Reply Brief — City of Pocatello, Idaho v. Idaho (No. 08-135)

\\\ (Y NOV 1 3 2008

No. 08- 135 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

CITY OF POCATELLO,

Petitioner,

V.

STATE OF IDAHO, THE UNITED STATES OF AMERICA,

AND THE SHOSHONE-BANNOCK TRIBES,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Idaho

REPLY OF CITY OF POCATELLO TO BRIEF

OF THE UNITED STATES IN OPPOSITION

NE

Barry Sullivan Sarah A. Klahn*

Jenner & Block LLP Mitra Pemberton

330 North Wabash Avenue White & Jankowski, LLP

Chicago, IL 60611 511 16th Street, Suite 500

(312) 222-9350 Denver, CO 80202

(303) 595-9441

A. Dean Tranmer

City of Pocatello *Counsel of Record

P. O. Box 4169

Pocatello, ID 83201

(208) 234-6149

Attorneys for Petitioner

il

TABLE OF AUTHORITES

Page(s)

CASES

Caldwell v. United States, 250 U.S. 14 (1919).... 1, 3

Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976) .............00000.

Colville Confederated Tribes v. Walton,

yh AE flo | | Sea

Hagan v. Utah, 510 U.S. 399 (1994) ..00... eee.

In re General Adjudication of All Rights to Use

Water in the Big Horn River System, 753

LS ee

Johnson v. United States, 163 F. 30

ULE aE eS

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ..........

Means v. Navajo Nation, 432 F.3d 924

Ne a csecictnoveseuton

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 US 172 (1999) ................................ 3

Rosebud Sioux Tribe v. Knetp, 430 U.S. 584

i iaiicechdbicgtt noeibdasdnccidaeih shih Sieniaitidbaesatasialatet

ili

South Dakota v. Yankton Sioux Tribe,

a satnvounees

State v. Wabashaw, 740 N.W.2d 583

SSIS ae

United States v. Sioux Nation of Indians,

I i sessonces

Washington v. Wash. State Commercial

Passenger Fishing Vessel, 433 U.S. 658

EEE ESN Si SS en

Yellowbear v. State, 174 P.3d 1270

ac nnae

STATUTORY PROVISIONS AND TREATIES

I iiatciscnsncndsiinievnsessccesescasorcnses

Act of March 3, 1891, Chapter 543,

EES CONROE

Act of September 1, 1888, ch. 936, 25 Stat. 425

Treaty with Cheyenne and Arapahoe, Oct. 28,

RSIS Ceres bere rere

Treaty with Crows, May 7, 1868, 15 Stat. 635..

Treaty with the Eastern Band of Shoshoni and

Bannock Tribes, July 3, 1868, 15 Stat. 673.

Treaty with Kiowas, Comanches and Apaches,

Oct. 21, 1867, 15 Stat. 581, S8B...................cecc00 )

lv

Treaty with Navajo, June 1, 1868, 15 Stat. 667 .....6

Treaty with Northern Cheyenne and

Arapahoe, May 10, 1868, 15 Stat. 655 ............... 6

Treaty with Sioux and Arapahoe, Apr. 29,

EERIE LPR ec 6

Treaty with Utes, Mar. 2, 1868, 15 Stat. 619.......... 6

Petitioner City of Pocatello (“Pocatello”)

respectfully submits this reply in response to the

brief in opposition (“Opp.”) filed by the United States

(the “government ).

INTRODUCTION

The government seeks to diminish the importance

of this case by asserting that Pocatello

misunderstands the Idaho Supreme Court’s decision.

According to the government, the Idaho court did not

hold that Congress lacked the power to grant a water

right to Pocatello, but only that Congress chose not

to grant such a right in this case. See Opp. 10-11.

The government supports that assertion by stating

that Congress’s choice is clear on the face of the

statute (Opp. 10), but that statement is incorrect.

