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In re CSRBA Case No.49576 Subcase No. 91-7755

Supreme Court of Idaho, Boise

September 5, 2019

UNITED STATES OF AMERICA and COEUR D'ALENE TRIBE, Claimants-Respondents on Appeal,
v.
STATE OF IDAHO, Objector-Appellant on Appeal, and HECLA MINING, CITY OF COEUR D'ALENE, HAGADONE HOSPITALITY CO., HARMON PROPERTY OWNERS ASSN., NORTH KOOTENAI WATER & SEWER, PINEHURST WATER DISTRICT, POTLATCH FOREST HOLDINGS, INC., POTLATCH LAND & LUMBER, LLC, POTLATCH TRS IDAHO, LLC, BENEWAH COUNTY BOARD OF COMMISSIONERS, BUELL BROS, INC., JACK A. BUELL, ELEANOR L. BUELL, CITY OF HARRISON, CITY OF ST. MARIES, WHITEMAN LUMBER CO., INC., NORTH IDAHO WATER RIGHTS GROUP, RATLIFF FAMILY LLC #1, JOHN T. MCFADDIN, RONALD D. HEYN, and WILLIAM M. GREEN, Objectors, and AVISTA CORPORATION, Respondent. UNITED STATES OF AMERICA, Claimant-Appellant on Appeal
v.
STATE OF IDAHO, HECLA MINING, NORTH IDAHO WATER RIGHTS ALLIANCE, NORTH WEST PROPERTY OWNERS ALLIANCE, COEUR D'ALENE LAKESHORE PROPERTY OWNERS ASSOCIATION, RATHDRUM POWER, LLC, HAGADONE HOSPITALITY CO., Objectors-Respondents on Appeal and CITY OF COEUR D'ALENE, HARMON PROPERTY OWNERS ASSN., NORTH KOOTENAI WATER & SEWER, PINEHURST WATER DISTRICT, POTLATCH FOREST HOLDINGS, INC., POTLATCH LAND & LUMBER, LLC, POTLATCH TRS IDAHO, LLC, BENEWAH COUNTY BOARD OF COMMISSIONERS, BUELL BROS, INC., JACK A. BUELL, ELEANOR L. BUELL, CITY OF HARRISON, CITY OF ST. MARIES, WHITEMAN LUMBER CO., INC., COEUR D'ALENE TRIBE, RATLIFF FAMILY LLC #1, JOHN T. MCFADDIN, RONALD D. HEYN, and WILLIAM M. GREEN, Objectors and AVISTA CORPORATION, Respondent. COEUR D'ALENE TRIBE, Claimant-Appellant on Appeal
v.
STATE OF IDAHO, HECLA MINING, NORTH IDAHO WATER RIGHTS ALLIANCE, NORTH WEST PROPERTY OWNERS ALLIANCE, COEUR D'ALENE LAKESHORE PROPERTY OWNERS ASSOCIATION, RATHDRUM POWER, LLC, HAGADONE HOSPITALITY CO., Objectors-Respondents, and CITY OF COEUR D'ALENE, HARMON PROPERTY OWNERS ASSN., NORTH KOOTENAI WATER & SEWER, PINEHURST WATER DISTRICT, POTLATCH FOREST HOLDINGS, INC., POTLATCH LAND & LUMBER, LLC, POTLATCH TRS IDAHO, LLC, BENEWAH COUNTY BOARD OF COMMISSIONERS, BUELL BROS, INC., JACK A. BUELL, ELEANOR L. BUELL, CITY OF HARRISON, CITY OF ST. MARIES, WHITEMAN LUMBER CO., INC., UNITED STATES OF AMERICA, RATLIFF FAMILY LLC #1, JOHN T. MCFADDIN, RONALD D. HEYN, and WILLIAM M. GREEN, Objectors. And AVISTA CORPORATION, Respondent. UNITED STATES OF AMERICA, and COEUR D'ALENE TRIBE, Claimants-Respondents,
v.
NORTH IDAHO WATER RIGHTS ALLIANCE, NORTH WEST PROPERTY OWNERS ALLIANCE, COEUR D'ALENE LAKESHORE PROPERTY OWNERS ASSOCIATION, RATHDRUM POWER, LLC, HAGADONE HOSPITALITY CO., Objectors-Appellants.

          Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Twin Falls County. Eric J. Wildman, District Judge.

