June 12, 2017

By Matthew Blanksma, Legal Intern, Macomber Law, PLLC**

If you own, use, or are thinking of acquiring property in North Idaho, you may be affected by an Idaho Court’s recent ruling in the Coeur d’Alene Spokane River Basin Adjudication. The water right you buy with that property may be affected by a recent Idaho Fifth District Court ruling.

In 2008, following legislative action, the Fifth Judicial District Court of Idaho commenced the Coeur d’Alene Spokane River Basin Adjudication (CSRBA). The order made the United States (as custodian for Indian tribes), the Tribes, the State, local governments, and private property owners parties to the adjudication of water rights in the Coeur d’Alene-Spokane Rivers water system.

On May 3, 2017, the Court issued an Order on a Motion for Summary Judgment in the Adjudication that determined which of the 353 Coeur d’Alene tribal water rights claims the Federal Government is entitled to pursue as federal reserved rights.  So, what is a “federal reserved right?” A brief look at history will answer this question.

On November 8, 1873, President Grant established the Coeur d’Alene tribal reservation by executive order, but his order did not expressly include water rights for the land. To address the question of implied water rights for reservations, the United States Supreme Court created the Reserved Rights Doctrine in Winters v. United States.[1] The doctrine states that when the Federal Government removes land from the public domain and reserves it for a federal purpose, in this case an Indian reservation, it also impliedly reserves as appurtenant unappropriated water necessary to achieve the primary federal purpose for removing the land from the public domain.[2] Thus, pursuant to this doctrine the United States acquires reserved rights to unappropriated water that vest on the date the reservation was created, and that are superior to any future appropriator.[3] The doctrine’s scope is limited to waters reserved for the primary purposes of the reservation.[4] Where water is used for secondary purposes, the government must acquire water the same way any other private or public appropriator would acquire it.[5]

In other words, if the water right is necessary for a primary purpose of the tribe, it was reserved for that purpose. If it is used for a secondary purpose, it was not reserved under the 1873 executive order. On May 3, 2017, the Court’s Order on a Motion for Summary Judgment ruled on what water rights were reserved to the Coeur d’Alene Tribe’s use for the primary purposes of President Grant’s creation of the reservation. What is a primary purpose, and what are the primary purposes for the Coeur d’Alene Tribe’s reservation?

In Winters, the Supreme Court noted the Federal Government’s policy for establishing tribal reservations was to change the lifestyle “of a nomadic and uncivilized people” to “a pastoral and civilized people.”[6] With this in mind, the Idaho Court determined that the primary purposes of the Coeur d’Alene reservation were to establish irrigation for agriculture, domestic use, and to support hunting and fishing; therefore, the Federal Government reserved rights for those uses.[7]

Now what about other water rights for other uses? How are they treated?

The Court found little support in the 1873 executive order for the Federal Government’s claims to water rights for other purposes such as industrial, commercial, water storage, power generation, aesthetics, and recreation, and no support at all for use to maintain the levels of Lake Coeur d’Alene.[8] Therefore, the Court held these were secondary purposes and that the Federal Government must file claims for such water rights under Title 42 of Idaho Code, just like an everyday citizen.[9]

Once the court determined which rights were reserved and which were not, it addressed the matter of priority dates. In case of a shortage, who gets water and who does not?

The Coeur d’Alene Tribe’s agriculture (irrigation) rights vested as of November 8, 1873.[10] Hunting, fishing, and domestic rights were vested as of “time immemorial” according to ancient tribal practice, but with a caveat.[11] Surface water rights for domestic use carry the priority date of “time immemorial,” but Indians did not have groundwater wells since time immemorial, therefore the 979 current and future domestic wells on the reservation have the November 8, 1873 priority date.[12]

Both the primary and secondary purposes doctrines and the priority of water rights discussed above only affect land that was held by and titled in tribal members’ names since the executive order in 1873. How does the Order affect tribal land that was homesteaded by non-Indians and then reacquired by the tribe? Does the water right still have the November 8, 1873 priority date?

The Court applied the rule from U.S. v. Anderson that the priority date for tribal land homesteaded by non-Indians and later reacquired by the tribe is either the date on which the homesteader perfected the right under state law, or if no right was perfected, the date on which the land was reacquired.[13] Therefore, water rights for land reacquired from non-Indians do not carry the November 8, 1873 priority date.[14] If you’re unsure whether the title was reacquired from non-Indian settlers, a search and review of the title and water rights is necessary to determine the status of the water right.

What if a tribal right claims a point of diversion outside the reservation? Is that claim valid?

The Court determined the Federal Government is not entitled to water rights outside the reservation boundaries because Grant’s executive order had no express provision for them and the purpose of the executive order was for the tribe to give up all claims off the reservation.[15]

In summary, Coeur d’Alene Tribal water rights for irrigation, domestic use, hunting, and fishing serve the primary purposes of the reservation and are therefore federally reserved rights with priority of use dates of November 8, 1873, and “time immemorial,” respectively. If a parcel was homesteaded by a non-Indian and later reacquired by the tribe, its water right vested either on the date the homesteader perfected it according to State law, or if the right was not perfected, on the date the Tribe reacquired title to the land.

If you have or want to buy land on the Coeur d’Alene reservation, you should verify the status of any existing water rights through an investigation of the chain of title ownership, and the priority date of the water right given its purpose.  A buyer of property within the reservation should specifically determine the stated purpose for the water right’s use when that water right was originally created. Beneficial stewardship of private property rights, including water rights, starts with the initial purchase.

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**Matthew Blanksma has completed his first year at the University of Idaho Law School, and is presently serving as a Legal Intern for Macomber Law, PLLC. Mr. Blanksma’s blog post was verified to be correct by Art Macomber, the firm’s Managing Attorney.  However, this post does not constitute legal advice, but merely an interpretation of the Court’s May 3, 2017 Order.

Endnotes:

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

[2] Cappaert v. United States, 426 U.S. 128, 138 (1976).

[3] Id.

[4] U.S. v. New Mexico, 438 U.S. 696, 715 (1978).

[5] Id. at 702.

[6] Winters, 207 U.S. at 576.

[7] Order on Mot. for Summ. Judgment, Twin Falls Case No. 49576, SRBA Subcase No. 91-7755, 6 (May 3, 2017).

[8] Id. at 14-15.

[9] Id. at 9; Note: The federal government is subject to Idaho State water law pursuant to the McCarren Amendment, see 43 U.S.C. § 666.

[10] Id. at 17.

[11] Id. at 18.

[12] Id.

[13] U.S. v. Anderson, 736 F. 2d 1358, 1363 (9th Cir. 1984).

[14] Order on Mot. for Summ. Judgment, Case No. 49576, at 18.

[15] Id. at 15-16.