The plain language of the Act of September 1,

1888, ch. 936, 25 Stat. 425 (“1888 Act”) does not

support the government’s _ position. The

government’s reading of the statute depends instead

on the application of several inapplicable and

improper tools of construction. In the government’s

view: (1) Congress may not constitutionally exercise

its power unless it uses certain “magic words” of

conveyance; (2) Congress may not diminish treaty

rights unless it complies with the rule of Ca/dwel] v.

United States, 250 U.S. 14 (1919), a requirement this

Court has never imposed in a diminishment case;

(3) Congress may not apply federal law with respect

to water rights on Indian reservations without

expressly stating that federal, rather than state law,

2

applies; and (4) Congress may not affect tribal rights

without the consent of the tribe where a limitation to

that effect appears in a relevant treaty.

Thus, this is not a case in which the government

divines congressional intent from the “plain

language” of a statute, let alone one in which the

“plain language” shows that Congress decided not to

exercise its power. This is a case in which the court

below first purported to condition the exercise of

congressional power on Congress’s satisfying certain

tests that the court devised, and then determined

that there was no need to decide what Congress

actually intended because Congress had not satisfied

the court’s requirements. In essence, therefore, the

Idaho court held that Congress lacked the power to

legislate because Congress had failed to satisfy

unprecedented requirements that the court imposed.

That is a matter that clearly warrants review by this

Court.

ARGUMENT

1. The government opposes the granting of

certiorari on the ground that Pocatello allegedly has

challenged only an “alternative holding” of the Idaho

Supreme Court, and not the holding itself. (Opp. 10.)

The government’s assertion is incorrect. Pocatello

has directly challenged the Idaho court’s central

holding, that is, that Section 10 cannot be construed

as a congressional grant of a water right to Pocatello

because Section 10 does not contain “historically

recognized and accepted terms of conveyance such as

‘grant’ ‘bargain’ ‘sell’ or ‘convey’ evidencing a transfer

in a property interest... land] such statutes are

3

construed to pass nothing but what is conveyed in

clear and explicit language. Caldwell v. United

States, 250 U.S. at 20.” Pet. App. lla (internal

quotation marks omitted). Thus, the Idaho Supreme

Court determined that Congress lacks the power to

convey a water right unless it uses the requisite

“magic words.” That clearly is a limitation on the

power of Congress to legislate, and it is a limitation

that never has been imposed by this Court in this

area. See Pet. 27-30.

2. By finding Section 10 wanting under the

Caldwell “express language” rule, the Idaho Supreme

Court’s holding (and the government’s argument to

this Court) confound two separate lines of authority.

See Pet. 27-28. The government defends the decision

below on the ground that the Idaho court did “not

contradict any precedent of this Court in applying

the Caldwe// rule in this context.” Opp. 14. But the

Caldwell rule holds that express statutory language

provides the only means for establishing clear

congressional intent in those circumstances in which

the rule applies. By contrast, this Court has

consistently declined to hold that express statutory

language is required to establish a _ clear

congressional intent to diminish treaty rights.

Hagan v. Utah, 510 U.S. 399, 411 (1994). Moreover,

as Pocatello has shown (Pet. 28-29), the Court

consistently has adhered to that position even in

cases (see, e.g., South Dakota v. Yankton Sioux

Tribe, 522 U.S. 329, 351 (1998)) contemporaneous

with those that the government has cited and

misconstrued. See Opp. 14, quoting Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 US 172,

4

202 (1999).! In diminishment cases, the courts “are

not free to say to Congress: ‘We see. what you are

driving at, but you have not said it, and therefore we

shali go on as before.” Rosebud Sioux Tribe v.

Kneip, 430 U.S. 584, 597 (1977), quoting Johnson v.

United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes,

J.).

