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Acquavella – Washington’s 36-Year Old Water Rights Adjudication Nears an End

April 16, 2013

The Washington Supreme Court’s recent opinion in Department of Ecology v. Acquavella (“Acquavella V”) brings water users in eastern Washington closer to the end of a 36 year battle over water allocation in the state’s most fertile agricultural region. Acquavella is the Washington Department of Ecology’s (“Ecology’s) lengthy effort to adjudicate approximately 40,000 claimed rights to surface water in the Yakima River Basin. The Supreme Court’s latest opinion (Acquavella V) is significant for several reasons. First, it affirms that the Yakama Tribe’s “reserved” water rights include the right to store water during non-irrigation season. Second, the Supreme Court held that the trial court in the Acquavella Adjudication failed to determine the amount of irrigation water available to the Yakama Indian Nation and, therefore, remanded the case to determine that amount. Third, the Court also held that the trial court erred when it applied the “determined future development” exception to excuse a private party’s non-use of its water rights.

On remand, once the trial court resolves the remaining issues with the Conditional Final Order (“CFO”) for the final subbasin of the Yakima Basin – the Ahtanum Subbasin – it can move to enter a Final Decree to resolve the case. Water rights confirmed in the CFOs for each of the subbasins will be integrated into the Final Decree and Ecology will issue certificates for each confirmed water right. The Final Decree is intended to assist Ecology and, as applicable, the Bureau of Reclamation, in regulating water use in the Yakima Basin. Each certificate issued under the decree will include a priority date, purpose of use, quantity, point of diversion, place of use, and any applicable limitations. Issuing those certificates should bring to a close Washington’s longest-running general adjudication.

Background

Ecology began the Acquavella “general adjudication” in October 1977 after meteorologists predicted record drought for the Basin. A general adjudication is a statutorily authorized judicial process similar to a “quiet title” action, in which all parties “claiming to use waters of a river or stream are joined in a single action to determine water rights and priorities between the claimants.”[1] It is intended to sort out all claims to surface water in a basin, establishing the extent, validity, and priority of existing water rights.[2] Each defendant-claimant is given the opportunity to present evidence: (1) supporting the validity of its claim; and (2) contesting the claims of the other defendants-claimants. Ultimately, the court enters a judgment setting forth all confirmed rights so that in times of shortage all water right holders know who is entitled to exercise their rights.

A general adjudication does not create new water rights, it only confirms existing rights.[3] Under Washington’s priority system, most water claims are administratively addressed by Ecology and the state’s Pollution Control Hearings Board.[4] However, federal reserved water rights and Indian reserved water rights are based on principles of federal law. Under the “McCarran Amendment,”[5] Congress consented to the states naming the United States as a defendant in a general adjudication, both in its direct capacity and as a trustee for one or more Indian Tribes. Thus, a general adjudication is the most appropriate means to address uncertainties over federal and Indian reserved water rights.[6]

The Acquavella Adjudication

The Acquavella adjudication is an action to quiet title to all surface water rights in the Yakima River Basin, including the entire Yakima Reclamation Project. The case demonstrates the substantial time and resources necessary for a basin-wide adjudication and raises the question whether such adjudications are cost efficient or effective.

The Acquavella adjudication involves parties spread over a vast 6,062 square mile basin.[7] The Yakima River commences at the crest of the Cascade Range near Snoqualmie Pass and flows generally southeasterly 175 miles, where it empties into the Columbia River. Its major tributaries are the Kachess River, the Cle Elum River, the Teanaway River, Ahtanum Creek, Toppenish Creek, Satus Creek, and the Naches River. The Yakima River Basin includes a large part of the Yakama Indian Reservation; six large reservoirs with a total storage capacity of 1,070,700 acre-feet of water; and six hydroelectric plants, two operated by the United States Bureau of Reclamation, two operated by the United States Bureau of Indian Affairs, and two operated by Pacific Power and Light Company.

The Bureau of Reclamation began building a large irrigation project in the Yakima River Basin in 1905. The Yakima Reclamation Project, as it is known, has 1,946 miles of canals. The Bureau of Indian Affairs constructed the Wapato Project, which has 786 miles of canals, and receives its water under a contract with the Bureau of Reclamation. As of 1973, approximately 475,000 acres were under irrigation in the Yakima River Basin. 

The Acquavella adjudicationhas more than 6,600 defendants, including individual water users, irrigation districts, state agencies, the Yakama Indian Nation, and the federal government. The case has already been the subject of prior Washington Supreme Court decisions. In Sunnyside Valley Irrigation District v. Department of Ecology (“Acquavella I”),[8] the Court held that Ecology met its procedural due process burden when it served notice of the adjudication on water suppliers rather than serving all individual water users who got their water under contract from water distributing entities. In Department of Ecology v. Yakima Reservation Irrig. Dist. (“Acquavella II”),[9] the Court addressed the scope of the Yakama Nation’s tribal reserved water rights. Finally in, Department of Ecology v. Acquavella (“Acquavella III”),[10] the Court addressed the validity of the trial court’s water award to the Yakima-Tieton Irrigation District. In Department of Ecology v. Acquavella (“Acquavella IV”),[11] Division Three of the Washington Court of Appeals affirmed the trial court’s ruling that a decree from a different adjudication, declaring various water rights in a tributary to the Yakima River (the Teanaway River), meant the doctrine of res judicata barred a claimant from relitigating those rights in the Acquavella proceeding.

