In re Yakima River Drainage Basin

In re Yakima River Drainage Basin, 296 P.3d 835 (Wash. 2013) (holding in the dispute between the Yakima Nation and non-tribal landowners over Yakima River Basin water rights: (1) the Nation acreage must be re-calculated, (2) the Nation does have a right to water storage, (3) non-tribal users do have excess water rights within certain limitations, (4) and the future use exception should be narrowly applied).

The Yakima River Basin has been the subject of several cases and agreements going back to the 1855 Treaty between the United States and the Yakima Nation (“Nation”), which created the Yakima Reservation.  Under the Winters Doctrine, the creation of a reservation also establishes an implied water right to meet all present and future water needs on the reservation.  In 1908, the United States created a “Code Agreement” dividing water rights on the Yakima River, twenty-five percent to the Nation and seventy-five percent to non-tribal water users in the Basin on the north side of the Ahtanum Creek (“Northside users”).  In 1977, the Washington Department of Ecology (“DOE”) filed an action to determine surface water rights in to Yakima River Basin.

Since 1977, several adjudications took place culminating in the current case in point between the United States, the Nation, DOE, Ahtanum Irrigation District (“AID”), John Cox Ditch Company, Department of Natural Resources (“DNR”), and several individual water users including the La Salle High School, the Brules, Jerome Durnil, and Albert Lantrip.  The Supreme Court of Washington (“Court”) considered the following issues on appeal: (1) whether cases and agreements prior to and since 1977 determined Northside users’ water rights or Nation acreage, which is the measure of water necessary to irrigate all the irrigable acreage on a reservation, (2) whether non-Nation water users have a right to excess water, (3) whether there is a right to storage for the Nation, and (4) whether the court correctly applied the future use exception.

First, the Court decided the threshold question of whether previous litigation on the Yakima River Basin determined the terms of Northside users’ water rights.  The Court ruled United States v. Ahantum Irr. Dist. litigation in 1956 was an adjudication of the water rights for the Northside users; as a result, the Court need not adjudicate those rights again.  After settling this threshold question, the Court moved on to the question of what acreage the Nation held.  The Court reversed the trial court’s determination on the Nation’s acreage because it believed the trial court relied on old documents that were approximate claims rather than findings of fact.  As a result, the Court remanded the quantification of the Nation’s acreage.

Next, the Court turned to the question of whether previous agreements or cases provided a right to storage of water from the Yakima River to the Nation.  The Court held a plain language reading of the Pope Decree, the most recent federal court opinion on the Yakima River Basin, created a right to water storage for the Nation.  The Court remanded the case to allow the trial court to include a storage right in its calculations of the Nation’s acreage.

The Court then turned to the question of whether Northside users had a right to take in any excess water from the Yakima River after the Nation received its share.  The Court agreed with the trial court’s ruling in favor of granting excess water rights for qualifying Northside users.  The right to excess water existed regardless of whether or not there would ever be excess water.  However, the Court also upheld limitations the trial court placed on the excess water rights.  Based on its reading of the Pope Decree, the Court held that Northside users only have excess water rights until July 10, each year.  Additionally, the Pope Decree imposed a time limit of either thirty or forty-five days during which the Northside user could collect excess water.  While the John Cox Company alone challenged its forty-five day period, the Court upheld the trial court’s ruling, validating the forty-five day period, because the trial court based its decision on a sufficient amount of evidence, including ten years of water flow data indicating when there was usually excess water.  The Court then refused to allow excess water rights to extend to junior rights users, which would be any users not recognized by the Pope Decree.  Parties recognized by the Pope Decree could actually trace their water rights back through the 1908 Code Agreement and prior litigation.  The Court reasoned then that entities not party to the Code Agreement were not included in the Pope Decree and, as such, do not have a place in the allocation of water rights for the Yakima River Basin.

After settling the issues of water use, the Court turned to the question of how to correctly apply the future use exception.  The Court reversed the trial court because it applied the exception too broadly.  The Court held the exception applied only in narrow circumstances.  Resuming irrigation, rather than taking actual steps toward development, did not fit the exception.

Accordingly, the Court remanded the case to the trial court for further factual findings on the Nation’s practicably irrigable acreage and excess water rights, upheld the Northside users’ excess water rights within certain limitations, and reversed the trial court’s determination on an individual Northside user’s future development excuse for nonuse of water rights.