         The judgment of the district court is affirmed in part and reversed in part.

          Lawrence G. Wasden, Idaho Attorney General, Boise, for the State of Idaho. Steven W. Strack argued.

          United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. and Boise, for the United States of America. Erica B. Kranz argued.

          Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, Albuquerque, NM, and Office of Legal Counsel Coeur d'Alene Tribe, Plummer, for the Coeur d'Alene Tribe. Vanessa L. Ray-Hodge argued.

          Barker Roshold & Simpson LLP, Boise, for Hecla Mining. Albert P. Barker argued.

          Parsons Behle & Latimer, Boise, for North Idaho Water Rights Alliance, et al., Norman M. Semanko argued.

          STEGNER, JUSTICE.

         These four appeals arise from a consolidated subcase that is a part of the broader Coeur d' Alene-Spokane River Basin Adjudication (CSRBA).[1] The United States Department of the Interior[2] (the United States), as trustee for the Coeur d' Alene Tribe (the Tribe), filed 353 claims in Idaho state court seeking judicial recognition of federal reserved water rights to fulfill the purposes of the Coeur d' Alene Tribe's Reservation (the Reservation).[3] The Tribe joined the litigation. The State of Idaho (the State) and others objected to the claims asserted by the United States and the Tribe. The district court bifurcated the proceedings to decide only the entitlement to water at this stage, with the quantification stage to follow. After cross-motions for summary judgment, the district court allowed certain claims to proceed and disallowed others.

         The district court specifically allowed reserved water rights for agriculture, fishing and hunting, and domestic purposes. The district court allowed reserved water rights for instream flows within the Reservation, but disallowed those for instream flows outside the Reservation. The district court disallowed other claims, including a claim on behalf of the Tribe to maintain the level of Lake Coeur d' Alene. The district court then determined priority dates for the various claims it found should proceed to quantification. Generally speaking, the district court held that the Tribe was entitled to a date-of-reservation priority date for the claims for consumptive uses, and a time immemorial priority date for nonconsumptive uses. However, in regard to lands homesteaded on the Reservation by non-Indians that had since been reacquired by the Tribe, the district court ruled the Tribe was entitled to a priority date of a perfected state water right, or if none had been perfected or it had been lost due to nonuse, the Tribe's priority date would be the date-of-reacquisition.

         The district court's holdings are now the subject of appeals by the State of Idaho (Supreme Court Docket No. 45381), the United States (Supreme Court Docket No. 45382), the Tribe (Supreme Court Docket No. 45383), and a group of private parties who will collectively be referred to as the North Idaho Water Rights Group (the NIWRG)[4] (Supreme Court Docket No. 45384). Because all of the appeals arise out of the same decisions of the district court and significantly overlap one another, we will address them together in one opinion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. History of the Tribe and the Reservation.

         In its summary judgment order, the district court adopted the history of the Tribe and the creation of the Reservation as set out by the United States Supreme Court in Idaho v. United States (hereafter Idaho II), 533 U.S. 262 (2001). That history, as articulated by the U.S. Supreme Court, is as follows:

The Coeur d' Alene Tribe once inhabited more than 3.5 million acres in what is now northern Idaho and northeastern Washington, including the area of Lake Coeur d' Alene and the St. Joe River. Tribal members traditionally used the lake and its related waterways for food, fiber, transportation, recreation, and cultural activities. The Tribe depended on submerged lands for everything from water potatoes harvested from the lake to fish weirs and traps anchored in riverbeds and banks.
. . . In 1867, in the face of immigration into the Tribe's aboriginal territory, President Johnson issued an Executive Order setting aside a reservation of comparatively modest size, although the Tribe was apparently unaware of this action until at least 1871, when it petitioned [Tribe's 1872 Petition] the Government to set aside a reservation. The Tribe found the 1867 boundaries unsatisfactory, due in part to their failure to make adequate provision for fishing and other uses of important waterways. When the Tribe petitioned the Commissioner of Indian Affairs a second time, it insisted on a reservation that included key river valleys because "we are not as yet quite up to living on farming" and "for a while yet we need [to] have some hunting and fishing."
Following further negotiations, the Tribe in 1873 agreed to relinquish (for compensation) all claims to its aboriginal lands outside the bounds of a more substantial reservation that negotiators for the United States agreed to "set apart and secure" "for the exclusive use of the Coeur d' Alene Indians, and to protect . . . from settlement or occupancy by other persons." The reservation boundaries described in the agreement covered part of the St. Joe River (then called the St. Joseph), and all of Lake Coeur d' Alene except a sliver cut off by the northern boundary.
Although by its own terms the agreement was not binding without congressional approval, later in 1873 President Grant issued an Executive Order directing that the reservation specified in the agreement be "withdrawn from sale and set apart as a reservation for the Coeur d' Alene Indians." The 1873 Executive Order set the northern boundary of the reservation directly across Lake Coeur d' Alene . . . .
As of 1885, Congress had neither ratified the 1873 agreement nor compensated the Tribe. This inaction prompted the Tribe to petition the Government again [Tribe's 1885 Petition], to "make with us a proper treaty of peace and friendship . . . by which your petitioners may be properly and fully compensated for such portion of their lands not now reserved to them; [and] that their present reserve may be confirmed to them." In response, Congress authorized new negotiations to obtain the Tribe's agreement to cede land outside the borders of the 1873 reservation. In 1887, the Tribe agreed to cede
"all right, title, and claim which they now have, or ever had, to all lands in said Territories [Washington, Idaho, and Montana] and elsewhere, except the portion of land within the boundaries of their present reservation in the Territory of Idaho, known as the Coeur d' Alene Reservation."

         The Government, in return, promised to compensate the Tribe, and agreed that

"[i]n consideration of the foregoing cession and agreements . . . the Coeur d' Alene Reservation shall be held forever as Indian land and as homes for the Coeur d' Alene Indians . . . and no part of said reservation shall ever be sold, occupied, open to white settlement, or otherwise disposed of without the consent of the Indians residing on said reservation."

         As before, the agreement was not binding on either party until ratified by Congress.

In January 1888, not having as yet ratified any agreement with the Tribe, the Senate expressed uncertainty about the extent of the Tribe's reservation and adopted a resolution directing the Secretary of the Interior to "inform the Senate as to the extent of the present area and boundaries of the Coeur d' Alene Indian Reservation in the Territory of Idaho," and specifically, "whether such area includes any portion, and if so, about how much of the navigable waters of Lake Coeur d' Alene, and of Coeur d' Alene and St. Joseph Rivers." The Secretary responded in February 1888 with a report of the Commissioner of Indian Affairs, stating that "the reservation appears to embrace all the navigable waters of Lake Coeur d' Alene, except a very small fragment cut off by the north boundary of the reservation," and that "[t]he St. Joseph River also flows through the reservation." . . .
. . . .
Congress was not prepared to ratify the 1887 agreement, however, owing to a growing desire to obtain for the public not only any interest of the Tribe in land outside the 1873 reservation, but certain portions of the reservation itself. . . .
But Congress did not simply alter the 1873 boundaries unilaterally. Instead, the Tribe was understood to be entitled beneficially to the reservation as then defined, and the 1889 Indian Appropriations Act included a provision directing the Secretary of the Interior "to negotiate with the Coeur d' Alene tribe of Indians," and, specifically, to negotiate "for the purchase and release by said tribe of such portions of its reservation not agricultural and valuable chiefly for minerals and timber as such tribe shall consent to sell." Later that year, the Tribe and Government negotiators reached a new agreement under which the Tribe would cede the northern portion of the reservation, including approximately two-thirds of Lake Coeur d' Alene, in exchange for $500, 000. The new boundary line, like the old one, ran across the lake, and General Simpson, a negotiator for the United States, reassured the Tribe that "you still have the St. Joseph River and the lower part of the lake." And, again, the agreement was not to be binding on either party until both it and the 1887 agreement were ratified by Congress.
. . . .
. . . On March 3, 1891, Congress "accepted, ratified, and confirmed" both the 1887 and 1889 agreements with the Tribe.

Idaho II, 533 U.S. at 265-71 (citations and footnotes omitted).

         B. Procedural history.

         The State, the United States, the Tribe, and the NIWRG have all filed separate appeals, challenging a series of orders entered by the district court in the overarching consolidated CSRBA Subcase No. 91-7755. The procedural history pertaining to all four appeals is outlined below.

