Amicus Curiae Brief — Joint Board of Control of the Flathead, Mission, & Jocko Irrigation Districts v. Confederated Salish & Kootenai Tribes of the Flathead Reservation

No. 87-1549 APR a3 1988

In The TLERK

Supreme Court of the United States

October Term, 1987

oO -_

JOINT BOARD OF CONTROL OF THE FLATHEAD,

MISSION AND JOCKO IRRIGATION DISTRICTS,

Petitioner,

CONFEDERATED SALISH AND KOOTENAI

TRIBES OF THE FLATHEAD RESERVATION,

Respondents.

i

O

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMICUS CURIAE BRIEF OF STATE OF MONTANA

ee ——(Q- ——— —

MicuaeEL T. GREELY"

Attorney General of Montana

Cray R. SMITH

Assistant Attorney General

Justice Building

"15 North Sanders

Helena MT 59620-1401

(406) 444-2026

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............ ii

STATEMENT OF INTEREST 1

ARGUMENT )

REVIEW OF THE McCARRAN AMENDMENT

QUESTION IS PREMATURE SINCE NEI-

THER THE DISTRICT COURT NOR THE

COURT OF APPEALS HAS CONCLUSIV ELY

DETERMINED THAT ISSUE

CONCLUSION

1

9

i]

TABLE OF AUTHORITIES

CASES: Page

Arizona v. San Carlos Apache Tribe, 463 U.S. 545

2 |). | enn ERED eR ech A aE I. Se ee passim

Colorado River Conservation District v. United

States, 424 U.S. 800 (1976) ....... Pre pat ee 7

Confederated Salish & Kootenai Tribes v. Flat-

head Irrigation & Power Project, 616 F. Supp.

1292 (D. Mont. 1985)

Joint Board of Control v. United States, No.

CV-87-105-M-CCL (D. Mont. July 21, 1987),

appeal docketed, No. 87-4106 (9th Cir. Aug. 20,

FIT YP ecneniiccseccstchsnscsicsioes-nopetebecdaiicote tiga ee nec en 4

Northern Cheyenne Tribe v. Adsit, 668 F.2d 1080

(9th Cir. 1982) 3

Northern Cheyenne Tribe vy. Adsit, 721 F.2d 1187

tL) eb ) SS Becersrese ley eer en 3

Northern Cheyenne Tribe v. Tongue River Water

Users Association, No. CV-75-6-BLG . . 3

State er rel. Greely v. Confederated Salish and

Kootenal Tribes, 712 P.2d 754 (Mont. 1985) 3

United States v. Aageson, No. CV-79-21-GF 3

United States v. Aasheim, No. CV-79-40-BLG 3

United States v. Abell, No. CV-79-33-M 3

United States v. AMS Ranch, Ine., No. CV-79-22-GF 3

United States v. Big Horn Low Line Canal,

No. CV-75-34-BLG 3

United States v. Superior Court, 144 Ariz. 265, 697

P.Pd Gd8 (1985) 3

United States v. Tongue River Water Users

Association, No CV thy 20) BLG 3

Winters v. United States, 207 U.S. 564 (1908) )

ill

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS:

Montana Constitution

Art. IX, § 3(4) es 2

STATUTES:

Montana Code Annotated

S§ 3-7-101 to 502 | oat eta ee

§ 3-7-201(3) . = Te ee 67 a 8

~/

S$ 85-2-201 to 248 ...... oer euro ‘ l

SRE Er

§ 85-2-406(2) _.. a eae a mension ioadisttalicciigetsctasian 8

$§ 85-2-701 to 703 on cccceseecseneeeeee | Sone 2

§ B5-2-704 (1) nee nevevnev nents ete ee

§ 85-20-2012 ee eee ee

Montana Session Laws

1973 Mont. Laws, ch. 452 yy)

1979 Mont. Laws, ch. 697 2

l'nited States Code

25 U.S.C. § 381 | ae Fo

United States Statutes at Large

12 Stat. 975 (1859) 2

TABLE OF AUTHORITIES—Continued

Page

OrHER AUTHORITIES:

Code of Federal Regulations

25 O.F.R. § 171.1 (1987) (

Federal Rules of Civil Procedure

Rule 41 : SEED Oe PRET NE pee 8

No. 87-1549

O

In The

Supreme Court of the United States

October Term, 1987

O

JOINT BOARD OF CONTROL OF THE FL. A THEAD,

MISSION AND JOCKO IRRIGATION DISTRICTS,

Petitioner,

CONFEDERATED SALISH AND KOOTENAI

TRIBES OF THE FLATHEAD RESERVATION,

Respondents.

iD

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ray

vv

AMICUS CURIAE BRIEF OF STATE OF MONTANA

Oo —

The State of Montana respectfully submits a brief

amicus curiae pursuant to S. Ct. R. 36.4.

STATEMENT OF INTEREST

The State of Montana has undertaken a general ad-

judication of all water rights existing as of July 1, 1973,

2

within its boundaries. Mont. Code Ann. §§ 85-2-201 to

943 (1987).! Such rights consist not only of those arising

under state law but also those deriving from federal law.

Of principal importance among the latter class are rights

deemed federally reserved for the seven Indian reserva-

tions located in Montana. See Winters v. United States,

207 U.S. 564 (1908). The Flathead Indian Reservation,

which was established for the respondent Confederated

Salish and Kootenai Tribes pursuant to the 1855 Treaty

of Hell Gate (12 Stat. 975 (1859)), is one such reserva-

tion. The Montana adjudication, along with Arizona’s,

gave rise to Arizona v. San Carlos Apache Tribe, 463 U.S.

545 (1983), which held that various actions initiated in

federal court by the United States or tribes seeking to

adjudicate Indian federally reserved rights were properly

stayed or dismissed to prevent the duplication of effort

and possible conflict attendant to concurrent state and

IMontana’s efforts to secure a comprehensive water rights

adjudication began with adoption of its 1972 Constitution.

Mont. Const. Art. IX, §3(4). In 1973, its Legislature enacted

legislation which provided for a general adjudication, by drain-

age, of all streams in the state through a series of lawsuits to be

filed by the Montana Department of Natural Resources and

Conservation. 1973 Mont. Laws, ch. 452. Six years later this

legislation was substantially revised and now provides for a

single, state-wide adjudication. 1979 Mont. Laws, ch. 697. The

1979 law also created a specialized court, known as the Water

Court, to carry out the adjudication and the Montana Reserved

Water Rights Compact Commission whose purpose is to nego-

tiate with the United States and Indian tribes over claims to fed-

erally reserved water rights. See Mont. Code Ann. §§ 3-7-101

to 502, 85-2-701 to 703. During pendency of Commission ne-

gotiations, the Water Court proceeding is suspended as to those

rights subject to such negotiations. Mont. Code Ann. §§ 85-

2-217, 85-2-704(1).

3

federal proceedings.2, On remand from San Carlos, the

Court of Appeals chose to stay the district court proceed-

ings until conclusion of the Montana general adjudication.

Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th Cir.

1983).

San Carlos left unresolved the issues of whether the

Montana and the Arizona courts possessed jurisdiction

under state law to resolve claims over the federally re-

served water rights and whether their adjudications were

otherwise adequate to determine such rights. $05 U.S. at

570 n.20. The Montana and Arizona Suprem Courts

thereafter addressed these issues and found that jurisdic-

tion over these rights was not disclaimed under state law

and that the involved statutory schemes were facially ade-

quate to decide the federal claims. State ex rel. Greely

v. Confederated Salish and Kootenai Tribes, 712 P.td 704

(Mont. 1985); United States v. Superior Court, 144 Ariz.

