Appendix — Sunnyside Valley Irrigation District v. United States
Supreme Court brief1985
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85- 29880)
NO.
Supreme Court, U.S.
FILED
JUL 18 1985
IN THE SUPREME COURT
OF THE UNITED STATES
JOSEPH F. SPANIOL, JR.
CLERK
SUNNYSIDE VALLEY IRRIGATION DISTRICT,
Petitioner,
vs.
UNITED STATES OF AMERICA, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
CHARLES C. FLOWER and
PATRICK ANDREOTTI of
FLOWER & ANDREOTTI,
Counsel for Petitioner.
Office & Post Office Address:
Suite 1, Yakima Legal Center
303 East "D" Street
Yakima, WA 98901
(509) 248-9084
IN THE SUPREME COURT
OF THE UNITED STATES
SUNNYSIDE VALLEY IRRIGATION DISTRICT,
Petitioner,
vs.
UNITED STATES OF AMERICA, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
CHARLES C. FLOWER and
PATRICK ANDREOTTI of
FLOWER & ANDREOTTI,
Counsel for Petitioner.
Office & Post Office Address:
Suite 1, Yakima Legal Center
303 East "D" Street
Yakima, WA 98901
(509) 248-9084
IN THE SUPREME COURT
OF THE UNITED STATES
NO.
SUNNYSIDE VALLEY IRRIGATION DISTRICT,
PETITIONER,
vs.
UNITED STATES OF AMERICA, et al.,
RESPONDENT.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
INDEX TO APPENDIX
References to Appendix in
weeeemm fOr COrtiorari . «. 2 2 oe eo se Ch
6/14/85 Court of Appeals
I
2/06/85 Court of Appeals
Dk «> > s c-e 6 «0: *s- 0 « 6s @ SS
9/10/82 Court of Appeals
ee: wai Bas GS RA ay ee av aace FT
10/31/80 Instructions to
ee er ae eae
11/28/80 Supplemental Instruc-
tions to the Watermaster ...... 64
Act of August l, 1914
ion moe. oea, SUS} 2 ss es oe eo oe we TB
1/31/45 Statement to the Court .... 77
oe i BS ee ae a ae ee |
Ai Gases: Gee. 4 ee ee es ee ee we
REFERENCES TO APPENDIX IN PETITION FOR
CERTIORARI
Petition for Petition This
Certiorari: Appendix: Appendix:
Page l:
6/14/85 Amended
Opinion A-1 to A-7 4 to 18
Page 2:
2/06/85 Opinion A-8 to A-16 9 to 36
on Dine
9/10/82 Opinion A-17 to A-26 37 to... S56
10/31/80 Instruc-
tions to
Watermaster A-27 to A-30 7 te 63
11/28/80 Supple-
mental Instruc-
tions to
Watermaster A-31 to A-34 64 to 72
Page 3:
Act of August l,
1984 (38 Stat.
582, 604) A-35 72 t.. 7
Page 18:
1/31/45 Judgment A-67 to A-96 140 to 211
"Judgment",
paragraph 4 A-79 to A-80 169 to 174
"Judgment",
paragraph 19(1) A-93 205
Page 34:
"Judgment",
paragraph 17 A-91 to A-92 200 to 201
Page 36:
Colloquy A-51 107 to 108
Page 38:
Judgment A-95 210 to 211
——n—a iii
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KITTITAS RECLAMATION
DISTRICT,
Plaintiffs-Appellees, NOS. 80-3505
4 81-3002
vs. 81-3068
SUNNYSIDE VALLEY IRRIGA-
TION DISTRICT, et al., DC# Civil No. 21
AMENDED
OP ZR OR
)
)
)
)
)
)
) 81-3069
)
)
)
Defendants-Appellants. )
)
Appeal from the United States District Court
for the Eastern District of Washington
District Judge Justin L. Quackenbush,
Presiding
(Argued and Submitted July 8, 1982 - Seattle)
Decided February 6, 1985;
Amended June 14, 1985
Before: KILKENNY, WRIGHT, and CANBY,
Circuit Judges.
WRIGHT, Circuit Judge:
The opinion filed on September 10, 1982,
is withdrawn and replaced by this opinion.
The 1982 opinion was withheld from
publication during our consideration of the
petitions for rehearing.
The petitions for rehearing by Sunnyside
Valley Irrigation District (Sunnyside), Union
Gap Irrigation District (Union Gap), and
Yakima Valley Canal Company (Yakima Valley),
supported by amicus curiae briefs of the
State of Washington, are denied. The
petitions for rehearing by Sunnyside, Union
Gap, Yakima Valley, and Yakima-Tieton
irrigation District filed after our February
6, 1985 opinion are also denied.
In the fall of 1980, the district court
ordered water released from a Yakima water
project reservoir to preserve redds (nests of
salmon eggs) threatened by low
post-irrigation season water flows. We must
decide whether the district court had
authority to order the water released.
-5-
This appeal involves the collision of
two interests: the Yakima Nation's interest
in preservation of their fishing rights, and
the eastern Washington farmers' interest in
preservation of water needed for crops in the
dry spring and summer. Irrigation districts
in eastern Washington protest the district
court's interference with their interests.
The Yakima Nation's interest dates back
to its 1855 treaty with the United States.
Article III reserved to the Indians "[t]Jhe
exclusive right of taking fish in all the
streams . . . bordering [the] reservation. .
- also the right of taking fish at all usual
and accustomed places, in common with
citizens of the Territory ...." 12 Stat.
951, 953 (1855).
The farmers’ interest stems from the
irrigation and storage systems constructed by
=6<
the Reclamation Service in 1909 tc 1933, and
a 1945 consent decree, which specified the
amounts of water to be delivered to the
appellant irrigation districts during the
irrigation season. The district court
retained jurisdiction over the consent
decree's interpretation and administra-
tion. It entered the orders on appeal under
this jurisdiction.
The Chinook salmon normally spawn in the
fall when the water in a river is near its
lowest levels. This practice ensures that in
a natural river system, the spawning site
will remain covered with water throughout the
year. But artificially high irrigation
releases in the early fall of 1980 caused the
salmon to misjudge. If officials closed the
Cle Elum dam as usual, to begin winter
storage, approximately 60 redds would have
been exposed and destroyed.
When the Yakima Nation discovered this,
it requested the irrigation system's
court-appointed watermaster to maintain the
water flow. The watermaster, in turn, asked
the district court for instructions.
The court held two hearings. At the
first, in October 1980, it concluded that the
1945 consent decree did not consider the
Yakima Nation's treaty fishing right. Thus,
the decree did not limit or preclude measures
necessary to preserve that right when
operation of the irrigation system threatened
to damage the salmon run. Because of the
immediacy of the problem, the court ordered
release of necessary water until the next
hearing, held in November 1980.
After the November hearing, the court
issued additional instructions to the
watermaster regarding the 1980 to 1981
non-irrigation season. These authorized (1)
continued release of water, as necessary, to
preserve the redds; (2) use of alternative
measures to preserve the redds, such as
diversionary berms and transplantation; and
(3) monitoring of the redds' condition. The
court also ordered a study of methods for
subsequent irrigation seasons (including
regulation of reservoir releases during the
spawning season) that would accomodate the
needs of farmers and, at the same time,
preserve the salmon run.
The irrigation districts argue that the
court lacked jurisdiction because its order
exceeded the scope of authority reserved in
the consent decree. Alternatively, they
=~
argue that a pending state court adjudication
of Yakima basin water rights deprived the
court of jurisdiction.
Substantively, the irrigation districts
argue that any water right associated with
the Indians' fishing right was abrogated by
Congress before the consent decree, or in its
settlement. They claim also that the decree
is res judicata of any water right.
ANALYSIS
The district court did not exceed the
scope of its retained jurisdiction under the
1/
consent decree. Paragraph 20 gave the
court jurisdiction “over matters of
interpretation of this judgment and matters
relating to the administration thereof."
1/aithough neither side argues that mootness
or lack of finality bar our jurisdiction, we
must examine this issue on our own
initiative. Louisville & Nashville R.R. v.
Mottle San, Wee eee Bee, 29 S.Ct. 42, 43,
53 Led. 126 (1908); Willis v. Craig, 555
F.2d 724, 726 (9th Cir. 1977).
We find no lack of finality because we
have reviewed similar orders issued by the
district court pursuant to its continuing
jurisdiction over the consent decree. See
Kittitas Reclamation Dist. v. Sunnyside
Valley Irrigation Dist., 626 F.2d 95 (9th
Cir. 1980), cert. denied, 449 U.S. 1079, 101
S.Ct. 861, 66 L.Ed.2d 802 (1981). Nor is
this case moot because the challenged orders
could not be fully litigated prior to the end
of their effective period and the situation
may arise again. Weinstein v. Bradford, 423
U.S. 147, 149, 96 S.Ct. 347, 348-49, 46
L.Ed.2d 350 (1975) (per curiam).
elie
Appellants argue that this clause limits the
court's jurisdiction to disputes between the
parties to the decree.
No such limitation appears. The decree
specifically stated that it did not
adjudicate the rights of persons not made
2/ The
parties, including the Yakima Nation.
Court properly assumed jurisdiction to
interpret the decree in light of the Nation's
treaty fishing right.
2/ Paragraph 20 of the consent decree reads
in part: "The rights of any claimants to
water of the Yakima River or watershed who
are not parties to this case shall in no way
be prejudiced or affected by this judgment .
"
-12-
Nor was the district court required to
dismiss the proceeding in favor of a state
court action generally adjudicating water
rights in the Yakima River Basin, State of
Washington v. Acquavella, No. 77-2-01484-5
(Yakima Co. Super. Ct., filed Oct. 12, 1977).
Appellants’ reliance on Colorado River Water
Conservation District v. United States
(Akin), 424 U.S. 800, 96 S.Ct. 1236, 47
L.Ed.2d 483 (1976), is misplaced.
Akin does not hold that a pending state
action adjudicating water rights
automatically deprives the district court of
jurisdiction over issues implicating water.
Rather, the Akin Court found only that, based
on consideration of several factors, >/
dismissal of the federal suit in favor of
state proceedings was justified by wise
judicial administration and efficiency.
wi Bu
Those factors are not present here. In
Akin, the parties intended both the federal
and state court proceedings to be general
adjudications of all water rights in the
3/ The factors weighing in favor of
dismissal in Akin were: (1) that the McCarran
Amendment evinced a clear federal policy in
favor of general, -unified water rights
adjudication; (2) that the state had a
comprehensive system for adjudicating and
Managing water rights; (3) that the United
States had filed only its complaint in
federal court before the defendants moved to
dismiss in favor of the state proceeding; (4)
that over 1,000 defendants were named,
indicating extensive involvement of state
water rights; (5) that the federal court was
located farther from the area in question;
and (6) that in other state water divisions,
the United States had voluntarily
participated in ongoing state water
adjudication.
«teen
area. The United States had filed only the
complaint when the defendants moved to
dismiss it in favor of the state proceeding.
Here, the district court interpreted a decree
entered by it in 1945. The parties intended
no general adjudication of water rights and
no party moved to dismiss the federal suit.
We do not find that the district court
acted inconsistently in denying removal of
the Acquavella action based on the Akin
factors while retaining jurisdiction here.
As noted above, the two actions have little
in common.
Because the 1945 consent decree was not
a general adjudication of all water rights in
the Yakima River Basin and did not adjudicate
~15=
the treaty rights of the Yakima Nation, */
appellants' res judicata argument also fails.
In October 1980, the watermaster and
other parties presented the district court
with an emergency. The scheduled closing of
the dam threatened the redds with destruc-
tion. Information on alternative means of
preserving the redds was noticeably absent.
The court granted the Department of the
Interior more time to study the problem and
temporarily ordered the water levels
4/ The 1945 decree resulted from a suit
filed by the United States in 1939, seeking a
declaration of their responsibilities to
various contract holders in the Yakima
Irrigation System. Neither side joined the
additional parties that would have been
necessary for a general adjudication, like
the one involved in Nevada v. United States,
463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509
(1983). The final decree settled only the
rights of the irrigation districts made party
to the proceeding.
«“lS<
maintained in sufficient amount to preserve
the redds.
At the second hearing, experts in the
field of fish biology testified and suggested
actions for preserving the redds other than
release of water. One suggested that if 12
of the redds were transplanted, the dam could
be closed. The judge ordered these measures
taken, including transportation of the
endangered redds, construction of berms to
divert water into secondary channels, and the
opening of some of those channels. Because
he was unsure of the effect of these
measures, he continued the watermaster's
authority to release water as necessary.
We find no abuse of discretion in the
court's decision. It was empowered to issue
orders directing the allocation of water
within the Yakima River system. Its orders
~~
authorizing the watermaster to preserve the.
1980 redds were reasonable emergency
measures.
The order for further study of the
problem was reasonable under’ the
circumstances. The study would provide data
necessary to insure future disputes could be
resolved in the most efficient way.
We affirm the district court's orders. >/
5/ We need not decide the scope of fishing
rights reserved to the Yakima Nation under
the 1855 treaty.
-1§-
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KITTITAS RECLAMATION
DISTRICT, Nos. 80-3505
81-3002
Plaintiffs-Appellees, 81-3068
81-3069
DC# Civil No. 21
SUNNYSIDE VALLEY IRRIGA-
TION DISTRICT, et al.,
)
)
)
)
)
vs. )
)
)
) OPINION
)
)
Defendants-Appellants.
Appeal from the United States District
Court for the Eastern District of Washington
District Judge Justin L. Quackenbush,
Presiding ,
Decided February 6, 1985
[Argued and Submitted July 8, 1982]
Before: KILKENNY, WRIGHT, and CANBY,
Circuit Judges.
WRIGHT, Circuit Judge:
The opinion filed on September 10, 1982,
is withdrawn and replaced by this opinion.
The 1982 opinion was withheld from
-19-
publication during our consideration of the
petitions for rehearing. |
The petitions for rehearing by Sunnyside
Valley Irrigation District, Union Gap
Irrigation District, and Yakima Valley Canal
Company, supported by amicus curiae briefs of
the State of Washington, are denied.
In the fall of 1980, the district court
ordered water released from a Yakima water
project reservoir to preserve redds (nests of
salmon eggs) threatened by low post-
irrigation season water flows. We must
decide whether the district court had
authority to order the water released.
This appeal involves the collision of
two interests: the Yakima Nation's interest
in preservation of their fishing rights, and
the eastern Washington farmers' interest in
preservation of water needed for crops in the
-20-
dry spring and summer. Irrigation districts
in eastern Washington protest the district
court's interference with their interests.
The Yakima Nation's interest dates back
to its 1855 treaty with the United States.
Article III preserved to the Indians "(t]he
exclusive right of taking fish in all the
streams . . . bordering [the] reservation. .
- also the right of taking fish at all usual
and accustomed places, in common with
citizens of the Territory ...."* 12 Stat.
9352, 953 (1655).
The farmers' interest stems from the
irrigation and storage systems constructed by
the Reclamation Service in 1909 to 1933, and
a 1945 consent decree, which specified the
amounts of water to be delivered to the
appellant irrigatic: “istricts during the
irrigation season. The district court
mS
retained jurisdiction over the consent
decree's interpretation and administra-
tion. It entered the orders on appeal under
this juridiction.
The Chinook salmon normally spawn in the
fall when the water in a river is near its
lowest levels. This practice ensures that in
a natural river system, the spawning site
will remain covered with water throughout the
year. But artificially high irrigation
releases in the early fall of 1980 caused the
salmon to misjudge. If officials closed the
Cle Elum dam as usual, to begin winter
storage, approximately 60 redds would have
been exposed and destroyed.
When the Yakima Nation discovered this,
it requested the irrigation system's
court-appointed watermaster to maintain the
~
water flow. The watermaster, in turn, asked
the district court for instructions.
The court held two hearings. At the
first, in October 1980, it concluded that the
1945 consent decree did not consider the
Yakima Nation's treaty fishing right. Thus,
the decree did not limit or preclude measures
necessary to preserve that right when
operation of the irrigation system threatened
to damage the salmon run. Because of the
immediacy of the problem, the court ordered
release of necessary water until the next
hearing, held in November 1980.
After the. Novéeber hearing, the court
issued additional instructions to the
watermaster regarding the 1980 to 1981 non-
irrigation season. These authorized (1)
continued release of water, as necessary, to
preserve the redds; (2) use of alternative
i
measures to preserve the redds, such as
diversionary berms and transplantation; and
(3) monitoring of the redds' condition. The
court also ordered a study of methods for
subsequent irrigation seasons (including
regulation of reservoir releases during the
spawning season) that would accommodate the
needs of farmers and, at the same time,
preserve the salmon run.
The irrigation districts argue that the
court lacked jurisdiction because its order
exceeded the scope of authority reserved in
the consent decree. Alternatively, they
argue that a pending state court adjudication
of Yakima basin water rights deprived the
court of jurisdiction.