         On March 26, 2014, the United States filed 353 claims asserting an entitlement to federal reserved water rights on behalf of the Tribe in the CSRBA. Those claims were divided into six categories: (1) 17 domestic, commercial, municipal, and industrial claims; (2) 72 instream flow claims (involving streams both within and outside the Reservation) for maintenance of fish habitat; (3) 44 irrigated agriculture claims; (4) 1 lake level maintenance claim; (5) 24 claims for springs and seeps; and (6) 195 wetlands claims. All of these claims were pursued under federal law as implied federal reserved water rights. The district court consolidated the claims into the subcase from which the four instant appeals arise. The district court divided litigation of the claims into an entitlement phase and a quantification phase. These appeals involve only the entitlement phase. The quantification phase will proceed once the entitlement phase of the case has been resolved. Multiple summary judgment motions were filed regarding the Tribe's purported entitlement to its various water rights claims.

         On May 3, 2017, the district court issued a summary judgment order. Initially, the district court found that when the Reservation was created, Congress impliedly reserved water rights for the Tribe's use. In order to determine the claims to which the Tribe was entitled, the district court first determined reserved water rights could be implicitly reserved for only the primary purposes of the Reservation. The district court found that agriculture, fishing and hunting, and domestic purposes were the primary purposes of the Reservation, and therefore limited the Tribe's claims to those purposes.

         The district court further found in its summary judgment order that the Tribe was not entitled to the following water rights claims: claims based on a homeland purpose theory; claims based on secondary purposes (including industrial, commercial, aesthetics, recreation, and others); claims outside of the boundaries of the Reservation; and the claim for lake level maintenance of Lake Coeur d' Alene. The district court parsed certain water rights claims, disallowing some portions of the claims and allowing others. As a result, the district court entered a second order later in the day on May 3, 2017, disallowing eighty-four claims (order disallowing claims) concluding that those were based on what it considered improper legal grounds.

         The summary judgment order also set out the priority dates for different types of water rights claims. The district court found that the Reservation had been created on November 8, 1873; consequently, claims for agricultural use and domestic use (including claims for groundwater) were given that priority date. Claims based on hunting and fishing were given a priority date of time immemorial. Finally, the district court held that the priority date for claims associated with land homesteaded on the Reservation by non-Indians, which had been subsequently reacquired by the Tribe, was the earlier date of either a perfected state water right "or if no water right was so perfected, then the date of reacquisition."

         Shortly thereafter, the State filed a motion to reconsider the summary judgment order and the United States and the Tribe filed a joint motion to modify the order disallowing claims. The district court issued orders ruling on both the motion to reconsider and the motion to modify on July 26, 2017 (order granting reconsideration and order granting modification, respectively).

         The order granting reconsideration clarified priority dates for springs and wetlands on homesteaded lands reacquired by the Tribe, as well as the priority date for claims associated with Reservation lands sold to (but not homesteaded by) non-Indians which were then reacquired by the Tribe. The district court determined the priority date for reacquired springs and wetlands was also either the date perfected by the homesteader under state law, or, if the homesteader had never perfected a claim or had allowed it to lapse, the date of reacquisition. The district court further concluded that claims associated with lands originally allotted to Indians, which were then sold to non-Indians and subsequently reacquired by the Tribe, would carry a priority date of November 8, 1873, the date of the Reservation. However, in the context of these reacquired allotted lands, the district court clarified that any non-diversionary springs or wetlands claims, as well as consumptive claims lost to nonuse, carried a date-of-reacquisition priority date.

         The order granting modification did not change the list of acceptable primary purposes of the Reservation. The district court did, however, conclude that instream flows for fish habitat within the boundary of the Reservation had been erroneously disallowed in its previous order. As a result of this error, the district court issued an amended order on July 26, 2017, reinstating fifteen claims that had been disallowed. (The district court did not distinguish between claims on lands within the Reservation but not owned by the Tribe, and claims on tribal-owned lands within the Reservation.)

         In total, the district court signed six separate orders on two separate days. On May 3, 2017, the district court entered the following orders: (1) order granting and denying summary judgment; (2) order disallowing certain claimed purposes of the Reservation; and (3) order disallowing claims (which was later determined to be partially erroneous). On July 26, 2017, the district court entered the following orders: (4) order granting reconsideration (which clarified priority dates established in the summary judgment order); (5) order granting modification (which upheld the denial of a plant-gathering purpose and explained what claims had been erroneously disallowed); and (6) an amended order disallowing claims (which removed fifteen erroneously disallowed claims from the previous order).