265, 697 P.2d 658 (1985). The Montana adjudication thus

2Seven actions were initiated in the United States District Court

for the District of Montana over a four-year period which led

to the Court of Appeals’ decision, Northern Cheyenne Tribe v.

Adsit, 668 F.2d 1080 (9th Cir. 1982), reversed in San Carlos.

Northern Cheyenne Tribe v. Tongue River Water Users Ass'n,

No. CV-75-6-BLG (filed Jan. 30, 1975); United States v. Tongue

River Water Users Ass’n, No. CV-75-20-BLG (filed March 7,

1975); United States v. Big Horn Low Line Canal, No. CV-75-34-

BLG (filed April 17, 1975); United States v. Aasheim, No. CV-79-

40-BLG (filed April 5, 1979); United States v. Aageson, No. CV-

79-21-GF (filed April 5, 1979); United States v. AMS Ranch, Inc.,

No. CV-79-22-GF (filed April 5, 1979); and United Siates v. Abell,

No. CV-79-33-M (filed April 5, 1979). The last of these cases,

United States v. Abell, was brought by the United States on its

own behalf and as trustee for the respondent Tribes and sought

adjudication of surface and ground water rights within the Flat-

head River basin which includes the entirety of the Flathead In-

dian Reservation.

+

continues although, with two exceptions, all federally re-

served rights are presently in negotiations with the Re-

served Water Rights Compact Commission.’

Montana accordingly has a direct interest in main-

taining the integrity of its general water adjudication. It

has invested substantial resourees in the state adjudica-

tion process and has opposed attempts sinee San Carlos

to seek determination in a federal forum of issues more

properly resolved in Water Court proceedings.* Insofar

3The exceptions are the Assiniboine and Sioux Tribes of the Fort

Peck Indian Reservation which reached a compact with the

Commission in 1985 (Mont. Code. Ann. § 85-20-201) and the

Blackfeet Tribe which has not yet entered into formal negotia-

tions with the Commission. Negotiations are ongoing between

the Commission and the respondent Tribes.

4As the Court of Appeals opinion below indicates, the present

controversy developed during the 1986 irrigation season, but

similar disputes arose in 1985 and 1987. (Pet. App. A-65.) The

1985 action, eventually dismissed as moot, was initiated by the

respondent Tribes, and Montana intervened as a deiendani for

the sole purpose of contesting the District Court’s authority un-

der San Carlos to resolve the Tribes’ request for determination

of their claim to an instream flow right for fisheries. Confeder-

ated Salish & Kootenai Tribes v. Flathead Irr. & Power Project,

616 F. Supp. 1292 (D. Mont. 1985). Montana similarly sought

intervention as a defendant in the 1987 action filed by the peti-

tioner, which challenged the 1987 Flathead Indian Irrigation

Project operating procedures on various grounds, again for the

exclusive purpose of contesting the District Court’s authority to

determine the parties’ respective water rights. The 1987 action

was dismissed in an unreported decision because of the

petitioner's failure to exhaust administrative remedies, and Mon-

tana’s intervention motion was denied as moot. Joint Board of

Control v. United States, No. CV-87-105-M-CCL (D. Mont. July

21, 1987), appeal docketed, No. 87-4106 (9th Cir. Aug. 20, 1987).

Montana did not request intervention in the 1986 District Court

proceeding at issue here because, as tramed, the complaint did

not seek adjudication of water rights but instead alleged only

breach of fiduciary, statutory, and constitutional obligations as-

sociated with adoption of that year’s irrigation operating pro-

cedures. (Pet. App. A-48.)

5)

as the first question presented by the petition herein®

raises an issue directly governed by San Carlos, Montana

has a focused and long-standing interest in whether a writ

of certiorari is granted to review it.

)

ARGUMENT

REVIEW OF THE McCARRAN AMENDMENT QUES.

TION IS PREMATURE SINCE NEITHER THE DIS-

TRICT COURT NOR THE COURT OF APPEALS HAS

CONCLUSIVELY DETERMINED THAT ISSUE.