Substantively, the irrigation districts
argue that any water right associated with
the Indians' fishing right was abrogated by
athe
Congress before the consent decree, or in its
settlement. They claim also that the decree
is res judicata of any water right.
gurrspiction?/
Af Although neither side argues that
mootness or lack of finality bar our
jurisdiction, we must examine this issue on
our own initiative. Louisville & Nashville
R.R. v. Motley, 211 U.S. 149, 152, 29 S.Ct.
42, 43, 53 L.Ed. 126 (1908); Willis vs.
Craig, 555 F.2d 724, 726 (9th Cir. 1977).
We find no lack of finality because we
have reviewed similar orders issued by the
district court pursuant to its continuing
jurisdiction over the consent decree. See
Kittitas Reclamation Dist. v. Sunnyside
Valley Irrigation Dist., 626 F.2d 95 (9th
Cir. 1980), cert. denied, 449 U.S. 1079, 101
S.Ct. 861, 66 L.Ed.2d 802 (1981). Nor is
this case moot because the challenged orders
could not be fully litigated prior to the end
of their effective period and the situation
may arise again. Weinstein v. Bradford, 423
U.S. 147, 149, 96 S.Ct. 347, 348-49, 46
L.Ed.2d 350 (1975) (per curiam).
=2S—
The district court did not exceed the
scope of its retained jurisdiction under the
consent decree. Paragraph 20 gave the court
jurisdiction "over matters of interpretation
of this judgment and matters relating to the
administration thereof." Appellants argue
that this clause limits the court's
jurisdiction to disputes between the parties
to the decree.
No such limitation appears. The decree
specifically stated that it did not
adjudicate the rights of persons not made
2/
parties, including the Yakima Nation. The
2/ Paragraph 2C of the consent decree reads
in part: "The rights of any claimants to
water of the Yakima River or watershed who
are not parties to this case shall in no way
be prejudiced or affected by this Judgment.
oo
court properly assumed jurisdiction to
interpret the decree in light of the Nation's
treaty fishing right.
Nor was the district court required to
dismiss the proceeding in favor ot a state
court action generally adjudcating water
rights in the Yakima River basin, State of
Washington v. Acquavella, No. 77-2-01484-5
(Yakima Co. Super. Ct., filed Oct. 12, 1977).
Appellants' reliance on Colorado River Water
Conservation District v. United States
(Akin), 424 U.S. 800, 96 S.Ct. 1236, 47
L.Ed.2d 483 (1976), is misplaced.
Akin does not hold that a pending state
action adjudicating water rights
automatically deprives the district court of
jurisdiction over issues implicating water.
Rather, the Akin Court found only that, based
om 9 Fo
3/
on consideration of several factors,
dismissal of the federal suit in favor of
state proceedings was justified by wise
judicial administration and efficiency.
3/ The factors weighing in favor of
dismissal in Akin were: (1) that the McCarran
Amendment evinced a clear federal policy in
favor of general, unified water rights
adjudication; (2) that the state had a
comprehensive system for adjudicating and
managing water rights; (3) that the United
States had filed only its complaint in
federal court before the defendants moved to
dismiss in favor of the state proceeding; (4)
that over 1,000 defendants were named,
indicating extensive involvement of state
water rights; (5) that the federal court was
located further from the area in question;
and (6) that in other state water divisions,
the United States had voluntarily
participated in ongoing state water
adjudication.
~28—
Those factors are not present here. In
Akin, the parties intended both the federal
and state court proceedings to be general
adjudications of all water rights in the
area. The United States had filed only the
complaint when the defendants moved to
dismiss it in favor of the state pro-
ceeding. Here, the district court
interpreted a decree entered by it in 1945.
The parties intended no general adjudication
of water rights and no party moved to dismiss
the federal suit.
We do not find that the district court
acted inconsistently in denying removal of
the Acquavella action based on the Akin
factors while retaining jurisdiction here.
As noted above, the two actions have little
in common.
SUBSTANTIVE BASIS OF THE ORDERS
=29=
The 1855 Treaty reserved to the Yakima
Nation extensive fishing rights. See
Washington v. Washington State Commercial
Passenger Fishing Vessel Association, 443
U.S. 658, 666-667, 99 S.Ct. 3055, 3064-65, 61
L.Ed.2d 823 (1979) (Yakima treaty secured
right to fish at numerous accustomed places,
both on and off the reservation), United
States v. Winans, i98 U.S. 371, 381, 25 S.Ct.
662, 664, 49 L.Ed. 1089 (1905) (Yakima Nation
Indians entitled to cross land settled by
non-Indians to reach accustomed fishing
grounds). The Treaty protects the Nation
against restriction of or interference with
their reserved rights. United States v.
State of Washington, 506 F.Supp. 187, 203
(W.D. Wash. 1980).
The parties to a treaty bear a duty to
refrain from actions interfering with either
-30-
the Indians' access to fishing grounds or the
amount of fish present there. Id. The
government constructed the irrigation project
subject to that duty. When its operation of
the project threatened further to deplete an
already low Chinook salmon run, see United
States v. Oregon, 657 F.2d 1009 (9th Cir.
1981), it violated its duties under the
Treaty.
In the fall of 1980 the regulation of
the river water levels interfered with the
salmon spawning habits. This violation
authorized the district court to correct or
offset the damage unless, as appellants
argue, the consent decree or prior
Congressional action abrogated the Yakima
Nation's Treaty fishing right.
Congress may abrogate rights reserved by
the Indians, but we do not lightly impute
o3i=
such an intent. Menominee Tribe of Indians
v. United States, 391 U.S. 404, 413, 88 S.Ct.
1705, 1711, 20 L.Ed.2d 697 (1968). We find
no evidence that Congress abrogated or
limited the Treaty fishing right.
Appellants point to 1906 administrative
action limiting the Indian Irrigation Project
(now the Wapato Irrigation Project) to 147
c.f.s. of water for irrigation purposes, and
Congressional action in 1914, which raised
this amount to 720 c.f.s. Indian
Appropriation Act of 1914, ch. 222, 38 Stat.
582, 604. Later contracts between the Bureau
of Reclamation and the Project increased the
Indians' irrigation water allocation.
The Wapato Irrigation Project was a
party to the 1945 consent decree which
allocated to the Indians 720 c.f.s. without
proration, and the additional contract
=32-
amounts, subject to proration. The United
States was also a party to that decree.
Neither the Wapato Irrigation Project
nor the United States represented the Indians
for purposes of their fishing water rights.
Fishing rights were not a subject of the 1945
dispute. No abrogation or limitation of
fishing rights occurred when the irrigation
rights were determined.
Because the 1945 consent decree was not
a general adjudication of all water rights in
4/
the Yakima River Basin, appellants' res
judicata argument also fails.
In October 1980, the watermaster and
other parties presented the district court
with an emergency. The scheduled closing of
the dam threatened the redds with destruc-
tion. Information on alternative means of
preserving the redds was noticeably absent.
=33-
The court granted the Department of the
Interior more time to study the problem and
temporarily ordered the water levels
ma_ntained in sufficient amount to preserve
the redds.
4/ The 1945 decree resulted from a suit
filed by the United States in 1939, seeking a
declaration of their responsibilities to
various contract holders in the Yakima
Irrigation System. Neither side joined the
additional parties that would have been
necessary for a general adjudication, like
the one involved in Nevada v. United States,
103 S.Ct. 2906 (1983). The final decree
settled only the rights of the irrigation
districts made party to the proceeding.
-34-
At the second hearing, experts in the
field of fish biology testified and suggested
actions for preserving the redds other than
release of water. One suggested that if 12
of the redds were transplanted, the dam could
be closed. The judge ordered these measures
taken, including transportation of the
endangered redds, construction of berms to
divert water into secondary channels, and the
opening of some of those channels. Because
he was unsure of the effect of these
measures, he continued the watermaster's
authority to release water as necessary.
We find no abuse of discretion in the
court's decision. It had authority to
interpret the 1945 consent decree in light of
the Treaty fishing right. Its orders
authorizing the watermaster to preserve the
=-35-
1980 redds were reasonable emergency measures
taken to protect the Treaty fishing right.
We need not decide the exact scope of
the Treaty fishing right. It is enough to
note that the Indians‘ fishing rights are
protected and under these circumstances the
release of water was justified to avoid
damage to the redds.
The order for further study of the
problem was a reasonable measure. The study
would provide data necessary to insure future
dispuces could be resolved in the most
reasonable and workable way.
We affirm the district court's orders.
=36-
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KITTITAS RECLAMATION
DISTRICT, UNITED STATES,
et al., Nos. 80-3505,
81-3002,
Plaintiffs-Appellees, 81-3068,
81-3069
vs.
SUNNYSIDE VALLEY IRRIGA-
TION DISTRICT, et al.,
DC# Civil No. 21
OPINION
Defendants-Appellants.
eee ee ee ee ee ee ee ee ee ee
Appeal from the United States District
Court for the Eastern District of Washington
District Judge Justin L. Quackenbush,
Presiding
[Argued ard Submitted July 8, 1982]
Before: WRIGHT, KILKENNY, and CANBY,
Circuit Judges.
WRIGHT, Circuit Judge:
In the fall of 1980, the district court
ordered water released from a Yakima water
project reservoir to preserve redds (nests of
ye
salmon eggs) threatened by low
post-irrigation season water flows. We must
decide whether the district court had
authority to order the water released.
This appeal involves the collision of
two interests: the Yakima Nation's interest
in preservation of their fishing rights, and
the eastern Washington farmers' interest in
preservation of water needed for crops in the
dry spring and summer. Irrigation districts
in eastern Washington protest the district
court's interference with their interests.
The Yakima Nations' interest dates back
to its 1855 treaty with the United States.
Article III reserved to the Indians "[t]he
exclusive right of taking fish in all the
streams .. . bordering the reservation...
also the right of taking fish at all usual
and accustomed places, in common with
=-38-
Caueeeme 2 cee Serritory .. .. " 12 Stat.
25, 27 (1859).
The farmers’ interest stems from the
irrigation and storage systems constructed by
the Reclamation Service in 1909 to 1933, and
a 1945 consent decree, which specified the
amounts of water to be delivered to tne
appellant irrigation districts during the
irrigation season. The district court
retained jurisdiction over the consent
decree's interpretation and administration.
It entered the orders on appeal under this
jurisdiction.
The Chinook salmon normally spawn in the
fall when the water in a river is near its
lowest levels. This practice ensures that in
a natural river system, the spawning site
will remain covered with water throughout the
year. But artificially high irrigation
=39—
releases in the early fall of 1980 caused the
salmon to misjudge. If officials closed the
Cle Elum dam as usual, to begin winter
storage, approximately 60 redds would have
been exposed and destroyed.
When the Yakima Nation discovered this,
it requested the irrigation system's
court-appointed watermaster to maintain the
water flow. The watermaster, in turn, asked
the district court for instructions.
The court held two hearings. At the
first, in October 1980, it concluded that the
1945 consent decree did not consider the
Yakima Nations' treaty fishing right. Thus,
the decree did not limit or preclude measures
necessary to preserve that right when
operation of the irrigation system threatened
to damage the salmon run. Because of the
immediacy of the problem, the court ordered
-40-
release of necessary water until the next
hearing, held in November 1980.
After the November hearing, the court
issued additional instructions to the
watermaster. These authorized (1) continued
release of water, as nevesdaty; to preserve
the redds; (2) use of alternative measures to
preserve the redds, such as diversionary
berms and transplantation; (3) monitoring of
the redds' condition; and (4) study of
methods for subsequent irrigation seasons
(including regulation of reservoir releases
during the spawning season) that would
accommodate the needs of farmers and, at the
same time, preserve the salmon run.
The irrigation districcs argue that the
court lacked jurisdiction because its orders
exceeded the scope of authority reserved in
the consent decree. Alternatively, they
wt
argue that a pending state court adjudication
of Yakima basin water rights deprived the
court of jurisdiction. =
Substantively, the irrigation districts
argue that any water right associated with
the Indians' fishing right was abrogated by
Congress before the consent decree, or in its
settlement. They claim also that the decree
is res judicata of any water right.
Jurisdiction 1/
The district court did not exceed the
scope of its retained jurisdiction under the
consent decree. Paragraph 20 gave the court
jurisdiction "over matters of interpretation
of this judgment and matters relating to the
administration thereof." Appellants argue
that this clause limits the court's
jurisdiction to disputes between the parties
to the decree.
=~42=
No such limitation appears. The decree
specifically stated that it did not
adjudicate the rights of persons not made
parties, including the Yakima Nation. 2/ The
court properly assumed jurisdiction to
interpret the decree in light of the Nations'
treaty fishing right.
Nor was the district court required to
dismiss the proceeding in favor of a state
court action generally adjudicating water
rights in the Yakima River basin, State of
Washington v. Acquavella, No. 77-2-01484-5
(Yakima Co. Super. Ct., filed Oct. 12,
3/
1977). Appellants' reliance on Colorado
River Water Conservation District vs. United
States, (Akin), 424 U.S. 800 (1976), is
misplaced.
Akin does not hold that a pending state
action adjudicating water rights
=Q3—
automatically deprives the district court of
jurisdiction over issues implicating water.
Rather, the Akin Court found only that, based
on consideration of several factors, “/
dismissal of the federal suit in favor of
state proceedings was justified by wise
judicial administration and efficiency.
Those factors are not present here. In
Akin, the parties intended both the federal .
and state court proceedings to be general
adjudications of all water rights in the
area. The United States had filed only the
complaint when the defendants moved to
dismiss it in favor of the state pro-
ceeding. Here, the district court
interpreted a decree entered by it in 1945,
The parties intended no general adjudication
of water rights and no party moved to dismiss
the federal suit.
-44-
We do not find that the district court
acted inconsistently in denying removal of
the Acquavella action based on the Akin
factors while retaining jurisdiction here.
As noted above, the two actions have little
in common.
Substantive Basis of the Orders
The 1855 Treaty reserved to the Yakima
Nation extensive fishing rights. See
Washington v. Washington State Commercial
Passenger Fishing Vessel Association, 443
U.S. 658, 666-667 (1979) (Yakima treaty
secured right to fish at numerous accustomed
places, both on and off the reservation),
United States vs. Winans, 198 U.S. 371, 381
(1905) (Yakima Nation Indians entitled to
cross land settled by non-Indians to reach
accustomed fishing grounds). The Treaty
protects the Nation against restriction of or
_\
interference with their reserved rights.
United States v. State of Washington, 506
F.Supp. 187, 203 (W.D. Wash. 1980).
The parties to a treaty bear a duty to
refrain from actions interfering with either
the Indians' access to fishing grounds or the
amount of fish present there. Id. The
government constructed the irrigation project
subject to that duty. When its operation of
the project threatened further to deplete an
already low Chinook salmon run, see United
States v. State of Oregon, 657 F.2d 1009 (9th
Cir. 1981), it violated its duties under the
Treaty.
In the fall of 1980, the regulation of
the river water levels interfered with the
salmon spawning habits. This violation
authorized the district court to correct or
offset the damage unless, as appellants
-46-
argue, the consent decree or prior
Congressional action abrogated the Yakima
Nations' Treaty fishing right.
Congress may abrogate rights reserved by
the Indians, but we do not lightly impute
such an intent. Menominee Tribe of Indians
v. United States, 391 U.S. 404, 413 (1968).
We find no evidence that Congress abrogated
or limited the Treaty fishing right.
Appellants point to 1906 administrative
action limiting the Indian Irrigation Project
(now the Wapato Irrigation Project) to 147
c.f.s. of water for irrigation purposes, and
Congressional action in 1914, which raised
this amount to 720 c.f.s. Indian
Appropriation Act of 1914, ch.222, 38 Stat.
582, 604. Later contracts between the Bureau
of Reclamation and the Project increased the
Indians' irrigation water allocation.
a4Je
—
The Wapato Irrigation Project was a
party to the 1945 consent decree which
allocted to the Indians 720 c.f.s. without
proration, and the additional contract
amounts, subject to proration.
We fail to see how determination of the
Yakima Nations' entitlement to water for
irrigation abrogated or limited their fishing
right. Part of the confusion arises from
appellants' mischaracterization of the
district court's action as recognition of an
5/ We do not
implied reserved water right.
affirm the district court's orders on the
basis of whatever water rights may be
reserved to ‘the Yakima Nation to fulfill
vital purposes of its Treaty. We base our
holding solely on the Nations' Treaty fishing
right.
-48-
This clarification eliminates
appellants' res judicata argument as well.
Appellants rely on United States v.
Truckee-Carson Irrigation District, 649 F.2d
1286, 666 F.2d 351 (9th Cir. 1981). In
Truckee we held that a 1944 general federal
water adjudication barred a 1973 action
seeking a declaration of a reserved water
right in the Paiute Indians for preservation
of their fishery in Pyramid Laks and the
Lower Truckee River. Not only is no reserved
water right implicated in this case, but the
1945 consent decree was not a general
adjudication of all water rights in the
6/
Yakima River Basin.