         C. Claims, docket numbers, and alignment of parties on appeal.

         The State appeals, contesting the claims to water rights granted by the district court to the United States and the Tribe. The United States and the Tribe are the respondents in the State's appeal. The State's appeal was given Docket No. 45381.

         As trustee for the Tribe, the United States appeals the claims to water rights it made on behalf of the Tribe that were denied at summary judgment. The State, the NIWRG, and Hecla Mining are respondents in the United States' appeal (these respondents will be collectively referred to as the Objectors). The United States' appeal was given Docket No. 45382.

         The Tribe also appeals, arguing the district court erred in rejecting the Tribe's claims. The arguments put forth in the appeals of the Tribe and the United States are closely aligned (if not identical). The issues argued in briefing by the Tribe echo those argued by the United States, and seek to overturn the district court's rulings that were unfavorable to the Tribe. The Objectors are also the respondents in the Tribe's appeal and their briefs are identical to the ones they filed in the United States' appeal. The Tribe's appeal was given Docket No. 45383.

         The NIWRG appeals, arguing the district court erred by allowing certain water rights claims of the United States and the Tribe. The United States and the Tribe are the respondents in the NIWRG's appeal. The NIWRG's appeal was given Docket No. 45384.

         II. STANDARD OF REVIEW

         "In an appeal from an order granting summary judgment, the Court applies the same standard of review as that used by the district court when originally ruling on the motion." Potlatch Corp. v. United States, 134 Idaho 916, 919, 12 P.3d 1260, 1263 (2000) (citing Mitchell v. Bingham Mem'l Hosp., 130 Idaho 420, 422, 942 P.2d 544, 546 (1997)). "The court must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." I.R.C.P. 56(a). "The determination is to be based on the pleadings, depositions, and admissions on file, together with the affidavits, if any." Potlatch Corp., 134 Idaho at 919, 12 P.3d at 1263 (citing Mitchell, 130 Idaho at 422, 942 P.2d at 546). When the district court is the trier of fact, it is entitled to arrive at the most probable inferences based upon the evidence properly before it. P.O. Ventures, Inc. v. Loucks Family Irrevocable Tr., 144 Idaho 233, 237, 159 P.3d 870, 874 (2007) (citation omitted). "This Court exercises free review over the entire record that was before the district judge to determine whether either side was entitled to judgment as a matter of law and reviews the inferences drawn by the district judge to determine whether the record reasonably supports those inferences." Id. (citation omitted).

         III. ANALYSIS

         A. The law regarding federal reserved water rights.

         "The existence or absence of a reserved water right is a matter of federal law." United States v. Idaho, 135 Idaho 655, 660, 23 P.3d 117, 122 (2001). The federal government "does not defer to state water law with respect to reserved rights." Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist. (hereafter Agua Caliente), 849 F.3d 1262, 1269 (9th Cir. 2017).

         Federal reserved water rights arise from the United States Supreme Court's decision in Winters v. United States, 207 U.S. 564 (1908). In Winters, the Supreme Court held that when Congress created an Indian reservation, it also, by implication, reserved water necessary for the Tribe to achieve the purposes of the reservation. Id. at 576. "In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve unappropriated and thus available water." Cappaert v. United States, 426 U.S. 128, 139 (1976) (citing Arizona v. California (hereafter Arizona I), 373 U.S. 546, 598 (1963), judgment entered sub nom. Arizona v. California (hereafter Arizona II), 376 U.S. 340 (1964), amended sub nom. Arizona v. California (hereafter Arizona III), 383 U.S. 268 (1966), and amended sub nom. Arizona v. California (hereafter Arizona V), 466 U.S. 144 (1984)); Winters, 207 U.S. at 576). Intent to reserve water is inferred if the waters are necessary to accomplish the reservation's purposes. Cappaert, 426 U.S. at 139.

         The Supreme Court held that "when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." Id. at 138. Reservation purposes are derived from "the document[s] and circumstances surrounding [a reservation's] creation, and the history of the Indians for whom it was created." Agua Caliente, 849 F.3d at 1270 (quoting Colville Confederated Tribes v. Walton (hereafter Walton I), 647 F.2d 42, 47 (9th Cir. 1981)); see also Winters, 207 U.S. at 575 ("The case . . . turns on the agreement . . . resulting in the creation of [the] . . . Reservation."). Once established, "the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators." Cappaert, 426 U.S. at 138.

