Appendix — Sunnyside Valley Irrigation District v. United States

—*

85-451 /

—

IN THE SUPREME (

OF THE

U™ITED STATES

OCTOBER TERM 1985

UNION GAP IRRIGATION DISTRICT;

YAKIMA-TIETON IRRIGATION DISTRICT;

YAKIMA VALLEY CANAL COMPANY,

Petitioners,

vs.

UNITED STATES OF AMERICA, et al.,

Respondents.

APPENDIX TO WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

DONALD H. BOND

Halverson & Arplegate, P.S.

Attorneys for Petitioners

Post Office Box 526

Yakima, Washington 98907

(509) 575-6611

.

hiatal

INDEX TO APPENDIX OF

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT |

. _ Page

Le OPINIONS BY COURT WHOSE DECISION

IS TO BE REVIEWED

AMENDED OPINION, June 14, 1985. ....41

OPINION, September 10, 1982 ...... 16

GOPimrom., pemeuary.&©, 1965 .«..+-2«ee 6

iz ORDERS TO BE REVIEWED

INSTRUCTIONS TO THE WATERMASTER,

ee ee a

SUPPLEMENTAL INSTRUCTIONS TO THE

WATERMASTER, November 28, 1980... 61

Esae OTHER APPENDED MATERIALS

A. Treaties and Statutes

ACT OF AUGUST 1, 1914

(36 Stat. 582, 604). .. . « « « JF

McCARRAN AMENDMENT

43 U.S.C. Sec. 666

See es

ACT OF JULY 1, 1940

eC Re a a tk

TREATY WITH THE YAKIMAS 1855. . . . 76

B. 1945 Proceedings

STATEMENT TO THE COURT,

pee 2hy BOGS 6 « « «& 0 6 © «en

COLLOQUY, January 31, 1945. .... 184

Juuameeas, canuary Si, 1945. . + « ¢

eee a ee

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Se net ae el ee Aaa ie

KITTITAS RECLAMATION

DISTRICT,

Plaintiffs-Appellees, NOS. 80-3505

81-3002

vs. 81-3068

SUNNYSIDE VALLEY IRRIGA-

TION DISTRICT, et al., DC# Civil No. 21

AMENDED

OPINION

)

)

)

)

)

)

) 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is withdrawn and replaced by this opinion.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.

ate |

ek mr a NR Ab ey

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]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

eitisens of the Territory ....«." 42 Btat.

951, 953 (1855).

The farmers' interest stems from the

irrigation and storage systems constructed by

-3-

the Reclamation Service in 1909 to 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 officiais closed the

Cle Elum dam as usual, to begin winter

storage, approximately 60 redds would have

been exposed and destroyed.

When the Yakima “N7tion 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 non 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

-6-

LOE ALE NALA GEOG eT nna te elem P

(a Aer tar Ll ee Ae he, ts

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 retaineu jurisdiction under the

1/ Paragraph 20 gave the

consent decree.

court jurisdiction “over matters of

interpretation of this judgment and matters

relating to the administration thereof."

1/al though 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.

Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43,

53 LEA. 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.2a 32 (Sth

Cir. 1oa0y- cert. denied, 449 U.S. 1079, 101

S.Ct. 861, 66 L.Ed.2d 602 (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).

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

parties, including the Yakima Nation. ~/ The

Court properly assumed jurisdiction to

interpret the decree in light of the Nation's

treaty fishing right.

or 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

-G-

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 und 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.

-10-

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.

-ll-

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

-12-

bt ES ly AON &

Ae a i cere

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.

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

ON AOA

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

-1]4-

ee

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.

5 /

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.

-15-

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KITTITAS RECLAMATION

DISTRICT, UNITED STATES,

et ai.; Nos. 80-3505,

81-3002,

Plaintiffs-Appellees, 81-3068,

81-3069

VS «

SUNNYSIDE VALLEY IRRIGA- DC# Civil No. 21

TION DISTRICT, et al.,

OPINION

Defendants-Appeliants.

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]

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

-~16-

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 tothe 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

-]7=

citizens of the Territory .... 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 the

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 iormally 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

-18-

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-errninted 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

-19-

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 necessary, to preserve

the redds; (2) use of alternative measures to

preserve the redds, such as diversionary

berms and transplantation; (3) moi%ering of

the redds' condition; and (4) suudy 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 orders

exceeded the scope of authority reserved in

the consent decree. Alternatively, they

-20-

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 righ 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

jurisdi~tion to disputes between the parties

to the decree,

-2\i-=-

No such limitation appears. The decree

specifically stated that it did not

adjudicate the rights of persons not made

parties, including the Yakima Nation. ?/ 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,

/

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

-22-

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.

-23-

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

-24-

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 thé 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

=25—

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.

-26-

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

3/ 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.