Propriety of the Corrective Measures Chosen
In October 1980, the watermaster and
other parties presented the district court
with an emergency. The scheduled closing of
-49-
the dam threatened the redds with
destruction. Information on alternative
means of preserving the redds was noticeably
absent. The court granted the Department of
the Interior more time to study the problem
and temporarily ordered the water levels
maintained in sufficient amount to preserve
the redds.
At the second hearing, experts in the
field of fish biology testified and suggested
actions for preserving the redds other than
release of water. One suggested that if 12
of the redds were transplanted, the dam could
be closed. The court ordered these measures
taken, including transplantation of the
endangered redds, construction of berms to
divert water into secondary channels, and the
opening of some of those channels. Because
he was unsure of the effect of these
-50-
measures, he continued the watermaster's
authority to release water as necessary.
We find no abuse of discretion in the
court's decision. It properly weighed the
interests involved?’
and the emergency nature
of the problem. Given more time in which to
solve the problem, the release of water may
not have been necessary. But, under these
circumstances, the release was justified. We
note with approval that the district court,
in anticipation of future occurrences,
ordered a report on means of meeting
irrigation users’ needs with less impact on
the salmon run.
We affirm the district court's orders.
FOOTNOTES
Af Although neither side argues “hat
mootness or lack of finality bar our
jurisdiction, we must examine this issue on
ol 9 we
our own initiative. Louisville & Nashville
R.R. v. Mottley, 211 U.S. 149, 152 (1908);
Willis vs. Craig, 555 F.2d 724, 726 (9th Cir.
197 o.
We find no lack of finality because we
have reviewed similar orders issued by the
district court pursuant to its continuing
jurisdiction over the consent decree. See
Kittitas Reclamation Dist. v. Sunnyside
Valley Irrigation Dist., 626 F.2d 95 (9th
Cir. 1980), cert. denied, 449 U.S. 1079
(1981). Nor is this case moot because the
challenged orders could not be fully
litigated prior to the end of their effective
period and the situation may arise again.
Weinstein v. Bradford, 423 U.S. 147, 1498
(1975) (per curiam).
2/ Paragraph 20 of the consent decree reads
in part: "The rights of any claimants to
water of the Yakima River or watershed who
are not parties to this case shall in no way
be prejudiced or affected by this judgment .
"
3/ The state, as amicus curiae, also urges
this ground for reversal. According to its
papers, the United States' motion to dismiss
the state proceeding was denied. The United
States then petitioned for reconsideration in
light of our recent cGecisions of Northern
Cheyenne Tribe v. Adsit, 668 F.2d 1080 (9th
Cir. 82), San Carlos Apache Tribe v. State
of Arizona, 8 F. (Sth Cir. 1982),
and Navajo Nation v. United States, 668 F.2d
1100 (9th Ci Cir. 1982).
-§2-
Notwithstanding our decisions in these
cases, the state court determined that it had
jurisdiction over the United States as a
representative of federally reserved Indian
water rights. This decision was not timely
appealed by the United States, but the
Sunnyside Valley Irrigation District moved
for discretionary review by the _ state
appellate court. As of oral argument in our
case, the state appellate court had not
accepted review.
4/ The factors weighing in favor of
dismissal in Akin were: (1) that the McCarran
Amendment evinced a clear federal policy in
favor of general, unified water rights
adjudication; (2) that the state had a
comprehensive system for adjudicating and
managing water rights; (3) that the United
States had filed only its complaint in
federal court before the defendants moved to
dismiss in favor of the state proceeding; (4)
that over 1000 defendants were named,
indicating extensive involvement of state
water rights; (5) that the federal court was
located further from the area in question;
and (6) that in other state water divisions,
the United States had voluntarily
participated in ongoing state water
adjudication.
5/ The Treaty's purpose of preserving
fishing rights of the Yakima Nation would not
have been totally frustrated without the
release of water. The temporary lack of
water did not threaten either their access to
traditional fishing grounds, or the entire
-53-
salmon run. The possible destruction of
redds did threaten to diminish the value of
their fishing right, but release of water was
not the only apparent solution to prevent the
destruction. Compare Cappaert v. United
States, 426 U.S. 128 (1976) (District court
could not find feasible alternatives for
preserving the Devil's Pool and its rare fish
other than maintaining the water level in the
Pool).
A federal reservation of land contains
an implicit reservation of water only if the
purposes for which the land is reserved
require water. id. at 139. in Cappaert, the
President set aside the Devil's Pool as a
national monument because of its historic and
scientific value. The reservation of the
Pool would have been meaningless, however, if
the water level was allowed to drop
significantly. Id. at 140.
When pumping of ground water by nearby
ranchers lowered the water in the Pool beyond
safe levels, the district court enjoined
further pumping based on an implied-reserved-
water right. The Court affirmed the
existence of this right, and further approved
the district court's decision that the water
in the Pool could drop so long as the
necessary level was maintained. The court
held that "the implied-reservation-of-water
-rights doctrine .. . reserves only that
amount of water necessary to fulfill the
purpose of the reservation, no more." Id. at
141 (our emphasis). PS
-54-
Cases use the same analysis in
determining whether Indian reservations
contain implicit rights to various bodies of
water. See Arizona v. California, 373 U.S.
546 (1963) (reserved water right necessary to
fulfill agricultural purpose of the iand, in
amount that will irrigate all practicably
irrigable land on the reservation); Winters
v. United States, 207 U.S. 564 (1908)
(reservation of land useless unless imply a
right to sufficient water to irrigate it);
Colville Confederated Tribes v. Walton, 647
F.2d 42 (9th Cir.), cert. denied, 102 S.Ct.
657 (1981) (water right necessary to fulfill
treaty purpose of ensuring access to fishing
grounds). In each case, a guaranteed supply
of water was required to preserve the
reservations' purposes. Without the reserved
water right, others could appropriate the
water, frustrating the reservation.
Unlike these cases, correction of the
redds problem does not require a guaranteed
supply of water, to which others may not have
access. The government's interference with
the water level during the spawning season
required the district court to take emergency
measures, which included for a time releasing
water from the dam. These meacures were
justified by the government's violation of
its Treaty duties, not by any implied-
reserved-water-right to water stored in the
Cle Elum reservoir.
6/ The 1945 decree resulted from a suit
filed by the United States in 1939, seeking a
declaration of their responsibilities to
-§5-—-
various contract holders in the Yakima
Irrigation System. Neither side joined the
additional parties that would have been
necessary for a general adjudication. The
final decree settled only the rights of the
irrigation districts made party to the
proceeding.
In contrast, in Truckee the government
framed its complaint in the broadest possible
manner. It provided individual notice and
widespread publicity of the action. The
court gave interested parties every
opportunity to present their claims in
hearings over several years. The proceeding
was adversarial and finally determined the
rights of all involved. United States v.
Truckee-Carson Irrigation District, 649 F.2d
1286, 1308-1309 (9th Cir. 1981).
7/ at the November 25, 1980 hearing, the
district court in fact observed that:
I don't have any feeling at all
tnat the irrigators in this case
would prefer the salmon just
disappear. I don't sense that
feeling at all. I think they are
Sincere and legitimate in their
concern about the waterflow, but I
also feel that they are sincere
in their concern for the salmon
and, of course, the rights of the
[I]ndians in regard thereto.
~$6-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
KITTITAS RECLAMATION
DISTRICT, et al.,
Plaintiff, Civil No. 21
INSTRUCTIONS TO
)
)
)
)
)
Vv. )
) THE WATERMASTER
)
)
)
)
)
SUNNYSIDE VALLEY IRRIGA-
TION DISTRICT, et al.,
Defendants.
THIS MATTER came on regularly for
hearing on October 29, 1980, upon a motion on
behalf of William G. Gray, the duly appointed
and acting Watermaster in this proceeding,
for instructions from this Court concerning
the proper operation and management of
certain reservoir facilities of the Yakima
Reclamation Project during the non-
irrigation season from October, 1980, to
April 1981, in consideration of the
=5 Jo
provisions of the 1945 consent decree on file
in this case and the request of the Yakima
Indian Nation that a flow of water in
portions of the Yakima River be main-
tained to protect certain spawning areas for
Spring Chinook Salmon in the Upper Yakima
River Basin; and
The Watermaster appearing by Robert M.
Sweeney, Assistant United States Attorney,
and George Dysart, Department of Justice
attorney, appearing for the Department of the
Interior, and the Yakima Indian Nation
appearing by James B. Hovis and Timothy
Weaver, Attorneys at Law; and various
irrigation districts named in the 1945
consent decree appearing by Donald H. Bond,
Dennis Fluegee, Robert Frazier, Jay Sandlin,
Charles Flower, and Jeffrey Simpson,
Attorneys at Law; and
-58-
It appearing that it is the usual
practice of the Project Manager of the Yakima
Reclamation Project, (who is also the
Watermaster in this action), to reduce flows
from the various Project reservoirs at the
end of the irrigation season in mid-October
to provide for "carry-over" storage water for
use during the next year's irrigation season,
which closures significantly reduce the flow
of water in the Yakima River; and at the end
of the 1980 irrigation seaso. the gates of
the Lake Cle Elum reservoir were scheduled
for closure on October 20, 1980; and
It further appearing that during the
salmon spawning season in late summer of 1980
certain Spring Chinook Salmon migrated up the
Yakima River and spawned in certain portions
of the upper Yakima River and that some sixty
"redds" or spawning areas have been
==
identified in that portion of the Yakima
River lying between the entry of the Lake Cle
Elum River into the Yakima River, and the
Yakima Indian Nation has requested William
Gray as Project Manager to maintain a
sufficient flow in the afore-described reach
of the Yakima River to safeguard the
development of salmon fry from the redds,
upon the Tribe's assertion that the salmon
spawning area in the upper Yakima River Basin
is a part of a fishery reserved to the Yakima
Indian Nation and it's members pursuant to
its treaty with the United States of June 9,
1855, and
It appearing that Mr. Gray has delayed
the closing of the Lake Cle Elum Reservoir
gates and has met with representatives of the
Yakima Indian Nation, the irrigation
districts, and the Fish and Wildlife Service
-60-
of the Department of the Interior, and that
the Court has been requested to issue
instructions to the Watermaster concerning
the management of the facilities of the
Project and the waters within the reservoirs
and the Yakima River in view of the
conflicting interests as to the management of
said waters; and
Attorney George Dysart having requested
that some additional time be granted before
closure of the reservoir gates in order to
allow the Secretary of the Interior to
investigate the situation and to consider any
possible alternative methods of operation
that might be available; NOW, THEREFORE, upon
consideration of the foregoing,
IT IS ORDERED AND DECREED AND THE
WATERMASTER IS INSTRUCTED as follows:
-61-
That to and until 8:00, A.M.,
Friday, November 28, 1980, a sufficient flow
of water not to exceed 650 c.f.s., (as
measured at the Bureau of Reclamation gauging
station on the Yakima River at Cle Elum),
shall be maintained in that portion of the
Yakima River lying between the confluences of
the Cle Elum River and the Teanaway to
protect and safeguard as nearly as possible
the Spring Chinook Salmon Spawning area in
that reach of the Yakima River; PROVIDED,
2. That the Watermaster is authorized
to regulate the flows in the aforementioned
reach of the Yakima River in such amount
below 650 c.f.s., (as measured at the Bureau
of Reclamation gauging station on the Yakima
River at Cle Elum), as the Watermaster may
find consistent with the protection of the
spawning area after consultation with
-62-
biologists of the Fish and Wildlife Service
of the Department of the Interior and the
Yakima Indian Nation; and
3. That further hearing in this matter
shall be held at 9:30, A.M., Tuesday,
November 25, 1980, at the United States
Courthouse in Spokane, Washington or at such
earlier time or at such other place as may
appear appropriate to the Court.
DATED this 31 day of October, 1980.
/s/ Justin L. Quackenbush
UNITED STATES DISTRICT JUDGE
Presented by:
/s/ Robert M. Sweeney
Assistant U.S. Attorney
-63-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
KITTITAS RECLAMATION )
DISTRICT, et al., )
)
Plaintiff, ) Civil No. 21
)
Vv. ) SUPPLEMENTAL
) INSTRUCTIONS TO
SUNNYSIDE VALLEY IRRIGA- ) THE WATERMASTER
TION DISTRICT, et al., )
)
Defendants. )
)
THIS MATTER came on regularly for
hearing before this Court on November 25,
1980, pursuant to the Order of this Court
entered October 31, 1980, directing that a
further hearing be held to determine
appropriate instructions to be issued to the
Watermaster concerning the management of the
reservoir facilities of the Yakima
Reclamation Project during the non-irrigation
period of October, 1980, to March/April,
1981; in view of certain Spring Chinook
-64-
Salmon spawning beds (hereafter referred to
as “redds") having been located in that
portion of the upper Yakima River lying
between the confluences of the Lake Cle Elum
River and the Teanavay River and the Yakima
River; and
The Watermaster, William R. Gray,
appearing by Robert M. Sweeney, Assistant
United States Attorney, and the United States
appearing by George D. Dysart, Attorney,
Lands and Natural Resources Division,
Department of Justice; and the Confederated
Tribes of the Yakima Nation, Amicus,
appearing by James B. Hovis and Timothy
Weaver, Attorneys at Law; and various
irrigation districts named in the 1945
consent decree entered in this proceeding
appearing by Donald H. Bond, Dennis L.
Fluegge, Charles C. Flower, J. Jarrette
=¢5~—
Sandlin, V. J. Beaulaurier, J. M. McArdle,
Thomas Nelson, Robert M. Leadon, and H. K.
Dano, Attorneys at Law.
me It appearing to the Court as follows:
Awe That in September, 1980, certain
return Spring Chinook Salmon migrated up the
Yakima River and spawned in portions of the
upper Yakima River and fish biologists have
located and identified some sixty spawning
redds in that reach of the Yakima River lying
between the confluences of the Lake Cle Elum
River and the Teanaway River; and
2. That following hearing on October
29, 1980, this Court on October 31, 1980,
entered Instructions to the Watermaster
which, among other things, directed the
Watermaster to maintain a flow of water of
approximately 650 c.f.s. in that portion of
the Yakima River lying between the
-66—
confluences of the Lake Cle Elum River and
the Teanaway River so as to protect and
safeguard as nearly as possible the Spring
Chinook Salmon spawning redds in that reach
of the River; and also directed that further
hearing in the matter be held commencing on
November 25, 1980; and
Sie That certain of the aforementioned
sixty salmon redds lying in certain side
channels or on the periphery of the Yakima
River channel are in immenent danger of
damage and that measures could be taken to
safeguard these redds by channeliza-
tion of water flows and transfer of certain
redds to more protected areas of the River,
if such measures are implemented on an
emergency basis; and
4. The United States appeared herein
and advised this Court that the Secretary of
=67-
the Interior, among other th’ngs, recommends
that sufficient waters be maintained in the
Yakima Rikon to provide nearly as possible
for the development of the redds and the
emergence of fry and that the stream
conditions and reservoir releases. be
monitored to provide such protection as may
be appropriate upon the advice of biologists
of the United States.
Ss That it is appropriate that the
provisions of paragraphs 1 and 2, at page 3,
of this Court's Instructions to _ the
Watermaster entered October 31, 1980, be
continued in effect through the remainder of
the non-irrigation season, as supplemented
hereafter, NOW THEREFORE,
IT IS ORDERED AND DECREED AND THE WATER-
MASTER IS INSTRUCTED as follows:
-68-
i That for the remainder of the 1980
to 1981 non-irrigation season, a sufficient
flow of water approximating 650 c.f.s. (as
measured by, the Bureau of Reclamation gauging
station on the Yakima River at Cle Elum)
shall be maintained in that portion of the
Yakima river lying between the confluences of
the Cle Elum River and the Teanaway River to
protect and safeguard as nearly as possible
the Spring Chinook Salmon spawning area in
that reach of the Yakima River; PROVIDED,
however, that the Watermaster is authorized
to regulate the flow in the aforementioned
reach of the Yakima River in such amounts
below 650 c.f.s., (as measured at the Bureau
of Reclamation gauging station on the Yakima
River at Cle Elum), as the Watermaster in his
discretion may find consistent with
protection of the spawning area after consul-
-69=-
tation with fish biologists of the Fish and
Wildlife Service and the Yakima Tribe, and
including Doctor Ernest A. Brannon and Dr.
Victor W. Kaczynski,
2« That the Watermaster shall consult
as soon as possible with the above-identified
biologists and shall expeditiously undertake
such protective measures as the Watermaster
finds appropriate, including the following:
a. Transfer of the salmon eggs in
those redds (approximately 12) found to be in
imminent danger of damage to an appropriate
area of the Yakima River as recommended by
Drs. Brannon and Kaczynski.
b. Construct berms at the entry into
certain side channels to deflect waters into
such channels as recommended by Drs. Brannon
and Kaczynski.
~7R~
Cc. Open the effluent ends of such side
a
channels as recommended by Drs. Brannon and
Kaczynski.