Because the Acquavella case is so large, the trial court divided claims into four pathways to be determined in the following order:

  • Federal reserved rights for Indian claims;
  • Federal reserved rights for non-Indian claims;
  • State-based rights of major claimants; and
  • State-based rights for other claimants, by sub-basin.

There are thirty-one total sub-basins in the Yakima River Basin. The Supreme Court’s recent decision focuses on surface water rights in the Ahtanum Creek Subbasin (Subbasin 23), the final subbasin to be considered in the Yakima adjudication. The Court had entered Conditional Final Orders (“CFO”) for each pathway and for each subbasin, except Ahtanum. The Ahtanum Creek Subbasin is unique because it forms the northern boundary of the Yakama Indian Reservation and is thus home to many major water claimants, including the United States as trustee to the Yakima Nation[12], the Nation[13], Ahtanum Irrigation District[14], and the John Cox Ditch Company[15].

With the entry of the CFO for the Ahtanum Creek Subbasin the adjudication was essentially concluded. However, each of the major entities involved in the Subbasin and several individuals appealed the CFO. In 2002, the trial court issued a 481-page report concerning water rights for the Ahtanum Creek Subbasin. The parties filed exceptions to the 2002 report and conducted additional evidentiary hearings, and in 2008 the court issued a 388-page supplemental report. In May 2009, the court issued a CFO on the Subbasin and the parties appealed to the Supreme Court.

The Acquavella V Decision

On March 7, 2013, the Supreme Court issued its Acquavella V decision on those appeals. The complex legal history underlying the Acquavella V decision includes the following milestones:

  • 1855 Treaty between the Yakama Nation and the United States.
  • 1908 “Code” Agreement entered on behalf of the Yakima Nation by the chief engineer of irrigation for the Bureau of Indian Affairs, W.H. Code, and the United States secretary of the interior.
  • 1926 “Achepohl Decree” apportioning Ahtanum Creek water among users north of the creek, except the Yakama Nation, who was not a party to that adjudication process.[16]
  • United States v. Ahtanum Irrigation Dist. (Ahtanum I),[17]decision recognizing the Yakima Nation’s Winters rights and affirming the Code Agreement.
  • United States v. Ahtanum Irrigation Dist. (Ahtanum II or “Pope Decree”),[18]decision decreeing water rights in Ahtanum Creek among the United States, the Yakama Nation, and the “Northside users” (John Cox, Ahtanum Irrigation District, La Salle High School, and several individuals).

Several of the key issues addressed in Acquavella V involve the quantity of water allocated to the Yakama Nation, particularly under the Pope Decree. A tribe’s water rights reserved for irrigation are determined by the “practicably irrigable acreage standard (“PIA”).” PIA is determined by calculating “the amount of water sufficient to irrigate all the practicably irrigable acreage on a reservation.”[19] It is a measure of how much land is and could feasibly be irrigated in the future.[20] The trial court looked to the record established in Ahtanum I and II to determine that the reservation’s PIA is 4,107.61 acres.[21]

On appeal to the Washington Supreme Court, the U.S. asked the court to reverse and remand the case and determine, among other things,[22] that:

  • The reservation’s PIA is 6,381.3 acres, based on evidence the U.S. presented to the trial court.[23]
  • The trial court erred when it limited the reservation’s water use to the irrigation season from April 1 to October 1. Arguing that the Pope Decree allows the tribe to exercise its treaty rights and divert water year-round.
  • The trial court erred when it determined that the Pope Decree precludes the Nation from exercising a storage right.
  • The trial court improperly included in its confirmation of the United States’ right a number of non-Indian successors to what was once tribal land.

The Yakama Nation joined the U.S. on these arguments. The Washington Department of Ecology also agreed with the United States and the Nation that the trial court should have used the PIA standard – rather than relying on the federal Ahtanum litigation – to quantify the reservation’s irrigation right, and that the trial court erred in holding there was no right to take water outside the irrigation season, no right to store water.[24]

Central to each of these issues was a question of whether the federal Ahtanum cases “constituted merely an allocation of water rights as between the reservation and the Northside users or an adjudication of the Northside users’ water rights.”[25] The Court determined that the federal Ahtanum litigation was an adjudication of the Northside users’ rights. The Court went on to hold that although there were several figures available from the Ahtanum record quantifying or approximating the Yakama Reservation’s PIA, “[n]owhere in the Ahtanum federal district court proceedings was there a finding of fact as to the reservations practicably irrigable acreage.”[26] For that reason, the Court remanded the case to the trial court to determine the Reservation’s PIA.