~ >

This clarification eliminates

appellants' res judicata argument as well.

Appellants rely on Umited 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 decleration of a reserved water

right in the Paiute Indians for preservation

of their fishery in Pyramid Lake 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 |

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

-28-

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 ft ‘ology testified and suggested

actions for pieserving 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

-29-

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

L/ Although neither side argues that

mootness or lack of finality bar our

jurisdiction, we must examine this issue on

-30-

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.

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

(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 decisions of Northern

Cheyenne Tribe v. Adsit, 668 F.2d 1080 (9th

Cir. 1982), San Carlos Apache Tribe v. State

of Arizona, 668 F.2d 1093 (9th Cir. 1982),

and Navajo Nation v. United States, 668 F.2d

1100 (9th Cir. 1982).

-3]-

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

-32-

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).

-33-

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 land, 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 measures 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

-34-

ee hg ane ee eee ee ra

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).

W At the November 25, 1980 hearing, the

district court in fact observed that:

I don't have any feeling at all

that 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.

-35-

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KITTITAS RECLAMATION

DISTRICT, Nos. 80-3505

81-3002

81-3068

81-3069

Plaintiffs-Appellees,

vs.

SUNNYSIDE VALLEY IRRIGA-

TION DISTRICT, et al., ee ae ie

)

)

)

)

)

)

) DC# Civil No. 21

)

)

)

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

-36-

publication during our consideration of the

petitions for rehearing.

The petitions for rehearing by Sunnyside

Valley Irrigation District, Union Gap

Irrigation Discrict, 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

-37-

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 SOCTItSL yy Eo ae Stat.

951, 953 (1855).

The farmers' interest stems from the

irrigation and storége 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 irrigation districts during the

irrigation season. The district court

-38-

retained jurisdiction over the consent

decree's interpretation and administra-

tion. It entered the orders On appeal uncer

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

-39-

water flow. The watermaster, in turn, asked

the district court for instructions.

The court held two hearings. At the

first, in October i980, 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

-40-

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

-4]-

Congress before the consent decree, or in it:

settlement. They claim also that the decree

is res judicata of any water right.

JURISDICTION?/

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

Res we Motley, 211 U.S. 149, 152, 29 5.Ct.

42, 43, 53 L.Bd. 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 +. Bradford, 423

U.S. 147, 149, 96 S.Ct. 347, 348-49, 46

L.Ed.2d 350 (1975) (per curiam).

-42-

The district court dia not éxceed 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 dia not

adjudicate the rights of persons not made

parties, including the Yakima Nation, 2/ The

a/ 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.

-43-

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 of 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' reliaiace 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

-44-

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.

-45-

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 Accuavella 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

-46-

The 1855 Treaty reserved to the Yakima

Nation extensive fishing rights. See

Washington vy. 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, 198 U.S. 371, 381, 25 S.Ce.

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 Vv.

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

-47-

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

&

-48- -

such an intent. Menominee Tribe Of Indians

v. United States, 391 U.S. 404, 413, 88 S.Ct.

1705, 1711, 20 L.Ed.24 697 (1968). We fina

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

-49~-

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

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.

-50-

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.

——

/ The 1945 decree resulted from a suit

iled by the United States in 1939, seeking a

eclaration of their responsibilities to

arious contract holders in the Yakima

rrigation System. Neither side joined the

dditional parties that would have been

ecessary for a general adjudication, like

he one involved in Nevada v. United States,

03 S.Ct. 2906 (1983). The final decree

settled only the rights of the irrigation

istricts made party to the proceeding.

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

=-52—

1980 redds were reasonable emergency measures

taken to protect the Treaty fishing right.

We need not decide the exact scope of

the Treaty fishing eight. 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

disputes could be resolved in the most

reasonable and workable way.

We affirm the district court's orders.

-53-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

KITTITAS RECLAMATION )

DISTRICT, et al., )

)

Plaintiff, ) Civil No. 21

)

Vv. ) INSTRUCTIONS TO

) 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

-54-

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,

Jennis Fluegee, Robert Frazier, Jay Sandlin,

charles Flower, and Jeffrey Simpson,

Attorneys at Law; and

~55-

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

‘s as

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 season 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

-56-

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

-57-

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 availab’e; NOW, THEREFORE, upon

consideration of the foregoing,

IT IS ORDERED AND DECREED AND THE

WATERMASTER IS INSTRUCTED as follows:

-58-

dw 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 Ee (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

-59-

biologists of the Fish and Wildlife Service

of the Department of the Interior and the

Yakima Indian Nation; and

Ze 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 3] day of October, 1980.

/s/ Justin L. Quackenbush

UNITED STATES DISTRICT JUDGE

Presented by:

/s/ Robert M, Sweeney

Assistant U.S. Attorney

-~60-

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 Gace )

)

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

-6l-

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 Teanaway 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

-62-

Sandlin, V. J. Beaulaurier, J. M, McArdle,

Thomas Nelson, Robert M. Leadon, and H. K.