The District Court expressly disclaimed any inten-

tion to adjudicate ‘‘the priority or quantity of legal rights

to the waters_of the Flathead Indian Reservation.’’ (Pet.

App. A-43.) The court later reiterated this disclaimer by

stating that its opinion should not be viewed as establish-

ing ‘‘precedent for any party’s use in the state of Mon-

tana’s water adjudication process. The purpose of this

decision is to provide interim guidance to the | Bureau

of Indian Affairs], the Tribes, and the | petitioner] until

a final adjudication of water rights is made.”* (Pet. App.

‘That question reads: “Does the determination of the Court ot

Appeals requiring the district court to adjudicate the priority

and quantification of an Indian aboriginal claim to water violate

the federal policy embodied in the McCarran Amendment and

decisions of this Court entered thereunder when there is a valid

and ongoing state water adjudication process which is adequate

to determine water rights claims at issue and in which the In-

dian tribe is presently participating?”

6Montana takes no position with respect to the second question

presented in the petition. That question raises the issue of

whether the petitioner's exclusion from the administrative pro-

cess of setting minimum reservoir pool levels and instream flow

amounts effects a taking of property without due process of law

6

A-44.) Relying principally on 25 U.S.C. $381 and 20

C.F.R. (171.1 (1987), the District Court coneluded that

the Bureau of Indian Affairs had breached its duty to

consult with the petitioner before formulating the Flat-

head project’s 1986 water management plan. (Pet. App.

A-57.) It therefore found proper issuance of a prelim-

inary injunction to enjoin implementation of that plan.

(Tbid.) In later dicta the court commented that, while it

was ‘not so much concerned with the Bureau’s ultimate

specifie decisions pertaining to administration of the Flat-

head Irrigation Project, as | am interested in the manner

in which such decisions are reached|,| .. . ‘| just and

equal distribution’ is a guiding principle for project man-

agement.’’ (Pet. App. A-60.)

The Court of Appeals reversed, reasoning that the

District Court’s reference to a ‘‘just and equal distribu-

tion’’ requirement contained two assumptions, the first of

which may be and the second of which is incorrect: (1)

the competing water claimants have equal priority dates,

and (2) 25 U.S.C. $381 and 25 C.F.R. § 171.1 apply to

the respondent Tribes’ claims for instream flows to main-

tain fisheries. (Pet. App. A-66-A-67.) It accordingly

found ‘‘colorable,’? but did not resolve, the respondent

Tribes’ claim that its instream flow rights possess an

aboriginal or ‘‘time immemorial’’ priority which would

clearly antedate any irrigation right priority; it then

wholly rejected the District Court’s reliance on 25 U.S.C.

B81 and 25 C.F.LR. $171.1 as requiring the Bureau of

Indian Affairs to consult with the petitioner before adopt-

ing annual irrigation flow procedures since ‘‘those pro-

Visions imposed duties upon the BIA in maintaining the

Project’s irrigation water in fairness to all irrigators ...

jand| do not deal at all with the BIA‘s duty in helping the

7

Tribes to protect their prior and paramount fishing water

’

rights.’’ (Pet. App. A-68, A-69) (emphasis in original).

The Court of Appeals therefore vacated the preliminary

injunction, statine that, although *‘|wle do not suggest

that the [district] court is required to make any ... gen-

eral adjudication or quantification in the course of these

proceedings|,| . . . the preliminary injunction under re-

view, aud the principle established tor future irrigation

years by the district court’s opinion, fail to accord poten-

tially superior tribal fishing rights the protection that

federal law gives them against claims and considerations

of junior appropriators.’? (Pet. App. A-70.)