3. The Idaho court imposed yet another improper

limitation on the power of Congress — conditioning

the application of federal law over waters on the Fort

Hall Reservation on Congress’s express assertion of

federal jurisdiction. Pet. App. 17a. The government

imposes this requirement and suggests that the

analysis under Section 10 involves only the question

whether state law controls “non-/ndians and their

access to water.” Opp. 15 (emphasis in original).

But the government mischaracterizes the question

and misstates the law: federal law necessarily

controls the distribution of natural resources on

tribal lands, whether those resources are being

developed by Indians or non-Indians (like Pocatello),

unless Congress expressly provides otherwise.

Colville Confederated Tribes v. Walton, 647 F.2d 42,

52-53 (9th Cir. 1981) (“water use on a federal

[Indian] reservation is not subject to state regulation

absent explicit federal recognition of state

1 This confusion is further evidenced by the government’s

rephrasing of the question presented: “Whether Section 10...

grants petitioner an express federal right to waters on the Fort

Hall Indian Reservation...” (emphasis added). If the

government truly believes that the right must be made

“express,” certiorari clearly should be granted to decide the

question, since no such requirement has ever been imposed by

the Court in this type of case.

5

authority”). In other words, the default rule is

exactly contrary to that posited by the Idaho court.

There is no need for Congress to assert directly that

federal law applies to water rights on a reservation,

and its “failure” to do so cannot work a forfeiture.

The Idaho court’s theory, now adopted by the

government (see Opp. 15), turns the Supremacy

Clause on its head. Moreover, knowing that its

theory cannot pass muster, the government also

erroneously suggests that Pocatello waived the point

in the Idaho court. However, the point was clearly

made and appropriately briefed by Pocatello below.

(See, e.g. City of Pocatello v. State of Idaho, No.

33669, Idaho Supreme Court, City of Pocatello’s

Opening Brief 14-17, City of Pocatello’s Reply Brief

8, 11-15, 30.)?

4. The government also seeks (Opp. 11) to

denigrate the importance of this case by asserting,

again without foundation, that the case involves only

the meaning of language peculiar to a _ single

instrument, the Treaty with the Eastern Band of

Shoshoni and Bannock Tribes, July 3, 1868, 15 Stat.

673 (“1868 Second Treaty of Fort Bridger”), and that

the tribal consent requirement that the court below

imposed on Congress will have limited practical

effect. But the language is not peculiar to this

treaty. At least seven other Indian treaties have a

2 The government makes the same error when it purports to

invoke state water law concepts to parse the federal statutory

phrase “in common with” (see Opp. 15-16), rather than look to

this Court’s interpretation of the phrase in Washington v.

Wash. State Commercial Passenger Fishing Vessel, 433 U.S.

658 (1979). See Pet. 35-36.

6

consent provision nearly identical to that involved

here, and several of those consent provisions

previously have been the subject of litigation.’

Indeed, this Court has_ previously found

diminishment in four of those cases, notwithstanding

non-compliance with the relevant consent provisions.

See South Dakota v. Bourland, 508 U.S. 679 (1993);

United States v. Sioux Nation of Indians, 448 U.S.

371 (1980); Rosebud Sioux Tribe v. Kneip, 430 U.S.

584 (1977); Lone Wolf v. Hitchcock, 187 U.S. 553

(1903).4 At least three other state and federal

decisions address these treaties and analyze the

diminishment issue without regard to the tribal

consent requirement. Means v. Navajo Nation, 432

F.3d 924 (9th Cir. 2005); Yellowbear v. State, 174

P.3d 1270 (Wyo. 2008);5 State v. Wabashaw, 740

N.W.2d 583 (Neb. 2007). The decision below puts in

question the integrity of this jurisprudence, and,

even more important, the power of Congress to act

without tribal consent.