Dano, Attorneys at Law.

It appearing to the Court as follows:

Rie 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

ae 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

-6§3-

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

36 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

-64-

a

the Interior, among other things, recommends

that sufficient waters be maintained in the

Yakima River 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.

5. 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:

l. 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 che Watermaster in his

discretion may find consistent with

protection of the spawning area after consul-

-66-

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. Brainon 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.

~67-

c. Open the effluent ends of such side

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

-68-

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 irriaqation

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

-6§9-

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 flovw 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

-70=

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

=

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.

a

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 l, 1914,

38 Stat. 582, 604

-73-

§666. Suits for adjudication of water rights—Joinder of

United States as defendant; costs

(a) Consent is given to join the United States as a defendant

in any suit (1) for the adjudication of rights to the use of water

of a river system or other source, or (2) for the administration

of such rights, where it appears that the United States is the

owner of or is in the process of acquiring water rights by ap-

propriation under State law, by purchase, by exchange, or other-

wise, and the United States is a necessary party to such suit.

The United States, when a party to any such suit, shall (1) be

deemed to have waived any right to plead that the State laws

are inapplicable or that the United States is not amenable

thereto by reason of its sovereignty, and (2) shall be subject to

the judgments, orders, and decrees of the court having juris-

diction, and may obtain review thereof, in the same manner

and to the same extent as a private individual under like

circumstances: Provided, That no judgment for costs shall be

entered against the United States in any such suit.

-74-

(CHAPTER 496)

AN ACT

To authorize the appropriation for payment of

the cost of providing additional water for the

Wapato Indian irrigation project, Washington.

Be it enacted by the Senate and House of

Representatives of the United States of Amer-

wea in Congress assembled, That there is hereby

authorized to be appropriated, out of any

money in the Treasury not otherwise appro-

priated, the sum of $800,000, and credited to

the reclamation fund, to defray the actual cost

of furnishing an additional quantity of water

annually of one hundred thousand acre-feet

which is needed to provide adequate irrigation

for forty acres each of the Indian allotments

of the Yakima Reservation as contemplated by

the Act of August 1. 1914, and set out in the

terms of the agreement between the Bureau

of Reclamation and the Office of Indian

Affairs, approved by the Secretary of the

Interior Septémber 3, 1936, the same to be

made available in amounts not to exceed

$20,000 annually for forty years.

Approved, July 1, 1940.

-~75-

July 1, 1940

_{H.R. 3402)

(Public, Na 695)

Wapato Indian

irrigation project,

Washington.

Appropriation

for additional

water authorized.

38 Stat. 582, 604.

TREATY WITH THE YAKAMAS, 1855

12 Stat. 951, June 9, 1855—Treaty

Articles of agreement and convention made and concluded

at the treaty ground, Camp Stevens, Walla Walla Valley, this

ninth day of June, in the year one thousand eight hundred and

fifty-five, by and between Isaac I. Stevens, governor and super-

intendent of Indian affairs for the Territory of Washington, on

the part of the United States, and the undersigned head chief,

chiefs, headmen and delegates of the Yakama, Palouse

Pisquose, Wenatchapam, Klikatat, Klinquit, Kow-wa-say-ee,

Li-ay-was, Skin-pah, Wishham, Shyiks, Oche-choetes, Kah-

milt-pah, and Se-ap-cat, confederated tribes and bands of

Indians, occupying lands hereinafter bounded and described

and lying in Washington Territory, who for the purposes of this

treaty are to be considered as one nation, under the name of

“Yakama’, with Kamiakun as its head chief, on behalf of and

acting for said tribes and bands, and being duly authorized

thereto by them.

Cession of Lands

ARTICLE i. The aforesaid confederated tribes and bands

of Indians hereby cede, relinquish, and convey to the United

States all their right, title, and interest in and to the lands and

country occupied and claimed by them, and bounded and

described as follows, to wit:

—

=76=

Boundaries

Commencing at Mount Rainier, thence northerly along the

main ridge of the Cascade Mountains to the point where the

northern tributaries of Lake Che-lan and the southern tribu-

taries of the Methow River have their rise: thence southeasterly

on the divide between the waters of Lake Che-lan and the

Methow River to the Columbia River: thence, crossing the Col-

umbia on a true east course, to a point whose longitude is one

hundred and nineteen degrees and ten minutes (119°10’), which

two latter lines separate the above confederated tribes and

bands from the Oakinakane tribe of Indians; then in a true south

course to the (952) forty-seventh (47°) parallel of latitude; thence

east on said parallel to the main Palouse River, which two latter

lines of boundary separate the above confederated tribes and

bands from the Spokanes; thence down the Palouse River to

its junction with the Moh-hah-ne-she, or southern tributary of

the same; thence, in a southeasterly direction to the Snake

River, at the mouth of the Tucannon River, separating the above

confedered tribes from the Nez Perce tribe of Indians; thence

down the Snake River to its junction with the Columbia River;