Both opinions below evince concern over determining

through federal court proceedings issues which are other-

wise subject to resolution in the Montana general water

adjudication. Such concern is clearly justified not only

by the arguably res judicata effect of San Carlos as to the

appropriate forum for adjudication of the respondent

Tribes’ reserved rights but also by the more general ab-

stention principles underlying that decision and Colorado

River Water Conservation District v. United States, 424

U.S. 800 (1976). Consistent with this concern, the Court

of Appeals decision does not require the District Court to

adjudicate either the existence of an instream flow right

alieged to arise under the Hell Gate Treaty or the priority

date of such right wnless the latter court determines to

issue substantive relief concerning the proper allocation of

Flathead project waters. The Court of Appeals thus im-

8

plicitly left for consideration on remand the question

of whether abstention is proper.’?. Should this matter pro-

ceed further before the District Court, Montana will seek

intervention to argue, as it did in 1985 and 1987, that San

Carlos dictates presentation of the dispute to the Water

Court for resolution.’

Finally, it must be emphasized that, with respect to

the MeCarran Amendment question, the petitioner largely

7The District Court rejected the United States’ argument below

that exercise of federal jurisdiction should be deferred to the

Water Court in accordance with San Carlos. (Pet. App. A-37 -

A-38.) The court’s rejection, however, must be viewed in the

overall context of its decision which sought to resolve the con-

troversy on essentially procedural grounds—i.e., on the basis_

that the 1986 irrigation plan was defective insofar as the peti-

tioner had not been consulted prior to adoption. How the Dis-

trict Court will rule upon the abstention question in light of the

Court of Appeals’ opinion and the former’s emphatic refusal

to adjudicate ‘‘the priority or quantity of legal rights to the wa-

ters of the Flathead Irrigation Project’ (Pet. App. A-43) remains

an open issue. The Court of Appeals obviously recognized the

District Court's sensitivity to San Carlos and, just as obviously,

did not intend to foreclose that court from abstaining on re-

mand. Indeed, had the Court of Appeals summarily held other-

wise, palpable conflict with San Carlos would have arisen.

8While not directly relevant for instant purposes, the District

Court's statement that “there is no state forum available at this

time for the parties to air their differences over water manage-

ment problems existing on the Reservation” (Pet. App. A-38) is

erroneous to the exteni it suggests the Water Court lacks present

authority to determine issues relating to the substantive rights

of the parties to the use of water. As noted above, adjudica-

tion of federally reserved rights subject to ongoing negotiations

with the Montana Reserved Water Rights Compact Commission

is suspended pending the outcome of those negotiations. De-

spite such suspension the Water Court is vested with authority

under Mont. Code Ann. § 85-2-231(1)(d) to issue interlocutory

decrees ‘‘necessary to the orderly administration of water rights

prior to the issuance of a preliminary decree.” Furthermore,

(Continued on following page)

9

controls its own destiny. Because the action below was

filed by it, the petitioner may request dismissal under Fed.

R. Civ. P. 41 and, if the 1988 irrigation water manage-

ment plan presents allocation problems similar to those in

1986 and 1987, initiate a Water Court proceeding to vin-

dieate ifs claimed rights. The Court of Appeals decision

therefore has little practical effect on the petitioner as to

this question, and the lack of such effect eviscerates any

contention that it is substantial.

CONCLUSION

The State of Montana respectfully requests that the

petition be denied as to the first question presented.

Respectfully submitted,

MicuakEL T. GrEELY*

Attorney General of Montana

Cray R. Sauru

Assistant Attorney General

Justice Building

215 North Sanders

Helena MT 59620-1401

(406) 444-2026

*Counsel of Record

April 1988

(Continued from previous page)

because a Water Court judge also serves as a district court judge

for each judicial district wholly or partially within his Water

Court division (Mont. Code Ann. § 3-7-201(3)), he is empow-

ered under Mont. Code Ann. § 85-2-406(2) to grant “such in-

junctive or other relief which is necessary and appropriate to

preserve property rights or the status quo pending the issuance

of [a] final decree.”