36 That the Watermaster shall continue
to consult with the above-identified
biologists so as to provide for the
continuing monitoring of the conditions of
the salmon redds and the flows in the Yakima
river with the view by the Watermaster in
exercise of his informed discretion to
provide for reduction in flows of the river
insofar as such reduction may be consistent
with the protection of the spawning area.
4. That the parties to this matter,
and the Watermaster, shall study and report
to the Court prior to the 1981 irrigation
water delivery season on means by which the
needs of the Project water users can be met
through more efficient or less extensive use
=Fi-
of Project waters or by modification of
Project operations or facilities so as to
have less impact on the fisheries resource,
including the possibility of management of
the various Project reservoirs and releases
of water so as to provide for appropriate
water flows during the spawning and hatching
periods that may be practicable while at the
same time providing water for irrigation
purposes for users within the Project area.
DATED this 28 of November, 1980.
/s/ Justin L. Quackenbush
UNITED STATES DISTRICT JUDGE
Presented by:
/s/ Robert M. Sweeney
Assistant United States Attorney
Attorney for Watermaster
P. O. Box 1494
Spokane, WA 99210
Telephone: (509) 456-3811
>
Vol. 38 - Page 604
WASH INGTON
It appearing by the report of the Joint
Congressional Commission, created under
section twenty-three of the Indian
Appropriation Act, approved June thirtieth,
nineteen hundred and thirteen (Senate
Document Number Three hundred _= and
thirty-seven, Sixty-third Congress, second
session), that the Indians of the Yakima
Reservation in the State of Washington, have
been unjustly deprived of the portion of the
natural flow of the Yakima River to which
they are equitably entitled for the purposes
of irrigation, having only been allowed one
hundred and forty-seven cubic feet per
second, the Secretary of the Interior is
o73=
hereby authorized and directed to furnish at
the northern boundary of said Yakima Indian
Reservation, in perpetuity, enough water, in
addition to the one hundred and forty-seven
cubic feet per second heretofore allotted to
said Indians, so that there shall be, during
the low-water irrigation season, at least
seven hundred and twenty cubic feet per
second of water available when needed for
irrigation, this quantity being considered as
equivalent to and in satisfaction of the
rights of the Indians in the low-water flow
of Yakima River and adequate for the
irrigation of forty acres of each Indian
allotment; the apportionment of this water to
be made under the direction of the Secretary
of the Interior, and there is hereby
authorized to be appropriated the sum of
$635,000 to pay for said water to be covered
@-F4~
into the reclamation fund; the amount to be
appropriated annually in installments upon
estimates certified to Congress by the
Secretary of the Treasury. One hundred
thousand dollars is hereby appropriated to
pay the first installment of the amount
herein authorized to be expended, and the
Secretary of the Interior is hereby directed
to prepare and submit to Congress the most
feasible and economical plan for the
distribution of said water upon the lands of
said Yakima Reservation, in connection with
the present system and with a view to
reimbursing the Government for any sum it may
have expended or may expend for a complete
irrigation system for said reservation.
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For operation and maintenance of the
irrigation system on lands allotted to Yakima
Indians in Washington, $15,000, reimbursable
in accordance with the provisions of the Act
of March first, nineteen hundred and seven.
Act of August 1, 1914.
38 Stat. 582, 604
-76<-
STATEMENT TO THE COURT
Foreword
This action was instituted for the
purpose of having the court determine whether
the United States is obligated to deliver
water without charge to land within the
Sunnyside Valley Irrigation District situated
in the Yakima Reclamation Project in excess
of that which the Bureau of Reclamation had
determined the landowners were entitled to
under water contracts which they hold. The
court was further requested to determine,
assuming that it ruled in favor of the water
users, as to the extent and nature of their
rights so far as they relate to the rights of
other users who are involved in the
proceedings.
During the pendency of the instant case,
the United States Circuit Court of Appeals
=77J=
for the District of Columbia rendered its
decision in the case of Fox V. Ickes, 137 F.
(2d) 30, certiorari denied, 320 U. S. 792.
The court in that case had before it for
interpretation and construction the contracts
of certain of the users within the Sunnyside
Valley Irrigation District. The decision
held in effect that the rights of the
appellants in the proceeding, under their
contracts, were to be determined on the basis
of beneficial use and that the Bureau of
Reclamation was without authority to increase
the charges specified in the contracts of
those users. That Gecision rendered moot the
first proposition before the court in the
case under consideration and left only the
matter of the respective rights of the water
users within the project undeter-
=-78-
mined. Under the circumstances created by
the foregoing decision it seemed very
desirable to settle amicably the remaining
phase of the controversy thus dispensing with
extended litigation which would, as a result
of cross complaints filed by certain of the
defendants, necessitate an adjudication of
~the Yakima River. Accordingly, negotiations
were undertaken which have resulted in the
approval of a consent judgment by the
attorneys for the litigants.
The proposed judgment in so far as it
pertains to the parties before the court
grants judicial recognition of those rights
in the natural flow of the Yakima River which
existed at the time the construction of the
Yakima Project was undertaken; it likewise
grants recognition of the rights of the users
whose claims are based upon contracts with
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the Bureau of Reclamation; it establishes a
formula for proration, dependent upon the
nature of the rights involved, during a
period when the available supply of water is
inadequat~ to meet the needs of all of the
water users; it enjoins and restrains the
parties before the court from contesting or
otherwise interfering with the rights
thereunder recognized; and it retains to the
court jurisdiction so far as essential for
proper administration and for the purpose of
appointing a watermaster if in its discretion
such appointment is necessary. The consent
judgment does not in any way affect an
adjudication as to the priority of the
respective water users in the action in so
far as they relate to other users of water
from the Yakima River who are not litigants.
Further, administrative acceptance of the
-80-
judgment by the interested agencies cf the
United States, the Bureau of Reclamation and
the Office-of Indian Affairs, has been
expressed.
Summary of Facts and Legal Aspects
with Respect to the Rights of the
Parties to the Action.
The Yakima Reclamation Project,
hereafter referred to as the Project, was
originally initiated by the Bureau of
Reclamation pursuant to the provisions of the
Reclamation Law (43 U.S.C. 371), hereafter
referred to as the Reclamation Law. The
required investigation of the Project was
undertaken in the year 1905 and its construc-
tion was started shortly *fter that date.
For the purposes of administration the
Project was divided into the Sunryside
Division composed of several irrigation
districts, Tieton Division which is
~8i-
administered by the Yakima-Tieton Irrigation
District, Roza Division administered by the
Roza irrigation District, Kittitas Division
administered by the Kittitas Reclamation
District, and the Wapato Division which is
situated within the Yakima _ Indian
Reservation.
The normal flow of the Yakima River
which constitutes the source of supply for
the lands susceptible of irrigation within
the Project is insufficient to meet the nceds
of all the water users during the months of
July, August, and September. To remedy this
situation the Bureau of Reclamation undertook
the construction of storage reservoirs to
impound the early spring run-off and flood
water. The records kept by the Bureau of
Reclamation disclose that the original plans
for the development of the Yakima Project
~§2-
contemplated the construction of all five of
the divisions to which reference has been
made. It further appears that the water for
which the United States made its filing of
intention to appropriate was for the Project
as a whole.
At the time the construction work was
initiated, it is still being continued in the
Roza Division, lands within the Sunnyside
Division in what is now part of the Sunnyside
Valley Irrigation District, were being served
by the Washington Irrigation Company. The
United States acquired the irrigation system
of that company subject to the interests of
the water users served by the company who
held contracts for specific quantities of
water. The carrying capacity of the
Washington Irrigation Company's canal was at
the time of transfer to the United States
~§3<
approximately 650 c.f.s. The rights of these
users were based upon a filing made by a
predecessor of the Washington Irrigation
Company which expressed an intention of the
appropriator to ultimately divert 1,000
c.f.s. of water. The transfer to the United
States was completed prior to the time that
the full 1,000 c.f.s. filed on by the Company
was applied to beneficial use and while it
was diverting about 815 c.f.s.
In addition to the direct flow right
arising from the appropriation of the
Washington Irrigation Company, or its
predecessor, to which the lands within the
Sunnyside Valley Irrigation District are
-entitled, the United States has in the past
recognized an additional 25 c.f.s. known as
the Prosser Falls Land & Power Company right.
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Pursuant to its plan the Bureau of
Reclamation enlarged and extended the canal
which it had acquired from the Washington
Irrigation Company to serve an additional
area approximately as large as the acreage
which receives water from the original
system. The landowners within the area
served by the extended and enlarged canal
contracted with the Bureau of Reclamation
pursuant to the Reclamation Law for their
supply of water. These rights are referred
to as public notice rights. Certain of
the users within the area who had pre-
viously received their supply of water
from the original system through contract
with the Bureau of Reclamation acquired
additional rights to supplement those for
which they had already contracted. Such
rights are referred to as supplemental
-85-
rights. Other users refused to contract with
the Bureau of Reclamation basing their claims
to water on their original contracts with the
Washington Irrigation Company. There are,
therefore, within the Sunnyside Valley
Irrigation District four types of water
rights: (a) those based on original
contracts with the Washington Irrigation
Company; (b) those referred to as
supplemental rights; (c) the public notice
lands; and (d) Warren Act Lands. Therefore,
without including the public notice lands the
users within the Sunnyside Valley Irrigation
District have water rights aggregating
approximately 640 c.f.s. which have in the
past been recognized by the United States.
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As part of the original development
under the Reclamation Law the Bureau of
Reclamation undertook the development of the
Yakima-Tieton Division. The rights of the
users within that Division are identical in
character with the public notice rights in
the Sunnyside Valley Irrigation District.
The division in question has in the past
diverted a maximum of about 330 c.f.s. Due
to the limited carrying capacity of the
system and the large proportionate acreage
served by that system, in a normal year the
water users receive a supply which is
considered to be a minimum for crop
production.
Subsequent to the development of the
Sunnyside and Tieton Divisions the Bureau of
Reclamation constructed additional storage
reservoirs to serve the water users within
=-87~
the Yakima Project. Pursuant to the Act of
February 21, 1911, Ch. 141, 36 Stat. 925, 43
U.S.C. 523 et seq., hereafter referred to as
the Warren Act, the Secretary of the Interior
was authorized to contract for the
disposition of stored water in excess of the
needs of the project, preserving, however, "a
first right to land and entrymen under the
project." The quoted provision would in the
instant case apply to water users ia the
Sunnyside Valley Irrigation District and the
Tieton Division. Although never formally
passed upon by the courts, the Warren Act
appears to vest in the project users a
priority over the Warren Act contractors. In
the administration of its projects the Bureau
of Reclamation has recognized such a priority
between public notice rights and Warren Act
rights.
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The water which was developed pursuant
to the Warren Act was sold under contract to
the Kittitas Reclamation District, the Roza
Irrigation District, to the irrigation
districts within the Sunnyside Division which
are set forth in paragraph 3 of the judgment
other than the Sunnyside Valley Irrigation
District, to those districts referred to in
the judgment commencing at paragraph 8
through paragraph 16, exclusive of the
Cascade Irrigation District, to the Indian
Service and to certain other users not
parties to the suit. 7
In most instances, the Warren Act
contracts themselves specifically recognize
the priority of the water users within the
Sunnyside Valley Irrigation District who base
their claims to water on contracts originally
entered into with the Washington Irrigation
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Company. Also the contracts, although
somewhat ambiguous on the point, disclose
language which might well have been intended
to concede to the holders of public notice
rights in the Sunnyside Valley Irrigation
District and the Tieton Irrigation District a
Similar priority. |
Further, with respect to the rights of
the users in the Sunnyside Valley Irrigation
District and the Tieton Division, there is no
doubt that they had placed to a beneficial
use quantities of water at least equal to
that which they will receive pursuant to the
proposed consent judgment which will not be
subject to proration with Warren Act users.
In addition to the water rights to which
reference is made above, there is involved in
the litigation the right of the Yakima Indian
Reservation to a supply of water from the
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Yakima River. By the Act of August l, 1914,
Ch. 222, 38 Stat. 582, the Congress of the
United States claimed for the tribe in
question 720 c.f.s. of water in the low water
flow of the Yakima River. Over and above the
720 c.f.s. the Yakima Reservation receives
350,000 acre feet of water pursuant to
agreements entered into between the Bureau of
Reclamation and tic Office of Indian Affairs.
These later rights are derived from water
made available as the result of the
furnishing of storage capacity under the
Warren Act. In the proposed consent
judgment, the rights last mentioned to which
the Indians are entitled are considered in
the same light and are subject to the same
limitations as other Warren Act rights.
Over and above the foregoing rights
there is another class of claims to water
=9}-
from the Yakima River which are affected by
the judgment. They, like the claims of the
Washington Irrigation Company and the Prosser
Falls Land & Power Company claim, were
initiated prior to the time that development
of the Yakima Project was undertaken. In
most instances these claimants by instruments
called limiting agreements, executed in
consideration of the construction of the
project by the United States, defined the
maximum quantities which those users would
divert from the source of supply under their
appropriation. The judgment recognizes these
claims and also the rights of other claimants
on the river who, although having refused to
sign limiting agreements, have perfected
rights of which the Bureau of Reclamation has
always taken cognizance.
-92=
A factor important in attaining the
settlement contained in the proposed judgment
was the willingness of the Kittitas
Reclamation District to release back to the
United States certain of the water which it
presently holds under contract for sale to
other districts within the Project. The
interest or responsibility of the United
States, however, is not affected by transfer
of the rights as it will merely look to the
purchasers for the payments which the
Kittitas District was formerly obligated to
make.
The consent judgment provides a basis of
apportionment of the available supply of
water which has been agreed to by the
principal diverters from the stream. By the
entry of the consent judgment there will be
established a basis upon which the Bureau of
~-93—
Reclamation or a watermaster if one is
appointed may divert to the users quantities
of water agreed upon by them without the
danger of encroaching upon the legally
constituted rights of other users within the
Project. Briefly the consent judgment as
drafted fixes the rights of the parties as
among themselves as follows:
(a) There is recognized in the
Sunnyside Valley Irrigation District a right
to 725 c.f.s. of water which will not be
subject to proration with the Warren Act
users in a period of shortage. Of this
quantity 50 c.f.s. may be measureable return
flow from the Roza Division thereby affecting
what may in the future be an appreciable
reduction of that district's claim to water
from storage and natural flow. It has been
estimated by the Bureau of Reclamation that
a§4-
the recognition in the Sunnyside Valley
Irrigation District of a right to 725 c.f.s.
undiminished in a period of inadequate supply
will insure that district of a quantity of
water within 6% of normal during a period of
one-third shortage.
(b) There is recognized in the proposed
consent judgment the rights of the Tieton
Division to 250 c.f.s. which has the same
status as the rights of the Sunnyside Valley
Irrigation District which are exempt from
proration. This is a reduction of 80 c.f.s.
from the maximum quantity which that division
has in the past diverted. If the judgment is
entered as drafted in a period of one-third
shortage it has been estimated by the Bureau
of Reclamation that the division in question
would experience a reduction from normal of
approximately 10%. However, there has been
-95.-
transferred 18,000 acre feet from the
Kittitas Reclamation District to the Tieton
Division. It is probable therefore that the
Tieton Division will not be forced to
experience any reduction below normal supply
in a period of extreme shortage.
(c) The Indian Service, for reasons
above expressed, will receive an undiminished
right to 720 c.f.s. The comments made with
respect to the Warren Act users hereafter set
forth will apply to the balance of the rights
to which the Indian Service is entitled under
the judgment.
(ad) All of the rights to direct flow
which have previously been recognized by the
United States other than those specified are
likewise exempt in full from proration by the ©
judgment in so far as Warren Act users are
concerned.
-96-
(e) The judgment recognizes the rights
of Warren Act contractors to water in the
amount specified in their contracts subject
to the priorities set forth in the foregoing
paragraphs (a), (b), (c), and (d). Ina
period of shortage these users must
ultimately accept a proportionate reduction
based on a formula set out in the judgment.
The rights of the Sunnyside Valley Irrigation
District and the Tieton Division, except as
to the quantities exempt from proration, will
likewise be subject to reduction based on the
same formula.
The parties to the suit are, by the
judgment, enjoined from asserting claims
against each other or their successors and
assigns in so far as the water rights covered
by the judgment are concerned. The judgment
does not, however, affect the rights of such
«9?
parties or users who are not within the
jurisdiction of the court in the present
proceeding. In addition, provision is made
for the appointment by the court, if in its
discretion such appointment is necessary, of
a watermaster to be vested with such
authority as the court deems appropriate in
the administration of the Yakima Project.
The court further retains jurisdiction over
matters arising in the administration of the
rights of the parties affected by the
judgment and for the purpose of interpreting
the provisions set forth in the judgment.
/s/ Edwin M. Connelly,
U.S. Attorney
/s/ William H. Veeder,
Department of Justice
/s/ D. G. Tyree,
Asst. Regional Counsel
Bureau of Reclamation
-98-
IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT OF WASHINGTON
SOUTHERN DIVISION
Kittitas Reclamation
District, et al.,
Civil Action
No. 21
Plaintiffs,
vs.