thence up the Columbia River to the “White banks,” below the

Priest’s rapids; thence westerly to a lake called “La Lac’ thence

southerly to a point on the Yakama River called Toh-mah-luke;

thence, ina southwesterly direction, to the Columbia River, at

the western extremity of the “Big Island”, between the mouths

of the Umatilla River and Butler Creek; all of which latter boun-

daries separate the above confederated tribes and bands from

the Walia Walla, Cayuse, and Umatilla tribes and bands of

Indians; thence down the Columbia River to midway between

- 7 7-

the mouths of White Salmon and Wind Rivers; thence along

the divide between said rivers to the main ridge of the Cascade

Mountains; and thence along said ridge to the place of

beginning.

Reservation

ARTICLE II. There is, however, reserved from the lands

above ceded for the use and occupation of the aforesaid con-

- federated tribes and bands of Indians, the tract of land included

within the following boundaries, to wit:

Boundaries

Commencing on the Yakama River, at the mouth of the Attah-

nam River; thence westerly along said Attah-nam river to the

forks; thence along the southern tributary to the Cascade

Mountains; thence southerly along the main ridge of said moun-

tains, passing south and east of Mount Adams, to the spur

whence flows the waters of the Klickitat and Pisco rivers;

thence down said spur to the divide between the waters of said

rivers; thence along said divide to the divide separating the

waters of the Satass River from those flowing into the Colum-

bia River; thence along said divide to the main Yakama, eight

miles below the mouth of the Satass River; and thence up the

Yakama River to the place of beginning.

All of which tract shall be set apart and, so far as necessary,

surveyed and marked out, for the exclusive use and benefit of

said confederated tribes and bands of Indians, as an Indian

reservation; nor shall any white man, excepting those in the

employment of the Indian Department, be permitted to reside

upon the said reservation without permission of the tribe and

the Superintendent and agent. And the said confederated tribes

-78-

and bands agree to remove to, and settle upon, the same within

one year after the ratificaton of this treaty. In the mean time

it shall be lawful for them to reside upon any ground not in

the actual claim and occupation of citizens of the United States;

and upon any ground claimed or occupied, if with the permis-

sion of the owner of claimant.

Guaranteeing, however, the right to all citizens of the United

States, to enter upon and occupy as settlers any lands not

actually occupied and cultivated by said Indians at this time,

and not included in the reservation above named.

And provided, That any substantial improvements heretofore

made by any Indian, such as fields enclosed and cultivated, and

houses erected upon the lands hereby ceded, and which he may

be compelled to abandon in consequence of this treaty, shall

be valued, under the direction of the President of the United

States, and payment made therefor in money; or improvements

of an equal value made for said Indian upon the reservation.

And no Indian will be required to abandon the improvements

aforesaid, now occupied by him, until their value in money, or

improvements of an equal value shall be furnished him as

aforesaid.

ARTICLE IIf. And provided, That, if necessary for the public

convenience, (953) roads may be run through the said reserva-

tion; and on the other hand, the right of way, with free access

from the same to the nearest public highway, is secured to them;

as also the right in common with citizens of the United States,

to travel upon all public highways.

-79-

Privileges Secured to Indians

The exclusive right of taking fish in all the streams, where

running through or bordering said reservation, is further

secured to said confederated tribes and bands of Indians, as

also the right of taking fish at all usual and accustomed places,

in common with citizens of the Territory, and of erecting tem-

porary buildings for curing them; together with the privilege

of hunting, gathering roots and berries, and pasturing their

horses and cattle upon open and unclaimed land.

Payments by the United States

ARTICLE IV. In considera‘ion of the above cession, the

United States agree to pay to the said confederated tribes and

bands of Indians, in addition to the goods and provisions

distributed to them at the time of signing this treaty, the sum

of two hundred thousand dollars, in the following manner, that

is to say: sixty thousand, to be expended under the direction

of the President of the United States, the first year after the

ratification of this treaty, in providing for their removal to the

reservation, breaking up and fencing farms, building houses

for them, supplying them with provisions and suitable outfit,

and for such other objects as he may deem necessary, and the

remainder in annuities, as follows: for the first five years after

the ratification of the treaty, ten thousand dollars each year,

commencing September first, 1856; for the next five years, eight

thousand dollars each year, for the next five years, six thou-

sand dollars per year; and for the next five years, four thou-

sand per year.