3 Treaty with Kiowas, Comanches and Apaches, Oct. 21, 1867,

15 Stat. 581, 589, Art. 12; Treaty with Cheyenne and Arapahoe,

Oct. 28, 1867, 15 Stat. 593, Art. 12; Treaty with Utes, Mar. 2,

1868, 15 Stat. 619, Art. 16: Treaty with Sioux and Arapahoe,

Apr. 29, 1868, 15 Stat. 635, Art. 12; Treaty with Crows, May 7,

1868, 15 Stat. 635, Art. 11; Treaty with Northern Cheyenne and

Arapahoe, May 10, 1868, 15 Stat. 655, Art. 8; Treaty with

Navajo, June 1, 1868, 15 Stat. 667, Art. 10.

4 In that respect, as Pocatello has shown (see Pet. 22-24), the

decision below directly conflicts with this Court's established

jurisprudence.

5 Yellowbear v. State, 174 P.3d 1270 (Wyo. 2008), addresses

diminishment of the 1868 Second Treaty of Fort Bridger, the

same treaty at issue in this case.

7

5. Finally, the government makes much of the

fact (Opp. 5) that Pocatello decided to file a federal

law claim for its Section 10 water right in the SRBA,

implying that Pocatello somehow sat on its rights.

But Pocatello had no appropriate forum for

adjudicating its rights until the SRBA was

established. In fact, Pocatello has relied upon the

water right granted in the 1888 Act since 1890, when

Pocatello began using water from certain creeks on

the Reservation and claimed the right to do so under

the 1888 Act. Exs. 60, 62, 64, 65 to Ex. 24 of the

Clerk’s Certificate of Exhibits. Of course, judicial

confirmation is the very core of a water right. But it

was not until the initiation of the SRBA, as Idaho’s

first McCarran Amendment adjudication, that

Pocatello had its first opportunity to join all

necessary parties, including the United States and

the Tribes (all of whom previously were immune

from suit) to adjudicate its Section 10 rights. See

43 U.S.C. § 666 (2008) (“McCarran Amendment”); Jn

6 The government mentions (Opp. 4-5) an 1891 letter written by

assistant attorney-general George Shields, which purportedly

supports the government’s view that Pocatello’s Section 10

water right must be obtained under state law. However,

Shields’s letter was limited to opining that corporate

intermediaries could not develop reservation water supplies on

behalf of the city. Congress immediately overturned Shields’s

interpretation by adopting the Act of March 3, 1891, ch. 543, 26

Stat. 989, 1011 (“1891 Act”) which broadened the right of access

to private corporations “for the purpose of enabling the citizens

of Pocatello to receive the water supply, contemplated by

section 10 lof the 1888 Act].” See Pet. 13. The government

suggests no legal basis for this Court to defer to such a post-

enactment legal interpretation, particularly where, as here,

Congress immediately and expressly repudiated it.

8

re General Adjudication of All Rights to Use Water

in the Big Horn River System, 753 P.2d 76, 87-88

(Wyo. 1988); Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 809-11 (1976).

From the inception of the SRBA in 1987, however,

Pocatello has claimed a water right under Section 10

of the 1888 Act. See Ex. 4 to the Clerk’s Certificate

of Exhibits.

CONCLUSION

Contrary to the government's assertions, the

petition for a writ of certiorari raises serious and

substantial questions of federal law. The decision

below is contrary to the Constitution of the United

States and to this Court’s jurisprudence. Moreover,

as a practical matter, that decision promises to have

a substantial and pernicious effect on water rights

throughout the west and on many other areas of the

law affected by the diminishment doctrine.

9

The petition for a writ of certiorari should be

granted.

Barry Sullivan

Jenner & Block LLP

330 N. Wabash Avenue

Chicago, IL 60611

(312) 222-9350

A. Dean Tranmer

City of Pocatello

P. O. Box 4169

Pocatello, ID 83201

(208) 234-6149

November 13, 2008

Respectfully submitted,

Sarah A. Klahn*

Mitra Pemberton

White & Jankowski, LLP

511 16th Street, Suite 500

Denver, CO 80202

(303) 595-9441

* Counsel of Record