique federal

interests in protecting the agricultural

and grazing value of that land. See,

e el. Sta ands Com'n v.

ela, 457 UG. 273, 278-284, 102 §.Ct.

22

As to the federal case law cited by

the court of appeals, the petitioners

again charge that the court misapplied it

to the facts of this case; and, again,

they fail to cite any case, federal or

state, which relies on the ordinary high

water line test they espouse.

The new definition of ordinary high

water sought by the petitioners would

create a conflict with federal law. In

1923, this Court excluded "extraordinary

freshets of the winter or spring" from the

measure of a riverbed. Oklahoma v. Texas,

260 U.S. 606, 631, 43 S.Ct. 221, 67 L.Ed

428 (1923). See also, Alabama v. Georgia,

64 U.S. (23 How.) 505, 515 16 L.Ed. 556

(1859). Quoting from Howard v. Ingersoll,

54 U.S. (23 How.) 380, 14 L.Ed 189 (1851),

2432, 2435-2439, 73 L.Ed.2d 1 (1982); *

Felix S.Cohen's Handbook of Federal Indian

Law, (1982 ed.), pp. 580-581 and n. 10.

23

the Third Circuit treated as above the

ordinary high water line, lands "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." Borough of Ford City

v. Uni tates, 345 F.2d 645, 648 (3d

Cir.), cert. denied, 382 U.S. 902 (1965).

The -Eighth Circuit has similarly defined

the ordinary high water line as the line

below which the soil is so usually covered

that no vegetation grows and its value for

agricultural purposes is destroyed.

Harrison v. Fite, 148 F. 781 (8th Cir.

1906). Under petitioners' theory, any

riparian landowners who have used land

subject to annual flooding for agriculture

or grazing would have been mistaken in

assuming that it was part of their

property. If the state or municipality

chooses to inundate those lands

24

permanently, the landowner would not be

entitled to any compensation. As this

Court observed in Howard v. Ingersoll, the

ordinary high water line definition arises

from "the popular sense" of the terms

"bank" and "river". 54 U.S. at 415. The

definition conforms to natural

expectations of where the riverbed ends

and upland property begins.

CONCLUSION

To hold, as the federal courts did here,

that an ordinary high water line may not

be based on the highest flows which occur

during a brief period of the year, and to

exclude from riverbed those lands useable

for agriculture or grazing, is not

unreasonable or clearly wrong. The court

of appeals' ruling is grounded in a long-

standing, unambiguous, Washington State

Supreme Court opinion. It is neither

25

unprecedented or patently contrary to the

public interest.

Both state and federal cases dating

back to the early part of this century

have announced the same principles for

setting an ordinary high water line. In

arguing their high water concepts,

petitioners fail to mention the public

interest in honoring the property

expectations of riparian landowners.

No adequate justification has been

shown for certiorari and the writ should

be denied.

DATED this J¢d aay ot ler, 1991.

RESPECTFULLY SUBMITTED,

Allen H. Sanders/Jeffrey S. Schuster

EVERGREEN LEGAL SERVICES

Kabet Lb ws

Robert Dellwo

DELLWO, ROBERTS & SCANLON

Se