All which sums of money shall be applied to the use and ben-

efit of said Indians, under the direction of the President of the

-80-

United States, who may from time to time determine at his

discretion, upon what beneficial objects to expend the same

for them. And the superintendent of Indian affairs, or other

proper officer, shall each year inform the President of the wishes

of the Indians in relation thereto.

United States to Establish Schools

ARTICLE V. The United States further agrees to establish

at suitable points within said reservation, within one year after

the ratification hereof, two schools, erecting the necessary

buildings, keeping them in repair, and providing them with

furniture, books, and stationery, one of which shall be an agri-

cultural and industrial school, to be located at the agency, and

to be free to the children of the said confederated tribes and

bands of Indians, and to employ one superintendent of teaching

and two teachers, to build two blacksmiths’ shops, to one of

which shall be attached a tin shop, and to the other a gunsmith’s

shop; one carpenter’s shop, one wagon and ploughmaker’s shop,

and to keep the same in repair and furnished with the necessary

tools; to employ one superintendent of farming and two

farmers, two blacksmiths, one tinner, one gunsmith, one

carpenter, one wagon and ploughmaker, for the instruction of

the Indians in trades and to assist them in the same; to erect

one saw-mill and one flouring-mill, keeping the same in repair

and furnished with the necessary tools and fixtures; to erect

a hospital, keeping the same in repair and provided with the

necessary medicines and furniture, and to employ a physician;

and to erect, keep in repair, and provided with the necessary

furniture, the buildings required for the accomodation of the

said employees. The said buildings and establishments to be

-8li-

maintained and kept in repair as aforesaid, and the employees

to be kept in service for the period of twenty years.

And in view of the fact that the head chief of the said con-

federated tribes and bands of Indians is expected, and will be

called upon, to perform many services of a public character,

occupying much of his time, the United States further agrees

to pay to the said confederated tribes and bands of Indians five

hundred dollars per year, for the term of twenty years after

the ratification hereof, as a salary for such person as the said

(954) confederated tribes and bands of Indians may select to

be their head chief; to build for him at a suitable point on the

reservation a comfortable house and properly furnish the same,

and to plough and fence ten acres of land. The said salary to

be paid to, and the said house to be occupied by, such head chief

so long as he may continue to hold that office.

Kamiakun Is The Head Chief

And it is distinctly understood and agreed that at the time

of the conclusion of this treaty Kamiakun is the duly elected

and authorized head chief of the confederated tribes and bands

aforesaid, styled the Yakama nation, and is recognized as such

by them and by the commissioners on the par of the United

States holding this treaty; and all the expenditures and expenses

contemplated in this article of this treaty shall be defrayed by

the United States, and shall not be deducted from the annuities

agreed to be paid to said confederated tribes and bands of

Indians. Nor shall the cost of transporting the goods for the

annuity payments be charged upon the annuities, but shall be

defrayed by the United States.

-82-

Reservation May Be Surveyed

ARTICLE VI. The President may, from time to time, at his

discretion, cause the whole or such portions of such reserva-

tion as he may think proper, to be surveyed into lots, and assign

the same to such individuals or families of the said confederated

tribes and bands of Indians as are willing to avail themselves

of the privilege, and will locate on the same as a permanent

home, on the same terms and subject to the same regulations

as are provided in the sixth article of the treaty with the

Omahas, so far as the same may be applicable.

Annuities Not to Pay Debts of Individuals

ARTICLE VII. The annuities of the aforesaid confederated

tribes and bands of Indians shall not be taken to pay the debts

of individuals.

ARTICLE VIII. The aforesaid confederated tribes and bands

of Indians acknowledge their dependence upon the government

of the United States, and promise to be friendly with all citizens

thereof, and pledge themselves to commit no depredations upon

the property of such citizens.

And should any one or more of them violate this pledge, and

the fact be satisfactorily proved before the agent, the property

taken shall be retirned, or in default thereof, or if injured or

destroyed, compensation may be made by the governmen: =:1t

of the annuities.

Not to Make War But in Self Defense

Nor will they make war upon any other tribe, except in self-

defense, but will submit all matters of differences between them

and other Indians to the government of the United States or

its agent for decision, and abide thereby, and if any of the said

-83-

Indians commit depredations on any other Indians within the

territory of Washington and Oregon, the same rule shall prevail

as that provided in this article in case of depredations against

citizens. And the said confederated tribes and bands of Indians

agree not to shelter or conceal offenders against the laws of

the United States, but to deliver them up to the authorities

for trial.

ARTICLE IX. The said confederated tribes and bands of

Indians desire to exclude from their reservations the use of

ardent spirits, and to prevent their people from drinking the

same, and, therefore, it is provided that any Indian belonging

to said confederated tribes and bands of Indians, who is guilty

of bringing liquor into said reservation, or who drinks liquor,

may have his or her annuities withheld from him or her for

such time as the President may determine.