Sunnyside Valley Irriga-
tion District, et al.,
Defendants.
me ee ee ee ee ee ee ee ee See ee
IN THE MATTER OF THE ENTRY OF A
CONSENT DECREE
BE IT REMEMBERED that the above entitled
and numbered cause came on for hearing in the
matter of the entry of a consent decree,
before the Honorable L. B. Schwellenbach,
Judge of the above entitled court, sitting at
Yakima, Washington, at the hour of 9:10
o'clock p.m., January 31, 1945, the parties
hereto appearing as follows: Mr. Edward M.
Connelly, Unite? States Attorney for said
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District, appearing for the United States of
America; Mr. D. G. Tyree, Assistant Regional
Counsel, Bureau of Reclamation; Mr. William
H. Veeder, Attorney for the Department of
Justice; Mr. F. A. Kern, appearing on behalf
of the Kittitas Reciamation District; Mr.
Hugo F. Luhman, appearing on behalf of Selah
& Moxee Irrigation District, Terrace Heights
Irrigation District, and Yakima Reservation
Irrigation District; Mr. V. O. Nichoson,
appearing on behalf of Roza Irrigation
District; Mr. C. P. Short, appearing on
behalf of the West Side Irrigating Company
and Cascade Irrigation District; Mr. John H.
Lynch, appearing on behalf of Broadway
Irrigation Company; Mr. Stephen E. Chaffee,
appearing on behalf of Sunnyside Valley
Irrigation District, Christina Mariea, Luis
Luccolini and Euffemia Luccolini, his wife,
-100-
Mazine E. Fox and Josie R. Fox, his wife,
Elmer A. Bacon and Artie Bacon, his wife,
Phillip Louis Parks and Ollie D. Parks; his
wife, Grandview Irrigation District, Granger
Irrigation District, Prosser Irrigation
District, Snipes Mountain Irrigation
District, Outlook [Irrigation District,
Yakima-Tieton Irrigation District, Tieton
Water Users Association, and Zillah
Irrigation District;
WHEREUPON the following proceedings were
MR. CONNELLY: May it please the Court in the
case of Kittitas Reclamation District, and
others, vs. Sunnyside Valley Irrigation
District, and others, being Civil Cause No.
21, I wish to present to the Court the motion
of the United States for an order for joinder
-101-
of a new defendant. The new defendant is the
Cascade Irrigation District. I am basing the
motion upon the consent of the directors of
that district, previously filed, to the entry
of such an order, making the Cascade
Irrigation District a party to this action.
Later it will appear that the Cascade
Irrigation District consents to the entry of
a decree which includes it as a codefendant.
THE COURT: All right; I will sign this
order.
MR. CONNELLY: I now wish, if your Honor
please, to move the admission to practice in
this court, for the purposes of this
proceeding only, Assistant Attorney General
William H. Veeder, of the Lands Division of
the Department of Justice, at Washington,
-~102-
D.C., and D. G. Tyree, Assistant Regional
Counsel of the Bureau of Reclamation. They
are the attorneys who with these other
gentlemen have effected this settlement, and
who have worked out the details, and who, if
the Court wishes to ask for details concern-
ing the provisions of the decree, would be
better fortified to answer them than I would
be.
THE COURT: The motion to appear in this
case is granted.
MR. CONNELLY: This was read to me after it
was signed. I knew what it is, Your Honor.
I would like to file it, with a motion for
entry of final judgment in the action
referred to, and in order to show the consent
of Harry Olson, and the clients whom he
-1035=
represents, I would like to file this
telegram, with the motion for entry of final
judgment, which I now hand to the Court, with
the proposed judgment attached, and this, I
understand, is on the agreement that Mr.
Olson will sign the formal motion when he
returns to Yakima.
We have prepared a rather extendec
summary of this judgment, if Your Honor
please, but I hbhelieve that the preliminary
statement of facts to the court, and the
concluding statement of the order and
judgment itself, together with any
information which the Court may wish to
elicit from the counsel who have worked
extensively and actively on it, or from Mr.
Ball, would suffice, rather than the reading
of this ten-page statement.
-104-
THE COURT: I want to say this, as you all
recognize this is a very important piece of
litigation, which has been prosecuted in a
number of courts in its different aspects for
a number of years. I do not anticipate that
it will be possible for me to familiarize
myself with all of the facts which are
involved in this litigation. I do not
anticipate that there will be any necessity
for that. However, I do take this position
in this case, as I have in every case, that I
have the responsibility of knowing what I am
doing when I sign my name to an order or
judgment or decree. I have to understand
what it is about. When counsel for the
various parties get together and effect a
settlement, my attitude is one of the utmost
sympathy with settlement. I do not ask for
an explanation with the idea of interposing
-105-
an objection to it, but for the simple reason
that { believe if I sign a judgment in this
case, even though it has been agreed to by
all the parties, that I have the
responsibility of knowing what it is about,
and I want a sufficiently complete statement
so I will be satisfied in my own mind I am
doing what I should do.
MR. CONNELLY: I shall read all I have then.
I was economizing on time.
THE COURT: Do not read it too fast.
MR. CONNELLY: I shall not, Your Honor.
2s
The omitted colloquy consists of a
verbatim reading by Mr. Connelly of the
-106-
"Statement to the Court" reproduced at pages
A-77 to A-98 of this Appendix.
2 =
I would like to file that in the
proceedings.
THE COURT: All right. Let us start out
with this Indian business. Is that all in
the Wapato Division, Mr. Veeder? I say, are
all the Indian rights under that?
MR. VEEDER: Yes, sir; paragraph 4, page 15
of the judgment.
THE COURT: In this 1914 Act the 720 cubic
feet of water per second is the amount
Congress fixed?
-107-
MR. VEEDER:, Yes, sir. I might call
attention to the fact that the judgment has
been reviewed by the Department of the
Interior, which represents the Indian
Service, and all the articles have been
reviewed and approved.
THE COURT: Do you consider that you
represent the point of view of the Indian
Service, Mr. Tyree?
MR. TYREE: No, sir.
MR. VEEDER: The Department of Justice
represents the Indian Service, and Mr. Tyree
represents the Bureau of Reclamation.
THE COURT: In addition to this 720 cubic
feet they have 350,000 acre feet, and the
-108-
judgment provides for 250,000 acre feet, and
100,000 acre feet.
MR. VEEDER: Yes, Your Honor. There are
two contracts, one the original contract for
250,000--I beg pardon--in the contract of
March 9, 1921, there are 250,000 feet, and
subsequent to that a contract for 100,000
feet was entered into, making an aggregate of
350,000.
THE COURT: When it says "the agreement of
March 9, 1921, as amended by the agreement of
September 3, 1936", that means instead of
being 250,000 feet, it was 350,000.
MR. VEEDER: No; that is the amendment in
the contract. In the contract it is 250,900
acre feet, and on page i4, the final
~109-
paragraph, there is set forth a reference to
the other contract which was entered into on
September 3, 1936, for 100,900 acre feet.
THE COURT: That is an amendment.
MR. VEEDER: No; that is another contract.
THE COURT: There are two contracts on
September 3, 1936?
MR. VEEDER: That is correct.
THE COURT: Do these contracts, in so far
as they refer to the 250,000 feet, or the
250,000, plus the 100,000 feet, recognize
that the rights of the Indians were subject
to the same limitations as anyone else, under
the Warren Act?
-110-
MR. VEEDER: Yes, sir. There is a
provision in the contract that it is subject
to proration.
THE COURT: So the 1945 contract does not
add any new element.
MR. VEEDER: That is right.
THE COURT: All right. Turn to page 2 of
this statement. What I want to do is to go
from this statement to the judgment. Where
the statement says something, I want you to
show me where the judgment covers it. Maybe
we had better do that further along in the
statement.
MR. VEEDER: Page 7.
-lll-
THE COURT: "The consent judgment provides
a basis of apportionment of the available
supply of water which has been agreed to by
the principal diverters from the stream. By
the entry of the consent judgment there will
be established a basis upon which the Bureau
of Reclamation, or a watermaster, if one is
appointed, may divert to the users quantities
of water agreed upon by them without the
danger of encroaching upon the legally
constituted rights of other users within the
Project." Where is this watermaster
provision?
MR. VEEDER: That is the final paragraph on
page 30.
THE COURT: You did not feel it necessary
or proper to have anything in the judgment
-1li2-
which would establish any procedure by which
the Court could appoint a watermaster?
MR. VEEDER: That was left entirely to the
discretion of the Court, on application by
the interested water users.
THE COURT: Well, suppose I wake up some
morning and conclude I want a watermaster.
MR. VEEDER: I think the judgment provides
you could appoint one.
THE COURT: I was wondering if you should
not have some provision that somebody ought
to ask for it before the Court could appoint
a watermaster.
-113-
MR. VEEDER: We went into rather an
extended discussion at that time among the
attorneys, and I think it was the consensus
that if at any time it was not on the water
users' desire, it would be on your own
motion. The Court could appoint a water-
master. The mechanics were not set up.
THE COURT: eo has received full
consideration?
MR. VEEDER: I think it has. That was
fully discussed.
THE COURT: All right. Then start at the
bottom of page 7: "There is recognized in
the Sunnyside Valley Irrigation District a
right to 725 cubic feet per second."
-114-
MR. VEEDER: The reference to the Sunnyside
Valley Irrigation District will be found at
page 28 at the top of the page, subparagraph
5.
THE COURT: Mr. Chaffee, is it in
accordance with the understanding of the
Sunnyside Valley Irrigation District that the
estimate of the Bureau of Reclamation of 725
cubic feet per second will keep within 6% of
normal?
MR. CHAFFEE: It is substantially that, if
the Court please. You see, the Sunnyside
Valley Irrigation District has about 77,000
sii There will be some run-back from
Roza. I might state while I am on my feet,
in connection with the Sunnyside Valiey
Irrigation District, in reference to this
#“115-
point, and the other points involved, that
that judgment is very satisfactory, because
it in substance recognizes all the Sunnyside
Valley Irrigation District has contended for
over a period of twelve years' litigation.
First, it recognizes beneficial use or past
use as the measure of water rights. Second,
the contract entered into provides there
shall be no additional construction charge,
and, third, it recognizes the rights of
priority that substantially protects the
rights-- it is so nearly up to the full
amount that it is far better for the
Sunnyside Valley Irrigation District to
accept it than to litigate for additional
priority--and, as a matter of fact, it is all
the Sunnyside Valley Irrigation District has
contended for.
-116-
This litigation arose really on three
different points. First, the issuance of a
public notice deprived the Sunnyside Valley
Irrigation District water users of 25% of
their rights, and charges them with a million
dollars of construction charges, and, third,
refuses to recognize any priority.
Now, this judgment, in the judgment and
in the contract--and, by the wayy in most of
these districts a contract containing the
same provisions that are contained in this
consent judgment, have been voted on
favorably by the water users. The Tieton
Water Users Association, which I represent,
the vote was twenty to one in favor of the
proposed settlement, and at least two or
three to one in all the rest of the
districts; but in substance this decree and
the contract grant all the relief we asked as
-ll7-
to the measure of our rights in a normal
year, and also no additional construction
costs, and, thirdly, the full amount--or
nearly, within 6 to approximately 8% in a
year cf water shortage, where there is a
33-1/3 shortage. And we have some other
rights to waste wate.', and we are below the
road to a certain extent, and I might say for
the Sunnyside Valley Irrigation District--and
I might say I am one of the proposers of this
consent judgment in the first instance, and
representing the Tieton Water Users
Association, it is very highly satisfactory.
It was oubas tad to the Board of
Directors and passed upon unanimously by the
Trustees of the Water Users Association, and
passed upon unanimously in favor of it by the
Tieton Water Users at an annual meeting.
-119-
And so this proposed settlement has been
‘carefully considered at the meetings of the
Sunnyside Valley Irrigation District. There
was a series of meetings held prior to the
time the contract was voted on, and it was
fully explained, and the Directors sent out a
statement explaining the settlement, and
these water users of the various districts up
and down the Valley are thoroughly acquainted
with it, and they are in favor of the
settlement.
In my opinion, it is the most fair and
equitable adjustment that could be obtained,
saving expensive litigation. This will
release some of the Kittitas water supply and
supplement the Tieton, so the Tieton would
not be the bottleneck, and receive
approximately the fr'l amount in a
short-water year--the iull amount that they
-119-
needed, to keep their orchards alive. That
is something that could not be worked out by
litigation. The small districts receive
12,000 feet additional supply. MThat will
give them a greater base to prorate on. Some
things that might have been sore spots have
been ironed out in this proposed consent
judgment, and it covers the situation quite
completely, and in effect there is an
adjudication of the water rights of the
Yakima River and its tributaries.
I do not think such a thing has ever
been worked out before, where there are water
rights so extensive as in the Yakima River,
and adjudicated by a consent judgment like
this, and this is probably the last one of
any consequence to be adjudicated. It seems
to me it is a very happy solution of this
dispute that has been extending for a long
-120-
period of years, and I think it will work out
to the benefit of the Yakima Valley as a
whole and the water users in the Valley.
THE COURT: At the bottom of page 27, the
250,000 cubic feet per second, Tieton?
MR. CHAFFEE: That is very satisfactory to
the Tieton people, as I said.
THE COURT: Now "B", page 8, Mr. Veeder?
MR. VEEDER: This is referred to as the
limiting agreement, which at the time of the
institution and construction of the Yakima
Project was signed by the users that had a
direct flow at the time the construction was
started.
-121i-
This judgment leaves those rights
intact, and recognizes they are subject to
judicial recognition. Those limiting
agreement rights were very largely covered by
contracts which the water users had. In
other words, when they contracted for certain
storage rights, the contract also recognizes
the rights they had to the direct flow from
the Yakima River.
THE COURT: That is covered by the
paragraph on the top of page 20?
MR. VEEDER: Yes, Your Honor.
THE COURT: Does that answer the question
that I have to ask sometime? You have an
agreement here between certain water users by
districts. I do have to be sure you have not
-122-
——a er eee ee Nee eS et ee,
ee
taken away from people who are not parties to
this action their rights in the division
between the parties to the action.
MR. VEEDER: We have tried to cover that
very explicitly throughout the judgment, and
we have made a provision that these rights
that are not covered are in no way affected.
That is set forth in paragraph No. 20.
THE COURT: "The rights of any of the
claimants to water of the Yakima River."
MR. VEEDER: It is on page 20.
THE COURT: That is what I am reading.
"The rights of any of the claimants to water
of the Yakima River or water shed who are not
parties to this cause, shall in no way be
-123-
appearing for Roza Irrigation; C. P. Short,
appearing for West Side Irrigating Company,
and Cascade Ir igation District; John H.
Lynch, appearing for Broadway Irrigation
Company; Stephen E. Chaffee, appearing i *
Sunnyside Valley Irrigation District, and a
number of other parties. I have not had time
to copy them off the motion.
THE COURT: Is there any one of the
counsel who feels there is any matter you
want to present now, any discussion you want
to bring up, or any questions you want to
ask?
MR. LYNCH: If Your Honor please, I
represent a small company that purchased 700
acre feet of water, a private corporation, a
community corporation. It is not organized
-132-
in a district. We have there a contract for
the purchase of Warren Act water, and it
contains general provisions for a proration
of the water in short years, but the method
to be pursued in making that proration is not
definitely specified.
As to all those Warren Act water users,
if they are all on the same plane we have no
objection to being bound by the consent
decree, but if it happens that some of these
Warren Act users are given priority, and
transferred from one section to the other,
and given priorities to Warren Act water held
by some other districts, or something, Ii
would like to have that cleared up, if there
is any such preference.
As I recall it, there are certain waters
that were sold by the Kittitas Reclamation
-133=
prejudiced or affected by the judgment, nor
will it in any way prejudice or affect the
rights of the parties to this judgment as
they may pertain to the rights of such
claimants."
oe ee ee i PH oy Ce OS eee A ae 8 ~~
I do not want to be hypertechnical, but
I am wondering if the words “of the" in the
next to the last line, on page 20, should not
be deleted. Should it not be "the rights of
any claimants to water"? In the first
sentence you say: "This judgment shall
constitute a final determination of the
obligation of the United States to deliver
water from the Yakima River and its
tributaries", and in the second paragraph:
"Each of the parties to this cause, their
grantees, successors and assigns, are by this
judgment forever enjoined and restrained from
asserting any claim to or from interfering
-124-
with the use or the delivery of those
quantities of water which are recognized in
this judgment."
Now, for the purpose of this analysis,
leave out the first sentence, because that
does not refer to it. You go on to say "the
rights of any of the claimants to water".
You are referring up above to claims for
water. "The rights of any claimants to water
of the Yakima River or water shed who are not
parties to this cause.”
MR. VEEDER: Striking out "of the"
immediately after the word "any". I think
your suggestion improves the sentence.
