# Appendix — Sunnyside Valley Irrigation District v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0745%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 474 U.S. 1032 ## Text —* 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 WRIGHT, Circuit Judge: The opinion filed on September 10, 1982, is withdrawn and replaced by this opinion.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 Eng [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0745%3A2. Public record. Not legal advice.