Wenatshapam Fishery Reserved

ARTICLE X. And provided, That there is also reserved and

set apart from the lands ceded by this treaty, for the use and

benefit of the aforesaid confederated tribes and bands, a tract

of land not exceeding in quantity one township of six miles

square, situated at the forks of the Pisquose or Wenatshapam

River, and known as the “Wenatshapam fishery”, which said

reservation shall be surveyed and marked out whenever the

President may direct, and be subject to the same provisions

and restrictions as other Indian reservations.

-84-

When Treaty to Take Effect

ARTICLE XI. This treaty shall be obligatory upon the

contracting parties as soon as the same shall be ratified by the

President and Senate of the United States.

(955) In testimony whereof, the said Isaac I. Stevens, gover-

nor and superintendent of Indian affairs for the ‘Territory of

Washington, and the undersigned head chief, chiefs, headmen,

and delegates to the aforesaid confederated tribes and bands

of Indians, have hereunto set their hands and seals, at the place

on the day and year hereinbefore written.

ISAAC 1. STEVENS, Governor and Superintendent

KAMIAKUN, his X mark

SKLOOM his X mark

OWHI, his X mark

TE-COLE-KUN,his X mark

La-HOOM, his X mark

ME-NI-NOCK, his X mark

ELIT PALMER, his X mark

WISH-OCH-KMPITS, his X mark

KOO-LATTOOS, his X mark

SHEE-AH-COTTE, his X mark

* “ K-QUILLE, his X mark

KA-LOO-AS, his X mark

SCHA-NOO-A, his X mark

SLA-KISH, his X mark

-85-

Signed and sealed in presence of:

J: MES DOTY, Secretary of Treaties |

MIE. CLES (JEAN CHARLES) PANDOSY, 0O.M.I.

WM. C. McKAY

W.H. TAPPAN, sub Indian agent, W-T.

C. CHIROUSE, O.M.I.

PATRICK McKENZIE, Interpreter

A.D. PAMBURN (PAMBRUN), Interpreter

JOEL PALMER, Supt. of Indian Affairs, OT.

W.D. BIGLOW

A.D. PAMBURN (PAMBRUN), Interpreter

And whereas, the said treaty having been submitted to the

Senate of the United States for its constitutional action thereon,

the said Senate did, on the eighth day of March, one thousand

eight hundred and fifty-nine, advise and consent to the ratifica-

tion of the same by a resolution in the words and figures

following, to wit:

“IN EXECUTIVE SESSION,

“SENATE OF THE UNITED STATES, March 8, 1859

“Resolved, (two thirds of the senators present concurring,)

That the Senate advise and consent to the ratification of treaty

between the United States and the head chief, chiefs, headmen,

and delegates of the Yakama, Palouse, and other confederated

tribes and bands of Indians, occupying lands laying in Wash-

ington Territory, who, for the purpose of this treaty, are to be

considered as one nation, under the name of “Yakama”, with

Kamiakun as its head chief, signed 9th June, 1855.

“Attest:

“ASBURY DICKENS, Secretary”

Now, therefore, be it known that I, JAMES BUCHANAN,

President of the United States of America, do, in pursuance

of the advice and consent of the Senate, as expressed in their

resolution of March eighth, one thousand eight hundred and

fifty-nine, accept, ratify, and confirm the said treaty.

(956) In testimony whereof, I have hereunto caused the seal

of the United States to be affixed, and have signed the same

with my hand.

Done at the city of Washington, this eighteenth day of April,

in the year of our Lord one thousand eight hundred and fifty-

nine, and of the independence of the United States the

eighty-third.

JAMES BUCHANAN

By the President:

LEWIS CASS, Secretary of State

-88-

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,

fs 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

-89-

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 decision 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-

-90-

mined. Under the circumstances created bv

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

approvai 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

-9]-

the Buresu 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

inadequate 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 rot 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 Piver who are not litigants.

Further, administrative acceptance of the

-92-

lama

judgment by the interested agencies of 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 after that date.

For the purposes of administration the

Project was divided into the Sunnyside

Division composed of several irrigation

districts, Tieton Division which is

~93-

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 needs

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

-94-

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 State- 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 coutinued 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 qu intities of

water, The carrying Capacity of the

Washington Irrigation Company's canal was at

the time of transfer to the United States

-95-

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.

-96-

tg

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

sezved 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

-97-

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.

-98-

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

cnaracter 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

-99-

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 in 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.

-100-

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.

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

-L0i-

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 Divisio... 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

-102-

| |

Yakima River. By the Act of August l, 1914,

Ch. 222, 38 Stat. 582, the wowgress 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 the 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

-103-

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.

-104-

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 strean. By the

entry of the consent judgment there will be

established a basis upon which the Bureau of

-105-

Reclamation or 4. 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

-~106-

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

-107-

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.

(qd) 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.