THE COURT: I do not want to do it
unnecessarily, or if it might change the
meaning of it. You are referring to claims
-125-
up above "Each of the parties to this cause
are enjoined from asserting any claim". They
are not claimants and they are enjoined, and
you go on "The rights of any of the claimants
to water who are not parties." You have the
rights to any claim. You would eliminate the
possibility it might refer back to the second
sentence of that paragraph.
MR. VEEDER: I think that would improve it.
I see no reason why it should not be done.
THE COURT: We will tentatively leave that
out. "The judgment recognizes the rights of
Warren Act contractors to water in the amount
specified in their contracts subject to the
priorities set forth in the foregoing
paragraphs a, b, c and d. In a period of
shortage these users must ultimately accept a
“126-
proportionate reduction based on a formula
set out in the judgment.” "The judgment
recognizes the rights of Warren Act
contractors to water in the amount specified
in their contracts." I would like to have
you show me the part of the judgment
supporting that statement.
MR. VEEDER: The judgment throughout
recognizes the Warren Act rights by a resume
in each paragraph, which contains various
amounts, and those users are Warren Act
users, and the quantity of water specified in
each of those paragraphs is the amount of
water the users are entitled to under their
contract.
Now, the judgment recognizes certain
preferential rights. The 725 cubic feet per
second in the Sunnyside Valley Irrigation
-127=-
District; the Tieton Division, 250 cubic feet
per second; the Indian Service, 720 cubic
feet per second. The Warren Act contractors'
rights will be forced to prorate in a period
of shortage, whereas under the judgment those
holding the preferential rights will not be
forced to prorate. The provisions for
proration appear in paragraph 18, on page 26,
in which it is specified these waters which
will be subject to proration. Tn other
words, all the rights that are referred to in
paragraph 18 which will have to sustain a
prorata diminution in case of shortage
pertain to Warren Act users. The remaining
ones have the preference, in accordance with
the judgment.
THE COURT: All right. Now, Mr. Kern, I
would like to have a statement from you. You
-128-
are furnishing the wherewithal. I want a
statement in the record of the attitude of
the Kittitas Reclamation District.
MR. KERN: I might say this, before there was
any work in connection with trying to work
out this consent decree, we had had
negotiations with the Tieton Project to sell
them some of our water.
The acreage in the Kittitas Reclamation
District has been reduced on point
classification of the land, and we would have
this additional water, and we were glad to
dispose of it, and then our schedule was
changed. We had a very large excess of water
before the first of July, and we had to use
up 40% of our water by the first of July, so
that we only had 60% after the first of July.
We did not use the 40%, and that changed our
-129-
schedule and permitted us to use 2% ot more
after the first of July than before the first
of July, and that gives us more water after
the first of July, and that caused 20,000
acre feet of water to be taken from our
supply before the first of July, and 10,000
after the first of July, and with that change
in the schedule it left us in very good
shape.
We are very well satisfied with the
consent decree as drawn.
THE COURT: All right. I would like to
have the record show specifically all of the
signatories to the motion who are here.
Moulton & Powell are not here. I would like
to have the record show who are here.
=-130-
THE CLERK: I have all of the attorneys
who are here.
THE COURT: I would like to have the
record show it, so Mr. Ridenour's record will
show who is here participating in the actual
presentation of this matter.
THE CLERK: XI have those appearing: Mr.
D. G. Tyree, Assistant Regional Counsel,
Bureau of Reclamation; William H. Veeder,
Attorney for the Department of Justice;
Edward M. Connelly, appearing for the United
States of America; F. A. Kern appearing on
behalf of the Kittitas Reclamation District;
Hugo F. Luhman, appearing for Selah & none
Irrigation District, Terrace Heights
Irrigation District, and Yakima Reservation
Irrigation District; V. 0. Nichoson,
=13i-
District from Warren Act water, is that
right?
MR. KERN: Yes.
MR. LYNCH: A portion having been released
by the District, and will be apportioned to
other companies or districts or users, such
as the Tieton, and perhaps some on the
Reservation and some others.
Is it or is it not a fact that those
transfers under the Warren Act will give the
advantage in prorating over the other
companies or districts which have weter
contracts?
MR. CHAFFEE: None whatever.
“134-
MR. VEEDER: There is no preference; they
are all in the same position.
THE COURT: Does anyone else want to
present a question?
MR. VEEDER: What about the language at the
bottom of page 29?
THE COURT: I am going to sign this, and
if you gentlemen decide you wait to leave it
the way it is, it is all right with me, or if
you decide it might be desirable to eliminate
these two words, that may be done. But I
will sign the judgment. I do not want to do
anything which might materially change the
meaning of the judgment. It just seemed to
me there might be some desirability to that,
~135-
Acre-feet
Month Per Acre
April 0.40
May 0.48
June 0.56
July 0.58
August 0.58
September 0.40
Total 3.00
The annual irrigation season shall be
from April to September, inclusive, and the
maximum rate of flow at the said points of
delivery during any one month shall not
exceed the following schedule:
April 14 second-feet
May 16 s 2
June 21 . .
July 21 ” -
August 21 . -
September 14 ‘s "
Provided, however, that water solely
from the natural flow of the Yakima River
will be delivered by the United States during
October, if desired by the District and found
-146-
available by the officer in charge of the
administration of the water supply for the
Yakima project.
The United States or its successor in
the operation of the said Canal, in
accordance with the contract of June l, 1925,
with the Grandview Irrigation District and
the Prosser Irrigation District, shall
deliver to the Prosser Irrigation District
for use upon the 15.21 acres of land, to
which reference is made in said contract,
2.75 acre-feet of water per acre; and the
amount of water to be delivered to the
Grandview Irrigation District pursuant to its
contract with the United States, dated August
4, 1916, shail be reduced by the proportional
amount applicable to the said 15.21 acres and
the amount of water to be delivered by the
United States pursuant to its contract with
-147-
but you gentlemen can talk about it and
decide what you want to do.
MR. CHAFFEE: It is okeh with me. I think
it would clarify it.
MR. CONNELLY: I think it would clarify it,
and I think the suggestion is a good one.
THE COURT: If it is satisfactory to
everybody, I will cross out the words "of
the" and make it read "The rights of any
claimants to water".
I want to congratulate you gentlemen and
to thank you. The possibility of trying to
adjudicate these water rights for the rest of
my life has been hanging over me since May,
1942, and I have had in mind that when we got
through with these Hanford cases I would have
-136-
to start on this matter. I know I could
appoint a master, which is all right, but a
couple of times a month the lawyers would
decide the master needed instruc-
tions or something, and I looked forward to a
ten-year job. I did not relish it very much,
but I think you gentlemen are to be
congratulated. Personally, I wish to thank
you.
-137-
STATE OF WASHINGTON )
COUNTY OF SPOKANE )ss.
I hereby certify that the foregoing is a
true and correct transcript of the
proceedings therein shown, and the whole
thereof, as reported by me in shorthand at
the time and place hereinbefore stated.
Dated at Spokane, Washington, this lith
day of February, 1945.
(Signed) gan Ridenour
Official Court Reporter.
-138-
IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT
OF WASHINGTON, SOUTHERN DIVISION
KITTITAS RECLAMATION
DISTRICT; SELAH & MOXEE
IRRIGATION DISTRICT; and
UNITED STATES OF AMERICA,
Plaintiffs,
vs.
SUNNYSIDE VALLEY IRRIGA-
TION DISTRICT; CHRISTINA
MARIA EDER; LUIS
LUCCOLINI and EUFFEMIA
LUCCOLINI, his wife;
MAZINE Z. FOX and JOSIE
R. FOX, his wife; ELMER
A. BACON and ARTIE BACON,
his wife; PHILIP LOUIS
PARKS and OLLIE D. PARKS,
me ee ee ee ee ee ee ee ee ee See ee ee
)
)
)
his wife; ROZA IRRIGATION)
DISTRICT; YAKIMA RESERVA-)
TION IRRIGATION DISTRICT;
YAKIMA-TIETON IRRIGATION
DISTRICT; TIETON WATER
USERS' ASSOCIATION;
GRANDVIEW IRRIGATION
DISTRICT; GRANGER IRRIGA-
TION DISTRICT; PROSSER
IRRIGATION DISTRICT;
SNIPES MOUNTAIN IRRIGA-
TION DISTRICT; SUNNYSIDE
IRRIGATION DISTRICT;
ZILLAH IRRIGATION DIS-
)
)
)
)
)
)
)
)
)
)
)
)
-139-
NO. 21
J3s9;50:G BRT
TRICT, BROADWAY IRRIGA- )
TION COMPANY, MOXEE DITCH)
COMPANY SUB-A; NACHES- )
SELAH IRRIGATION DISTRICT)
TERRACE HEIGHTS IRRIGA- _ )
TION DISTRICT; UNION GAP )
IRRIGATION DISTRICT; WEST)
SIDE IRRIGATING COMPANY; )
YAKIMA VALLEY CANAL
COMPANY; OUTLOOK IRRIGA-
TION DISTRICT; and
CASCADE IRRIGATION
DISTRICT;
Defendants.
ee ee ee ee ee ee ee ee
The above-entitled cause having come on
for hearing and it appearing to the Court
that the plaintiffs and the defendants have
concluded and settled all issues in this
cause; that the parties hereto have joined in
a Motion for Entry of Judgment; that the
provisions hereafter set forth in this
judgment constitute the agreement of the
parties with respect to such issues; and that
upon consideration of the records herein and
-140-
the Motion for Entry of Judgment the Court
finds that the Motion for Entry of Judgment
should be granted:
NOW, THEREFORE, it is ordered, adjudged
and decreed as follows:
as The defendants, Christina Mariea
Eder, Luis Luccolini and Euffemia Luccolini,
his wife, Mazine Z. Fox and Josie R. Fox, his
wife, Elmer A. Bacon and Artie Bacon, his
wife, Philip Louis Parks and Ollie D. Parks,
his wife, and the Yakima Reservation
Irrigation District are dismissed as
defendants in this cause.
as The obligations of the United
States to deliver water from the natural flow
of the Yakima River, and its tributaries,
from storage in its various reservoirs on the
Yakima watershed, and from other sources, to
the plaintiffs, to the defendants, and to the
-141-
lands within the Wapato Indian Irrigation
Project, are as set forth hereafter in this
judgment.
3. SUNNYSIDE DIVISION.--The United
States shall divert each year into the
Sunnyside Main Canal, hereafter referred to
as the Sunnyside Canal, to supply the water
rights of the parties entitled to receive
water from the Sunnyside Canal in the
Sunnyside Division, a total quantity of
449,520 acre-feet of water on the following
monthly schedule:
-142-
Average Rate of
Diversion in Cubic Diversion in
Feet per Second Acre-Feet
April 895 53,230
May 1,209 74,340
June 1,280 76,150
July 1,290 79,300
August 1,290 79,300
September 995 59,190
October 456 28,010
449,520
The foregoing schedule of diversions shall be
increased commensurate with the quantities of
water to be acquired from the United States
by the Grandview, Outlook, Granger, Prosser
and Zillah Irrigation Districts, as set forth
in paragraph 6 of this judgment: Provided,
however, that the water acquired by these
Districts shall not be diverted into the
Sunnyside Canal when to do so would augment
the schedule of diversions in excess of the
safe carrying capacity of the Canal.
-143-
(a) SUNNYSIDE VALLEY IRRIGATION
DISTRICT.--The United States shall divert
annually into the Sunnyside Canal a total
quantity of 340,944 acre-feet of water to
supply the water rights of said District and
the water users within the District,
including water users who have no water right
applications or contracts with the United
States, on the following schedule:
Average Rate of
Delivery in Cubic Delivery in
Feet per Second Acre-feet
April 658 39,159
May 901 55,409
June 960 57,089
July 973 59,798
August 983 60,439
September 753 44,780
October 612 24,270
(b) PROSSER IRRIGATION DISTRICT.--The
United States shall divert into the Sunnyside
Canal 7,347 acre-feet of water annually,
-144-
which quantity of water includes estimated
losses in said Canal between the point of
diversion and the point of delivery, and the
United States or its successor in the
operation of the said Canal shall deliver
pursuant to the contract dated December l,
1917, with the Prosser Irrigation District,
at riile 55.05 and Mile 59.32 of the Sunnyside
Canal in an amount not exceeding the
following schedule:
-145-
the Prosser Irrigation District dated
December 1, 1917, shall be correspondingly
increased.
The foregoing quantities of water for
the Prosser Irrigation District shall be
increased 2,500 acre-feet upon the execution
of a contract for the acquisition of that
quantity of water by the District and the
United States as provided in paragraph 6 of
this judgment. The increased quantity of
water shall not, however, be diverted into
the Sunnyside Canal when to do so would
augment the schedule of diversions in excess
of the safe carrying capacity of the Canal.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts.
-148-
(c) SNIPES MOUNTAIN IRRIGATION
DISTRICT.--The United States shall divert
into the Sunnyside Canal 9,247 acre-feet of
water annually, which quantity of water
includes estimated losses in said Canal
between the point of diversion and the point
of delivery, to supply the amounts of water
provided for by contracts between the United
States and the Snipes Mountain Irrigation
District dated November 16, 1914, and July
11, 1931. There shall be delivered by the
United States or its successor in the
operation of the Sunnyside Canal a total of
5,265 acre-feet, pursuant to the contract
dated November 16, 1914, between the United
States and the’ Snipes Mountain Irrigation
District, at the following points on the
Snipes Mountain Canal: (a) at Mile 9.05, (b)
at Mile 1(.20, and (c) near Mile 6.42. The
-149-
annual irrigation season shall be from April
to September, inclusive; the maximum rate of
flow at the said points of delivery which the
District may demand during any one month,
based on the following schedule, shall be
17.7 cubic feet per second and the monthly
supply of water shall not exceed the
following monthly scheduled of deliveries:
Acre-feet
Month Total of Contract
April 685
May 840
June 1050
July 1055
August 950
September 685
Total 5265
Provided, however, that water srlely from the
natural flow of the Yakima River will be
delivered by the United States during
October, if desired by the District and found
-150-
available by the officer in charge of the
administration of the water supply for the
Yakima project.
In addition to the water supply provided
for in said contract of November 16, 1914,
the United States or its successors in the
operation of the Sunnyside Canal pursuant to
a contract dated July 11, 1931, with the
District, shall deliver annually a total of
2874 acre-feet at the following points: (a)
Mile 9.05 of the Snipes Mountain Canal; (b)
at Mile 1.15 of the West Branch of the Snipes
Mountain Canal; and (c) near Mile 6.42 of the
Snipes Mountain Canal. The annual irrigation
season shall be from April 1 to September 30,
inclusive, and the mean monthly supply of
water to be furnished under said contract
shall not be in excess of the following
-15l1-
schedule of percentages of the total annual
diversion:
Per Acre-feet
Month Cent Total of Contract
April 10 287.40
May 16 459.84
June 19 546.06
July 21 603.54
August 20 574.80
September 14 402.36
Totals 100 2,874.00
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts.
(ad) GRANDVIEW IRRIGATION DISTRICT.--The
United States shall divert into the Sunnyside
Canal 14,588 acre-feet of water annually
which quantity of water includes estimated
losses in said Canal between the point of
diversion and the point of delivery, to
supply the amounts of water provided for in
-152-
contracts between the United States and
Grandview Irrigation District dated October
4, 1916, and February 21, 1933. The United
States or its successor in the operation of
the Sunnvside Canal shall deliver water
pursuant to the said contracts at Mile 50.35
of the Sunnyside Canal and at Mile 2.87 of
the Rocky Ford branch canal of the said
Sunnyside Canal in an amount not exceeding
the following monthly schedule:
Acre-feet
Month per acre
April - 36
May - 45
June » 52
July «353
August «53
September - 36
Total 2.72
Provided, however, that water solely from the
natural flow of the Yakima River shall be
delivered by the United States during
-153=
October, if desired by the District and found
available by the officer in charge of the
administration of the water supply for the
Yakima project.
The annual irrigation season shall be
from April to September, inclusive, and the
maximum rate of flow at the said points of
delivery which the District may demand during
any one month, based on the above schedule,
shall be 34 c.f.s.
There shall be delivered by the United
States or its successor in the operation of
the Sunnyside Canal in accordance with the
contract of June 1, 1925, with the Grandview
Irrigation District and the Prosser
Irrigation District, to the Prosser
Irrigation District for use upon the 15.21
acres of land, to which reference is made in
said contract, 2.75 acre-feet of water per
-154-
acre; and the amount of water to be delivered
to the Grandview Irrigation District pursuant
to its contract with the United States, dated
August 4, 1916, shall be reduced by the
proportional amount applicable to the said
15.21 acres and the amount of water to be
delivered by the United States pursuant to
its contract with the Prosser Irrigation
District dated December 1, 1917, shall be
correspondingly increased.