Significantly, the Supreme Court also held that the trial court erred when it denied the Yakama Reservation a right to store water during the non-irrigation season from October to April.[27] The Court simply determined that the Pope Decree did not – by its plain language – foreclose a storage right and, therefore, that the trial court erred. The Court did not, however, provide any further analysis or guidance for determining when a federal reserved water right includes a storage right. The Court directed the trial court to determine the extent of the Reservation’s storage rights as part of its PIA determination.

The Supreme Court also held that the trial court erred when it confirmed a water right for the Hagemeiers (individual water claimants). The Hagemeiers bought irrigated land in approximately 1986 intending to live on it and use it as pasture. Career obligations, however, kept them from carrying out their plans for nine years, at which point they began to irrigate the land. Ecology argued that the Hagemeiers had relinquished their right to water by failing to continuously use the water. The trial court disagreed, finding that the Hagemeiers nonuse was excused under Washington’s “future use” statute.[28] Under that statute, “there shall be no relinquishment of any water right … [i]f such right is claimed for a determined future development to take place either within fifteen years of July 1, 1967, or the most recent beneficial use of the water right, whichever date is later.” In Washington, water rights are relinquished after five consecutive years of nonuse.[29] The trial court reasoned that the Hagemeiers made it into the future use safe harbor by resuming water use within fifteen years. The Supreme Court disagreed, concluding that the trial court read the “future use” exception too broadly. The Court held that the facts showed that the Hagemeiers did not take any steps toward “development” and, therefore, did not meet their burden of establishing the exception.

For more information about Marten Law’s Water Resources practice please contact Jeff Kray.

[1] Dep’t of Ecology v. Acquavella, 100 Wn.2d 651, 652-53, 674 P.2d 160 (1983) (Acquavella I); Chapter 90.03 RCW. The Washington Department of Ecology currently has eighty petitions on file requesting general adjudications. The agency started preliminary work in 2007 for a Spokane-area adjudication.

[2] RCW 90.03.110, et seq.; RCW 90.44.245.

[3] RCW 90.03.245.

[4] See Ch. 90.03 RCW (surface water) and Ch. 90.44 (groundwater).

[5] 43 U.S.C. § 666(a).

[6] See Metro. Water Dist. of So. California v. United States, 830 F.22d 139 (1987)(citations omitted).

[7] Sunnyside Valley Irrigation District v. Department of Ecology, 100 Wn.2d 651, 674 P.2d 160 (1983).

[8] 100 Wn.2d 651, 674 P.2d 160 (1983).

[9] 121 Wn.2d 257, 850 P.2d 1306 (1993).

[10] 131 Wn.2d 746, 935 P.2d 1306 (1997).

[11] 112 Wn. App. 729, 51 P.3d 800 (2002).

[12] The U.S. acts as trustee for the Yakima Nation’s federal reserved water rights, rights impliedly reserved in the agreement between an Indian nation and the United States government creating an Indian reservation. Also called Winters rights after Winters v. United States, 207 U.S. 564 (1908), the case that first recognized such rights. Winters rights presume that when a reservation was established by treaty, sufficient water was reserved to meet the present and future needs of the reservation. These rights are based in federal common-law rather than the state water code.

[13] The Yakima Nation joined the adjudication in its own right. The Nation was formed in 1855 when 14 confederated tribes and bands in the Yakima Valley signed a treaty with the U.S., establishing the Yakima Indian Reservation.

[14] Ahtanum Irrigation District uses Ahtanum Creek to deliver water to users on the north side of the creek.

[15] John Cox Ditch Company is a private corporation formed in the late-1880s. It serves water diverted from Ahtanum Creek to users on the north side of the creek for irrigation, stock-watering, and domestic uses.

[16] The Washington Supreme Court affirmed the Achepohl Decree in State v. Achepohl, 139 Wash. 84, 101, 245 P. 758 (1926).

[17] 236 F.2d 321 (9th Cir. 1956).

[18] 330 F.2d 897 (9th Cir. 1964).

[19] Arizona v. California, 373 U.S. 546, 600, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963)(Arizona I), overruled on other grounds by California v. United States, 438 U.S. 645, 98 S. Ct. 2985, 57 L. Ed. 2d 1018 (1978).

[20] See Arizona I, 373 U.S. at 600.

[21] Slip Opinion at 17.

[22] This article discusses some but not all of the issues addressed in the Acquavella V decision.

[23] Slip Opinion at 18.

[24] Id. at 19-20.

[25] Id. at 27.

[26] Id. at 35.

[27] Id. at 37.

[28] RCW 90.14.140(2)(c). Also called the “determined future development” exception to relinquishment.

[29] RCW 90.14.160, .170, .180.

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