(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), (bk), (c), and (da). 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

-109-

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

-110-

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

)

)

)

r)

)

)

)

)

)

)

)

)

)

)

)

)

r)

)

r)

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-

-)

3)

)

)

)

)

)

)

)

)

)

)

)

NO. 21

JUDGMENT

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

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

that the

a Motion for Entry of Judgment;

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

“i127

MPO Ae MAME Ng trp Een Tig bMS HOH eR A ES vip eet

18

PL ALE ELITE RES TE LIP AAI ONAN N CRA MNBEE fe

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:

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.

2% 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

“iis”

lands within the Wapato Indian Irrigation

Project, are as set forth hereafter in this

judgment.

ce 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:

-1i4é-

3 Damo caka een ke eee AS Arty deg abe

slits aS REIN hella Sai ia ESE

Psat tl DO RN ke Mee nee

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.

~1Li5=

(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

340,944

(b) PROSSER IRRIGATION DISTRICT.--The

United States shall divert into the Sunnyside

Canal 7,347 acre-feet of water annually,

-116-

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 1,

1917, with the Prosser Irrigation District,

at Mile 53.05 and Mile 59.32 of the Sunnyside

Canal in an amount not exceeding the

following schedule:

-1li7-

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, inclus*we, and the

maximum rate of flow at the saia points of

delivery during any one month shall not

exceed the following schedule:

April 14 second-feet

May 16 " .

June 21 os "

July 21 ™ ”

August 21 . -

September 14 " "

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

-118-

AQ =<

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 sa , 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, shall be reduced by the proportional

amount applicable to the said 15.2] acres and

the amount of water to be delivered by the

United States pursuant to its contract with

-119-

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 shal” 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.

-120-

(c) SNIPES MOUNTAIN IRRIGATION

DISTRICT.--The United States shall divert

—— x ‘ —_—-~

mto 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

9,265 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 10.20, and (c) near Mile 6.42. The

-121-

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 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

-122-

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

-123-

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 guantity 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

«i 3¢=

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 Sunnyside 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 ©5353

August °53

September _ 36

Total 2.75

Provided, however, that water solely from the

natural flow of the Yakima River shall be

delivered by the United States during

~125-

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 ‘tthe 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 deliwered 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

~1L26-

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 tc

its contract with the Prosser Irrigation

District dated December 1, 1917, shall be

correspondingly i -reased.

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

-127-

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 2s 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

~128-

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 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 September

29, 1922, as amended by the contract of June

22, 1931, between the United States and the

Zillah Irrigation District. The United

States or its successor in the Operation of

-129=

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

diversion:

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 31,

inclusive, each year.

The foregoing quantities of water for

the Zillah Irrigation District shall be

increased 200 acre-feet upon the execution of

“130-

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,

~i33a~

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 Cda@&al, 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 0.48

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:

-132-

Month Rate of Flow

April 190.9 ¢.£.8.

May 12.6 6

June he ,

July 15.2 7

August 1322 .

September 10.9 Ks

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 jenevent 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

-133-

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.

(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 contract 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,

~1L3é-

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:

-135-

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 amended, shall deliver

-136-

:

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 kis

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 Contract

April 6 70

May ll 130

June 16 185

July L$ 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

=137-

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 tudgment. 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.

(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 amourts of water

provided for in a contract dated October 6,

-L3B-

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 fe37 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,

ind the monthly Supply of water shall not exceed

-he following schedule of deliveries:

Acre-feet

Month Total of Contract

April 2410

May 2960

June 3700

-139-

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,

-140-

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 1, 1914, 38

stat. 582, in perpetuity for lands within

the Sittin Saks ce 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.

-14i-

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

-142+

accordance with the following basic

schedule:

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

| or part of a season by agreement to be

entered into prior to or during the

irrigation season affected, between the

Project Superintendent 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

-143-

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 ferth 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

-144-

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 schedule:

Percent of

Month Season Total

April 9

May 21

June 20

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 vermit, subsequent to the

date of storage release, for use below Unicon

-145-

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 obligat...n of the United

States to deliver water is subject to the

conditions and limitations set forth in said

agreements.

Se 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:

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Average Rate of

Delivery in Cubic Delivery in

Month 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

-147-

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 thirteen (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

-148-

schedule of percentages of the total annual

diversion as hereinafter set forth:

During April 2%

™ May 17%

* June 21%

. July 21%

my August 20%

6 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 tc 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

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following irrigation districts in the amounts

set opposite the respective districts:

Yakima-Tieton Irrigation

District 18,000 acre-feet

Granger Irrigation District 1,800 " sf

Outlook Irrigation District 4,500 ‘ t

Grandview Irrigation District 3,000 7 -

Prosser Irrigation District 2,500 3 .