The United States or its successor in
the operation of the Sunnyside Canal shall
also deliver each year, in addition to the
water supply provided for in the foregoing
contract of August 4, 1916, pursuant to its
contract of February 21, 1933, with the
District, 1970 acre-feet of water at Mile
50.35 of the Sunnyside Canal. The annual
irrigation season for the delivery of water
-155-
shall be from April 1 to October 31,
inclusive, and the mean monthly supply of
water to be furnished under said contract
shall not exceed the following schedule of
percentages of the total annual diversion:
Per Acre-feet
Month Cent Total of Contract
April 9 184
May 26 501
June 8 151
July 9 186
August 9 186
September 18 362
October 21 400
Total 100 1,970
The foregoing quantities of water for
the Grandview Irrigation District shall be
increased 3,000 acre-feet upon the execution
of a contract for the acquisition of that
quantity of water by the District and the
United States as provided in paragraph 6 of
this judgment. The increased quantity of
-156-
water shall not, however, be diverted into
the Sunnyside Canal when to do so would
augment the schedule of diversions in excess
of the safe carrying capacity of the Canal.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contract.
(e) ZILLAH IRRIGATION DISTRICT.--The
United States shall divert into the Sunnyside
Canal 362 acre-feet of water annually, which
quantity of water inciudes estimated losses
from the point of diversion to the point of
delivery, to supply the amounts of water
provided for in a contract dated September
29, 1922, as amended by the contract of June
22, 1931, between the United States and the
Ziliah Irrigation District. The United
States or its successor in the operation of
-157-
the Sunnyside Canal shall deliver water
pursuant to the said contracts at turnouts
numbered 15.47 and 15.62 and 16.82 on the
Sunnyside Canal and the mean monthly supply
of water shall not exceed the following
schedule of percentages of the total
Giversion:
Month Per Cent
April 9
May 15
June 19
July 19
August 19
September 13
October 6
Total 100
The annual irrigation season for the delivery
of water shall be from April 1 to October 3l,
inclusive, each year.
The foregoing quantities of water for
the Zillah Irrigation District shall be
increased 200 acre-feet upon the execution of
-158-
a contract for the acquisition of that
quantity of water by the District and the
United States as provided in paragraph 6 of
this judgment. The increased quantity of
water shall not, however, be diverted into
the Sunnyside Canal when to do so would
augment the schedule of diversions in excess
of the safe carrying capacity of the Canal.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts.
(f) GRANGER IRRIGATION DISTRICT.--The
United States shall divert into the Sunnyside
Canal 5,454 acre-feet of water annually which
quantity of water includes estimated losses
from the point of diversion to the point of
delivery, to supply the amounts of water
provided for in a contract dated November 20,
-159-
1922, between the United States and the
Granger Irrigation District. The United
States or its successor in the operation of
the Sunnyside Canal shall deliver water
pursuant to said contract during the
irrigation season from April 1 to September
30, inclusive, at the head of the pressure
pipe at Mile 23 of the Sunnyside Canal, said
water to be delivered to the District in
amounts not to exceed the following schedule:
Acre-feet
Month per acre
April 0.40
May 0.46
June 0.56
July 0.58
August 0.58
September 0.40
Total 3.00
The maximum rate of flow which the
District may demand during any one month
shall be as follows:
-160-
Month Rate of Flow
April 10.9 c.f.s.
May 12.6 w
June 15.2 .
July ae a
August 13.2 ‘.
September 10.9 oe
Provided, however, that water solely from the
natural flow of the Yakima River shall be
delivered by the United States during
October, if desired by the District and found
available by the officer in charge of the
administration of the water supply for the
Yakima project.
The foregoing quantity of water for the
Granger Irrigation District shall be
increased 1,800 acre-feet upon the execution
of a contract for the acquisition of that
quantity of water by the District and the
United States as provided in paragraph 6 of
this judgment. The increased quantity of
-161-
water shall not, however, be diverted into
the Sunnyside Canal when to do so would
augment the schedule of diversions in excess
of the safe dine capacity of the Canal.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contract.
(g) OUTLOOK IRRIGATION DISTRICT.--The
United States shall divert into the Sunnyside
Canal 17,855 acre-feet of water annually,
which quantity of water includes estimated
losses from the point of diversion to the
point of delivery, to supply the amount of
water provided for in the eonttact between
the United States and Outlook Irrigation
District dated November 23, 1914, as amended
by the contracts of August 1, 1916, and July
1, 1919, and the contract dated December 20,
-162-
1932. The United States or its successor in
the operation of the Sunnyside Canal pursuant
to the said contract of November 23, 1914, as
amended, shall deliver 14,530 acre-feet at
Mile 30.25 on the Sunnyside Canal. The
annual irrigation season for the delivery of
water shall be from April to September,
inclusive, and the maximum rate of flow which
the District may demand during any one month,
based on the following schedule, shall not
exceed 46 c.f.s. and the monthly supply of
water shall not exceed the following schedule
of deliveries:
-163=
Acre-feet
Month Total of Contract
April 1890
May 2380
June 2730
July 2820
August 2820
September 1890
Total 14,530
Provided, however, that water solely from the
natural flow of the Yakima River shall be
delivered by the United States during
October, if desired by the District and found
available by the officer in charge of the
administration of the water supply for the
Yakima project.
The United States or its successor in
the operation of the Sunnyside Canal,
pursuant to the contract dated December 20,
1932, with the District, in addition to the
water supply provided for in said contract of
November 23, 1914, as amende?, shall deliver
-164-
annually 1185 acre-feet at the headworks of
the District in the Sunnyside Canal. The
annual irrigation season for the delivery of
water shall be from April 1 to October 3l,
inclusive, and the mean monthly supply of
water to be delivered under the terms of said
contract shall not exceed the following
schedule of percentages of the total annual
diversion:
Per Acre-feet
Month Cent Total of Contrect
April 6 70
May S2 130
June 16 185
July 15 180
August 15 180
September 12 145
October 25 295
Totals 100 1,185
The foregoing quantities of water for
the Outlook Irrigation District shall be
increased 4,500 acre-feet upon the execution
~165-
of a contract for the acquisition of that
quantity of water by the District and the
United States as provided in paragraph 6 of
this judgment. The increased quantity of
water shall not, however, be diverted into
the Sunnyside Canal when to do so would
augment che schedule of diversions in excess
of the safe carrying capacity of the Canal.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts. |
(h) SUNNYSIDE IRRIGATION DISTRICT.--The
United States shall divert into the Sunnyside
Canal 21,044 acre-feet of water, which
quantity of water includes estimated losses
between the point of diversion and the point
of delivery, to supply the amounts of water
provided for in a contract dated October 6,
-166-
1914, between the United States and the
Sunnyside Irrigation District. The United
States or its successor in the operation of
the Sunnyside Canal shall deliver water
pursuant to said contract to the headworks of
the District, which are located on the West
line of Section thirteen (13), Township nine
(9) North, Range twenty-five (25) East, W.M.,
eleven hundred fifty-four and five-tenths
(1154.5) feet North of the Southwest corner
of said section, and the point at which said
Canal enters said District. The annual
irrigation season for the delivery of water
shall be from April to September, inclusive,
and the monthly supply of water shall not exceed
the following schedule of deliveries:
Acre-feet
Month Total of Contract
April 2410
May 2960
June 3700
-167-
July 3690
August 3350
September 2410
Total 18,520
The maximum rate of flow which the District
may demand during any one month, based on
the above schedule, shall not exceed 60
c.f.s. Provided, however, that water solely
from the natural flow of the Yakima River
shall be delivered by the United States
during October, if desired by the District
and found available by the officer in charge
of the administration of the water supply
for the Yakima project.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contract.
(i) Nothing in this decree shall
preclude the Prosser Irrigation District,
-168-
Snipes Mountain Irrigation District,
Grandview Irrigation District, Zillah
Irrigation District, Granger Irrigation
District, Outlook Irrigation District or
Sunnyside Irrigation District from the
permissive use of surplus water in the
Sunnyside Canal if available in the month of
October, to the same extent and under the
same conditions as prior to the entry of
this judgment.
4. WAPATO INDIAN IRRIGATION
PROJECT.--The United States shall deliver,
pursuant to the Act of August l, 1914, 38
Stat. 582, in perpetuity for lands within
the Yakima Indian Reservation, hereinafter
referred to as the Wapato Indian Irrigation
Project, at the northern boundary thereof, a
total of 720 cubic feet of water per second.
-169-
The United States shall, pursuant to
the agreement dated September 21, 1943,
between the Bureau of Reclamation and the
Office of Indian Affairs, which superseded
the agreement of March 9, 1921, as amended
by an agreement dated September 3, 1936,
divert from the Yakima River 250,000
acre-feet of water each year for the lands
of the Wapato Indian Irrigation Project,
such water to be measured at the diversion
works of the Wapato Indian Irrigation
Project. The irrigation season for the
delivery of the 250,000 acre-feet of water
shall be from April 1 to September 30, each
year, except as the season may be by the
United States extended to include the month
of October. The diversion of the said
250,000 acre-feet of water shall be in
-170-
accordance with the following basic
echedule:
Percent of
Month Season Total
April 9
May 21
June 20
July 23
August 21
September 6
Total 100
The foregoing basic schedule, as provided in
the agreement of September 21, 1943, may be
revised for a particular irrigation season
cr part of a season by agreement to be
entered into prior to or during the
irrigation season affected, between the
Project Superintencent of the Bureau of
Reclamation and the Project Engineer of the
Office of Indian Affairs, to permit an
interchange of quantities of water available
at such time as storage is being released
-lLii@-
for use below Union gap during the months of
June, July, August and September and to
permit the use of part of such available
quantities during the month of October. The
revision in such schedule shall be effective
only as to the months of June, July, August
and September in the same irrigation season
as the making of the agreement and only from
the date of storage release.
The United States shall divert each
year in addition to the water supply
hereinabove set forth for the Wapato Indian
Irrigation Project, in accordance with the
agreement dated September 3, 1936, between
the Office of Indian Affairs and the Bureau
of Reclamation, and the Act of July 1, 1940,
54 Stat. 707, 100,000 acre-feet of water
from the Yakima River, to be measured at the
diversion works of the Wapato Indian
-lL72-
Irrigation Project. The annual irrigation
season for the delivery of such water shall
be from April 1 to September 30 each year
and the diversion of said 100,000 acre-feet
shall be in accordance with the following
basic scheduie:
Percent of
Month Season Total
April 9
May 21
June 20
July 23
August 21
September 6
Total 100
The foregoing schedule, as provided in the
agreement of September 3, 1936, may be
revised by agreement between the Project
Superintendent of the Bureau of Reclamation
and the Project Engineer of the Office of
Indian Affairs to permit, subsequent to the
date of storage release, for use below Union
-“1L73-
Gap in the months of June, July, August and
September, the use of water inter-
changeably during said months in an amount
not to exceed 70,000 acre feet.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
agreements.
5. TIETON DIVISION (Tieton Water
Users' Association and Yakima-Tieton
Irrigation District).--The United States
shall divert annually into the Tieton Main
Canal, to supply the water rights of parties
entitled to receive water from the said
Canal, for use on the lands within the
boundaries of the Yakima-Tieton Irrigation
District, 96,000 acre-feet on the following
monthly schedule:
-174-
Average Rate of
Delivery in Cubic Delivery in
Montn Feet per Second Acre-feet
May 293 18,000
June 336 20,000
July 325 20,000
August 325 20,000
September 302 18,000
96,000
The foregoing schedule of diversions
shall be increased commensurate with the
quantity of water to be acquired from the
United States by the Yakima-Tieton
Irrigation District as provided in paragraph
6 of this judgment: Provided, however, that
the water acquired by that District shall
not be diverted into the Tieton Main Canal
when to do so would augment the schedule of
diversions in excess of the safe carrying
capacity of the Canal.
6. KITTITAS DIVISION (Kittitas
Reclamation District).--The United States
-175-
shall deliver to the Kittitas Reclamation
District, pursuant to a contract dated
February 16, 1921, as amended by the
contracts of November 1, 1930, and June 4,
1940, and January 10, 1945, between the
United States and the Kittitas Reclamation
District, at a point opposite the headworks
of the District constructed on the Yakima
River in Section eleven (11), Township
twenty (20) North, Range ehieteen (13) East,
W.M., during each irrigation season, 342,000
acre-feet of water measured at or near said
diversion works for use upon lands within
the boundaries of the District. The annual
irrigation season for the delivery of water
shall be from April 20 to October 15,
inclusive, and the mean monthly supply of
water shall not exceed the following
-176-
schedule of percentages of the total annual
diversion as hereinafter set forth:
During April 2%
. May 17%
" June 21%
‘: July 21%
" August 20%
a September 13%
” October 6%
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts.
The Kittitas Reclamation District has
released, pursuant to the foregoing contract,
as amended, to the United States 20,000
acre-feet of water in the months of April,
May and June, and 10,000 acre-feet of water
during the months of July, August, September
and October from its water supply provided
for in said contract, as amended, such water
to be sold by the United States to the
-177-
following irrigation districts in the amounts
set opposite the respective districts:
Yakima-Tieton Irricxtion
District | 18,000 acre-feet
Granger Irrigation District 1,800 sg ”
Outlook Irrigation District 4,500 - 2
Grandview Irrigation District 3,000 9 F
Prosser Irrigation District 2,500 <4 “i
Zillah Irrigation District 200 " t
7. ROZA DIVISION (Roza _ Irrigation
District).--The United States shall deliver
to the District, pursuant to a contract dated
July 8, 1921, between the United States and
the Yakima-Benton Irrigation District (now
Roza Irrigation District), as amended by the
contract of April 15, 1935, at-a point
opposite the headworks of the District
located in Section twenty-eight (28),
Township fifteen (15) North, Range nineteen
(19) sast, W.M., 375,000 acre-feet of water
measured at or near said diversion works for
-1/8=
use upon lands within the boundaries of the
District. The annual irrigation season for
the delivery of water shall be from April 1
to October 31, inclusive; and the mean
monthly supply of water shall not exceed the
following schedule of percentages of the
total annual diversion as hereinafter set
forth.
During April 10%
- May 15%
. June 19%
‘6 July 19%
. August 19%
" September 12%
° October 6%
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts.
8. SELAH & MOXEE IRRIGATION
DISTRICT.--The predecessor in interest of the
Selah & Moxee Irrigation District, in
-179-
accordance with the instrument known as a
limiting agreement, executed January 25,
1906, recorded March 12, 1906, in Volume 41
of Deeds at page 418 of the records of Yakima
County, Washington, limited its right in the
natural flow of the Yakima River as follows:
April to August,
inclusive September October
78 G.f.8, 60 ¢c.f.8. 40 c.f.s.
Such rights have been recognized by the
United States in a contract dated November
15, 1920, between the District and the United
States.
The United States shall deliver to the
District, in accordance with the foregoing
contract, 3,000 acre-feet of water at a point
opposite the headworks of the District on the
Yakima River which headworks are located in
Section seventeen (17), Township fourteen
-180-
(14) North, Range nineteen (19) East.
Willamette Meridian, the water to be
delivered as nearly as practicable in
compliance with the orders of the District.
The United States shall deliver annually
to the District, pursuant to its contract
dated April 30, 1931, with the District, in
addition to the water supply provided for in
said contract of November 15, 1920, 1757
acre-feet of water at the head of the
Selah-Moxee ditch. The annual irrigation
season for the delivery of water under said
contract dated April 30, 1931, shall be from
April 1 to September 30, inclusive, each year
and the mean monthly supply of water to be
delivered under said contract of April 30,
1931, shall not exceed the following schedule
of percentages of the total annual diversion:
“i18i4-
Per Acre-feet
Month Cent Total of Contract
April 10 175.70
May 16 281,12
June 19 333.83
July 21 368.97
August 20 351.40
September 14 245.98
Totals 100 1,757.00
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts. The foregoing obligation of the
United States to deliver water also is
subject to an agreement dated October als
1939, between the Selah & Moxee Irrigation
District and Terrace Heights Irrigation
District, under the terms of which the Selah
& Moxee Irrigation District transferred for
the use of lands in the Terrace Heights
Irrigation District one-tenth of the
foregoing amounts. By reason thereof, the
~162<
0c Nig AEE RE ROO RAD wiley She" gO 8
obligation of the United States to deliver
the foregoing amounts is reduced by
one-tenth.
9. WEST SIDE IRRIGATING COMPANY.--The
West Side Irrigating Company, in accordance
with the instrument which it executed October
21, 1905, known as a limiting agreement,
which instrument was recorded on the 14th day
of March, 1906 in Book 2 of Water Rights at
page 315 of the records of Kittitas County,
Washington, limited its water rights in the
natural flow of the Yakima River to 80 c.f.s.
during the months of April to September,
inclusive, and 34 c.f.s. during the month of
October of each year. These rights were
recognized by the United States in its
contract of August 1, 1922, with said
Company.
-183-
The United States, in accordance with
the said contract of August 1, 1922, in
addition, shall deliver to the Company 25
c.f.8.: from April 20 to September 30,
inclusive, provided that the total quantity
of such water be limited to 8,200 acre-feet.