Zillah Irrigation District 200 ~ 5

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) East, W.M., 375,000 acre-feet of water

measured at or near said diversion works for

-130-

use upon lands within the boundaries of the

District. The annual irrigation season for

the delivery of water shall be from April 1l

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%

™ July 19%

7 August 19%

si 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

oS

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 c.f£.s. 60 c.f.s. 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

-152-

(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:

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Per Acre-feet

Month Cent Total of Contract

April 10 175.70

May lt 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 27,

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

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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.

-155-

The United States, in accordance with

the said contract of August 1, 1922, in

addition, shall deliver to the Company 25

c.f.s. 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 (SESE) 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

-156-

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, a3 ¢.f.8.

September 16 "

October 12 -s

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,

both 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

“15 7-

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

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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 Fin ¥

- June waa? "

_ July > .

" August és Se ?

” September — = 7

* October i -

4222

The maximum flow for any one month to be 13

c.f£.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

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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 i0t 70 acre-feet

s May 15 - po : ley _

- June 19 - «as .

7 July 19 - es "

‘x August 19 - + Rg a

' September 12 - | Bae .

" October 6 - Rg 7

Total 700

-160-

The quantity of water to be delivered

shall be limited to that which is available

in Wide Hollow Creer.

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 flow 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

-161-

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)

-162-

Sr reer ccreeee ee

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 suppiemented 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

-163-

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 ~ 6 Be. 8.64

August 521.6 8.48

September 357.7 6.01

October pM Re 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:

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April to August

inclusive September October

38 c.f.8. 29 ¢.f.8. 22 ©¢.f.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, a2 c.f.8.

September 8.4 ”

October 6.4 ”

Hubbard Ditch Company

April to August, inclusive, 27 CG. 2.8.

September 20.6 .

October 15.6 4

Such rights have been recognized by the

United States in its contract with the Moxee

Ditch Company, Sub-A, dated June 27, 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

-165-

contract of June 27, 1929. The annual

irrigation season for the delivery of water

shall be from April 1 to October 31,

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

-166-

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 agreement 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 avai.able in the

natural flow of the Yakima River:

April to

August September October

Limiting 105 cfs 105 cfs 100 cfs

agreement

water

Additional 11.77 " co. Si. Ses

water

Totals 116.77 * ‘tier 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

-168-

amounts not to exceed the following schedule

of deliveries:

During April 674 acre-feet

" May Bll " "

2: June a) ei ¥

2 July oh aaa .

rs August Lon 1

Total 4486 " ”

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.

-169-

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 1s c.f£.8., by a

conveyance recorded in Vol. 146 of Deeds,

page 566 of the Yakima County records.

The United States by its cortiract with

the Yakima Valley Canal Company, dated June

2, 1920, recognized in the Company the

foliowing rights or such part thereof as may

-170-

be available from the natural flow of the

Yakima River:

April to August

(both inclusive) September October

Limiting

agreement

water 62.5 cfs 40 cfs 30 cfs

Transferred

water ——_— TL. athe Fe ee

64 cfs 4i.5 Cis 30.735 cts

The United States shall deliver to the

Company each year, in accordance with the

contract of June 2, 1920, 4300 acre-feet of

2

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.

-171-

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

~172-

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

ordurite in the delivery of the quantities of

water to which they are entitled under the

preceding paragraphs of this judgment. If

-173-

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

-174-

. .

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

-175-

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

deliver 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 not 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,

-177-

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

-178-

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 limit of the water

rights for said lands not subject to

proration.

a. oe oro. 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, @ - @enee. Of. water in

accordance with the contract between the

-179-

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 ¢cates 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

-180-

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 to or from interfering

with any of the rights to the use or the

delivery of those quantities of water which

-~181-

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

-182-

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/ LL. B. Schwellenbach

Judge

-1383-

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.

wwwwwwe eee

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, United States Attorney for said

-184-

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 Reclamation 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,

-i65-

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

had, to-wit:

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

-186-

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,

-187-

p.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: ™he 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

-188-

represents, I would like tc 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 extended

summary of this judgment, if Your Honor

please, but I believe 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.

-189-

THE COURT: T 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

-190-

EE eee ee

an objection to it, but for the simple reason

that I 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.

x *

The omitted colloquy consists of a

verbatim reading by Mr. Connelly of the

-191-

"Statement to the Court" reproduced at pages

A-77 to A-98 of this Appendix.

x *« &

I would like to file that in the

prc ceedings.

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 Indien 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?

-192-

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 £€ Reclamation.

THE COURT: In addition to this 720 cubic

feet they have 350,000 acre feet, and the

-193-

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 250,000

acre feet, and on page 14, the final

-194-

rts

paragraph, there is set forth a reference to

the other contract which was entered into on

September 3, 1936, for 100,000 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 réfer 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?

MR. VEEDER: Yes, sir. There iS 4a

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.

-196-

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 anyt

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