The water shall be measured at a point in the
canal known as the millpond wasteway and
flume, located in the Southeast Quarter of
the Southeast Quarter (SEXSE%) of Section
Three (3), Township Eighteen (18) North,
Range Seventeen (17) East of the Willamette
Meridian.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contract.
10. UNION GAP IRRIGATION DISTRICT.--The
Union Gap Irrigation Company and the Fowler
-184-
Ditch Company, predecessor in interest of the
Union Gap Irrigation District, to which
reference is hereafter made, in accordance
with the instrument which they executed on
November 25, 1905, known as a limiting
agreement, limited their water rights in the
natural flow of the Yakima River as follows:
April to August, inclusive, as @.€.8.
September 16 .
October 12 "
These rights were recognized by the
United States in its contract of May 23,
1906, with the Union Gap Irrigation Company.
The United States shall deliver,
pursuant to the said contract of May 23,
1906, during the months from April to August,
Foth inclusive, 28 c.f.s., during the month
of September, 19 c.f.s., and during the month
of October, 14 c.f.s. During the months from
-185-
November to March both inclusive the United
States in accordance with the contract shall
deliver a reasonable amount of water for
stock purposes. All water covered by the
contract of May 23, 1906, shall be diverted
and measured at the intake of the Fowler
Ditch.
In addition, the United States shall
deliver to the Union Gap Irrigation District,
successor in interest of the Fowler Ditch
Company, pursuant to its contract with the
District dated March 2, 1915, 4222 acre-feet
of water at the headworks of the District
located approximately 950 feet west and 650
feet north of the southeast corner of Section
seven (7), Township thirteen (13) North Range
nineteen (19) East, W.M. The annual
irrigation season for the delivery of water
under the contract shall be from April 1 to
-186-
October 31, inclusive, and the monthly supply
of water furnished under said contract of
March 2, 1915, shall not exceed the following
schedule of deliveries:
During April 534 acre-feet
- May 3 e
" June pif ils .
° July a Sie .
4 August —. "
“: September aa. -
. October — = 7
4222
The maximum flow for any one month to be 13
C.£.8,
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts.
ll. BROADWAY IRRIGATION COMPANY.--The
United States shall deliver to the Broadway
Irrigation Company 700 acre-feet from the
natural flow water available in Wide Hollow
-187-
Creek pursuant to its contract with the
Company dated December 1, 1921, and shall
deliver said water at a point opposite the
Company's headworks located 600 feet west of
the east quarter corner of Section
thirty-five (35), Township thirteen (13)
North, Range eighteen (18) East of the W.M.
The annual irrigation season shall be from
April 1 to October 31, inclusive, and the
monthly supply of water shall not exceed the
following schedule of percentage of the total
annual diversion as hereinafter set forth:
During April 10% - 70 acre-feet
x May 15 - — *
. June 19 - ia” .
9 July 19 - ian '
. August 19 - igo ** .
- September 12 - i ”
’ October a a ol *
Total 700
-188-
The quantity of water to be delivered
shall be limited to that which is available
in Wide Hollow Creek.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contract.
12. CASCADE IRRIGATION DISTRICT.--The
Cascade Canal Company, in accordance with an
instrument known as a limiting agreement
which it executed December 12, 1906, limited
its rights in the natural fiow of the Yakima
River to 150 c.f.s. from the period from
March 15, to July 20; from July 20 to October
15 such rights are limited in accordance with
the storage contract referred to in the
succeeding paragraph, and from October 15 to
March 15 to 30 c.f.s. for stock purposes.
Such rights have been recognized by the
-189-
United States in a contract dated December
12, 1906, between the District and the United
States. All of the rights of the Cascade
Canal Company were transferred to and are now
owned by the Cascade Irrigation District.
The United States shall deliver to the
Irrigation District pursuant to the contract
of December 12, 1906, a total of 16,800
acre-feet of water between July 20 and
October 15 of each year, delivery of water to
be at points higher on the river than the
headgate of said District located in the
Northwest Quarter (NW) of Section
twenty-eight (28), Township nineteen (19)
North, Range seventeen (17) East, W.M., and
the water to be measured at a point on said
canal below and within 100 feet of a certain
wasteway from said canal in Section
thirty-four (34), Township nineteen (19)
-190-
North, Range seventeen (17) East, W.M. At no
time under said contract shall the District
'
require a flow in excess of 150 c.f.s. of
time.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contract.
13. TERRACE HEIGHTS IRRIGATION
DISTRICT.--The United States shall, in accor-
dance with its contract of February 10, 1940,
with the Terrace Heights Irrigation District,
which supplemented the contract of March 24,
1931, deliver annually a maximum of 3,259.5
acre-feet of water per annum, measured at or
near the points of diversion in the main Roza
canal, the maximum net deliveries at the
points of delivery, after the deduction of
-19i-
ea
10% for evaporation and seepage losses, to be
made in accordance with the following monthly
schedule:
Month Total Acre-feet Second Feet
April 416.1 6.99
May 483.8 7.87
June 501.5 8.43
July 31.2 8.64
August 521.6 8.48
September Cy Pe 6.01
October pe Pe 1.98
Total 2,933.6
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations of said contract. |
14. MOXEE DITCH COMPANY, SUB-A.--The
Moxee Company, in accordance with an
instrument known as a limiting agreement
which it executed October 24, 1905, limited
its rights to divert water from the Yakima
River as follows:
-i92-
April to August
inclusive September October
36 c.f.8. 29 €.2.8. aa ¢.5.8.
The rights so limited were later divided
between the Moxee Ditch Company and the
Hubbard Ditch company as follows:
Moxee Ditch Company
April to August, inclusive, 11 C.2.8.
September 8.4 °
October 6.4 ¥
Hubbard Ditch Company
April to August, inclusive, 27 ey oy OF
September 20.6
October 15.6 .
Such rights have been recognized by the
United States in its contract with the Moxee
Ditch Company, Sub-A, dated June 77, 1929.
The United States shall deliver annually
to the Moxee Ditch Company, Sub-A, 959.4
acre-feet of water at the head of the Moxee
Or Hubbard Ditch in accordance with said
-193-
April to
August September October
Limiting 105 cfs i103 srs 100 cfs
agreement
water
Additional 11.77 " Pe) ee FS Ge
water
Totals 116.77" aneeee” 106.91 ”
in addition to the above mentioned water
the Naches-Selah [Irrigation District
subsequent to the execution of said
agreements purchased and acquired an
additional water right of 2 c.f.s., which has
been diverted through the canal of said
District and used upon lands therein.
The United States shall deliver annually
to the District in accordance with its
contract of April 6, 1920, from April 1 to
August 31, inclusive, a supply of
"supplemental water" to be delivered in
~196=
‘.
2
4
a
=.
«
5
2 ‘4
t
¥
4
&
..
&
a
&
3
2
4
=
a
amounts not to exceed the following schedule
of deliveries:
During April 674 acre-feet
7 May Ee 4
. June 901 " s
" July 1050 " 4
" August A) ”
Total 4486 " e
The maximum rate of flow for’ such
supplemental water shall not exceed 17.1
c.f.s. and shall be delivered at a point
opposite the headworks of the District on the
Naches River in the Southwest Quarter (SW),
Northwest Quarter (NW), Section thirty-five
(35), Township fifteen (15) North, Range
Sixteen (16) East, W.M.
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contracts.
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16. YAKIMA VALLEY CANAL COMPANY.--The
Yakima Valley Canal Company, in accordance
with the instrument which it executed January
8, 1906, known as a limiting agreement, which
was recorded March 12, 1906, in Vol. 41 of
Deeds at page 397, Yakima County, Washington,
limited its water rights to 62% c.f.s. during
the months of April to August, inclusive, 40
c.f.s. during the month of September, and 30
c.f.s. during the month of October of each
year. Subsequent to the limiting agreement
the Company acquired certain additional water
rights, purported to be 1% c.f.s., by a
conveyance recorded in Vol. 146 of Deeds,
page 566 of the Yakima County records.
The United States by its contract with
the Yakima Valley Canal Company, dated June
2, 1920, recognized in the Company the
following rights or such part thereof as may
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be available from the natural flow of the
Yakima River:
April to August
(both inclusive) September October
Limiting
agreement
water 62.5 cts 40 cfs 30 cfs
Transferred
water | ties i les Ss7s *
64 cfs 4i.5: Cla ‘30.73 €fs
The United States shall deliver to the
Company each year, in accordance with the
contract of June 2, 1920, 4300 acre-feet of
storage water. Delivery of such water shall
be made at a point opposite the headworks of
the Company on the Naches River in the
Northwest Quarter (NW%) of Section
twenty-five (25), Township fourteen (14)
North, Range seventeen (17) East, W.M.
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The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations of said contracts.
17. The United States shall continue to
divert available flood water from the Yakima
River and its tributaries in accordance with
its practice prior to the entry of this
judgment, and the quantities of such water
which the parties to this judgment are
entitled to receive shall be over and above
the schedules of diversion hereinabove set
forth. Within the meaning of this judgment,
flood water is available for such diversions
when, as determined by the Yakima Project
Superintendent, there is flowing over the
Sunnyside dam flood water in excess of the
amount he deems necessary for proper river
regulation, including in said amount the
amount necessary to protect fish life in the
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river below said dam. The determinations by
the Yakima Project Superintendent as to
whether flood water is available for such
diversions shall be binding upon the parties
hereto, subject to review by the court. The
United States, or its successor in the
operation of the Sunnyside Canal, shall
deliver at the points of delivery in said
canal, as above set forth, the pro rata
shares of the Sunnyside Valley, Prosser,
Snipes Mountain, Grandview, Zillah, Granger,
Outlook and Sunnyside Irrigation Districts of
said flood waters.
18. The parties to this judgment,
except as provided in paragraph 19 hereof,
shall have equal rights with respect to the
priority in the delivery of the quantities of
water to which they are entitled under the
preceding paragraphs of this judgment. If
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ma ne Tae SSS SS AES ES Ee So es
contract of June 27, 1929. The annual
irrigation season for the delivery of water
shall be from April 1 to October 3l,
inclusive, each year and the mean monthly
supply of water furnished under the contract
shall not exceed the following schedule of
percentages of the total annual diversion:
April 9%
May 15
June 19
July 19
August 19
September 13
October 6
The foregoing obligation of the United
States to deliver water is subject to the
conditions and limitations set forth in said
contract.
15. NACHES-SELAH IRRIGATION
DISTRICT.--The predecessor in interest of the
Naches-Selah Irrigation District, in
accordance with the instrument executed
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December 21, 1905, known as a limiting
agreement, limited its rights in the Yakima
River during the months of April to
September, inclusive, to 105 c.f.s., and 100
c.f.s. during the month of October, said
limiting agreemei.t having been recorded March
12, 1906, in Vol. 41 of Deeds, page 420,
Records of Yakima County, Washington.
Subsequent to execution of the limiting
agreement, the predecessor in interest of the
District acquired through conveyances certain
additional water, and the United States by a
contract dated April 6, 1920, with the
Naches-Selah Irrigation District recognized
in the District the following rights or such
part thereof as may be available in the
natural flow of the Yakima River:
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for any cause it is impossible to supply
fully those quantities, the water subject to
proration to which each party to this
~ judgment is entitled shall be proportionately
diminished. The pro rata share of that water
which each of the parties to this judgment ;
shall receive during a period of insufficient
supply shall be an amount in the same
proportion to the quantity of water subject
to proration that each of the parties is
entitled to under this judgment as the total
water supply available, as hereinafter
defined, less the summation of the rights
recognized in paragraph 19 bears to the
aggregate of the following quantities of
water: Those quantities of water provided
for in this judgment which are subject to
proration, and those quantities subject to
proration which the United States has
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contracted to deliver to water users not
parties to this judgment; provided, however,
that during the period of development of the
Roza Division the amount of water to be
included for that Division in the foregoing
aggregate shall be the amount diverted for
the irrigated lands of that Division in a
normal year, plus estimated losses from the
points of diversion to the place of delivery,
rather than the amount recognized in
paragraph 7 of this judgment; and provided
further that, during the period of
development of the Roza Division, in
computing the pro rata share of water which
the Roza Division will be entitled to receive
in a period of insufficient supply there will
be used that quantity of water diverted for
the Roza Division in a normal year plus
estimated losses, rather than the quantity
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of the amount heretofore recognized in this
judgment for the use on lands within the
Sunnyside Valley Irrigation District, which
amount shall constitute the limit of the
water rights of said District not subject to
proration, except as to those lands within
the Sunnyside Valley Irrigation District
which are covered by sub-paragraph 6 hereof.
Provided, however, that not exceeding 50
c.f.s. of said amount may be measured daily
by the Bureau of Reclamation from return flow
of the Roza Division into the Sunnyside
Canal. The amounts so excepted from
proration shall be for the benefit of all
lands within the Sunnyside Valley Irrigation
District, subject to classification of lands
by the Board of Directors of the District.
(4) 35 c.f.s. of water for the use
on the so-called Konnewock lands, served from
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Se ree © > ee “fe
the Sunnyside Canal, which amount shall
constitute the limit of the water rights for
said lands not subject to proration.
(5) 26 c.f.s. of water, for the
use on Piety Flat lands, in accordance with
the contract of May 1, 1914, between the
United States and Piety Flat Ditch Company,
served from the Sunnyside Canal, which amount
shall constitute the imate of the water
rights for said lands not subject to
proration.
6) 25 evt.s. of water, in
accordance with the contract of September 24,
1910, between the United States and Prosser
Falls Land and Power Company, served from
Sunnyside Canal, which is the limit of this
right not subject to proration.
(7) °3S > -e.f.6. of water in
accordance with the contract between the
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recognized for that Division in paragraph 7
of this judgment.
For the purpose of this judgment "total
water supply available” is defined as that
amount of water available in any year from
natural flow of the Yakima River, and its
tributaries, from storage in the various
Government reservoirs on the Yakima watershed
and from other sources, to supply the
contract obligations of the United States to
Geliver water and to supply claimed rights to
the use of water on the Yakima River, and its
tributaries, heretofore recognized by the
United States.
19. The following amounts of water are
excepted from the preceding paragraph with
respect to proration, and the summation of
said amounts shall be deducted from the
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"total water supply available" subject to
proration:
(1) 720 c.f.s. of water for the
use on lands within the Wapato Indian
Irrigation Project provided for by the Act of
August 1, 1914 (38 Stat. 604), which amount
shall constitute the limit of the water
rights of the said Project ktm subject to
proration.
(2) 250 c.f.s. of water during the
months of May, June, July, August, and
September of the amount heretofore recognized
in this judgment for the use on lands within
the Tieton Division, which amount shall
constitute the limit of the water rights of
said Division not subject to proration.
(3) 700 c.f.s. of water during the
months of April, May, June, July, August,
September, and the first 20 days of October,
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United States and the Town of Prosser, dated
May 3, 1911, served from the Sunnyside Canal,
which is the limit of this right not subject
to proration.
In addition to the amounts herein set
forth which shall be excepted from paragraph
18 with respect to proration, there also
shall be excepted from paragraph 18 the
rights of Cascade Irrigation District which
are recognized in paragraph 12, and the
amounts claimed by other water users of
natural flow rights from the Yakima River and
its tributaries, which have heretofore been
recognized by the United States whether or
not such users are parties to this action,
and the summation of said amounts shall also
be deducted from the total water supply
available subject to proration. Exception
from proration of such amounts specified in
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the preceding sentence from the total water
supply available does not constitute a
determination of the quantum or priority of
such claimed rights, and is without prejduice
to any of the parties to this action.
20. This judgment shall constitute a
final determination of the obligation of the
United States to deliver water from the
Yakima River, and its tributaries, from
storage from its various reservoirs in the
Yakima watershed and from other sources to
the parties to this judgment and the lands
within the Wapato Indian Irrigation Project.
Each of the parties to this cause, their
grantees, successors and assigns are by this
judgment forever enjoined and restrained from
asserting any claim tod or from intectexton
with any of the rights to the use or the
delivery of those quantities of water which
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are recognized in this judgment. This
judgment shall not, however, be construed as
limiting or in any way interfering with the
transfer or legal succession of any of those
rights. The rights of any claimants to water
of the Yakima River or watershed who are not
parties to this cause shall in no way be
prejudiced or affected by this judgment nor
will it in any way prejudice or affect the
rights of the parties to this judgment as
they may pertain to the rights of such
claimants. This judgment shall be binding
upon and inure to the benefit of the
grantees, assigns or successors of the
parties hereto. The several parties to this
suit shall pay their own costs in this
action.
The Court, in its discretion, may
appoint a watermaster, who shall be vested
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ILRI LOL ALOE A SILL OED EME MEISE GN Sh
¥ by
with such authority as the Court deems
appropriate in the administration of the
water rights, subject to the provisions of
this judgment. This Court shall retain
jurisdiction over matters of interpretation
of this judgment and matters relating to the
administration thereof.
Done in open court this 31 day of
January, 1945.
/s/ L. B. SchwWellenbach
Judge
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.