         B. The Reservation was created by the Executive Order of November 8, 1873.

         As a preliminary matter, it is important to determine what governmental act or acts created the Reservation. Implied federal reserved water rights are established at the time surrounding the creation of the reservation. Arizona I, 373 U.S. at 600 ("We follow [Winters] now and agree that the United States did reserve the water rights for the Indians effective as of the time the Indian Reservations were created.").

         Likewise, a reservation's purposes that require water are also determined at the time surrounding the reservation's creation. See Cappaert, 426 U.S. at 138 ("[W]hen the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation[, and] . . . acquires a reserved right . . . which vests on the date of the reservation . . . ."); Walton I, 647 F.2d at 47 ("To identify the purposes for which the Colville Reservation was created, we consider the document and circumstances surrounding its creation, and the history of the Indians for whom it was created."). Accordingly, establishing when and how the Reservation was created is integral to determining both the potential purposes of the Tribe and priority dates of certain water rights claims-the central contested issues in these appeals.

         Federal reservations and accompanying reserved water rights may be created by executive order. Arizona I, 373 U.S. at 598; see also United States v. New Mexico, 438 U.S. 696, 699-700 (1978) (President has power to reserve unappropriated water). Indian reservations which are set aside by the executive branch remain valid even absent congressional approval. Sioux Tribe of Indians v. United States, 316 U.S. 317, 325-26 (1942). "[S]o far as the power to withdraw public lands from sale is concerned, such a delegation could be spelled out from long continued Congressional acquiescence in the executive practice." Id. at 326 (discussing United States v. Midwest Oil Co., 236 U.S. 459, 469-71 (1915)).

         The United States Supreme Court and Ninth Circuit have held that the Coeur d' Alene Reservation was established by the 1873 Executive Order. E.g., Idaho II, 533 U.S. at 277, 279; Idaho v. Andrus, 720 F.2d 1461, 1463 (9th Cir. 1983). The district court also found the Reservation was created by President Grant's Executive Order of November 8, 1873. We conclude the district court's finding in this regard was correct.

         The State argues that the 1873 Agreement was null and void if not approved by Congress. However, the 1873 Executive Order, separate from the 1873 Agreement, is sufficient to create the Reservation. See, e.g., Sioux Tribe of Indians, 316 U.S. at 325-26. Accordingly, the Reservation and any implied water rights were created in 1873 by the executive order. See Arizona I, 373 U.S. at 600. It follows that the Reservation's purposes requiring water must also be established as they were at that time. Therefore, the 1873 documents (both the executive order and the agreement) and surrounding documents and circumstances (i.e., the Tribe's 1872 Petition) will be used to determine the purposes of the Reservation. See Walton I, 647 F.2d at 47. Additionally, it is appropriate to examine the later 1887 and 1889 Tribal Agreements (the later agreements), which were approved by Congress in the 1891 Act, to aid in understanding the Reservation's purposes.

         C. The 1887 and 1889 Agreements and 1891 Act of Congress do not limit the Reservation's purposes and may be used to derive the Reservation's purposes.

         The State argues that the later agreements and accompanying 1891 Act of Congress created the Reservation and define and substantially limit the Reservation's purposes. Accordingly, the State contends that the 1873 Agreement and Executive Order should not be used to determine the date of the Reservation's creation or its purposes. The United States and the Tribe counter that the question of which governmental act establishes the purposes of the Reservation has already been decided by the United States Supreme Court's decision in Idaho II. 533 U.S. at 262. However, as will be shown, Idaho II is not conclusive as to the Reservation's purposes.

         1. Issue preclusion does not bar issues regarding the Reservation's purposes.

As noted, the State claims that the later agreements and accompanying 1891 Act of Congress created the Reservation and limit its purposes. The Tribe and the United States respond that the issue of whether the Reservation's purposes were curtailed by later congressional action is barred by issue preclusion, as Idaho II already established the Reservation's purposes. The State counters that the issue of whether the original purposes of hunting and fishing were ratified (or abrogated) by the 1891 Act was not resolved in Idaho II, and thus issue preclusion does not apply.
Whether claim preclusion or issue preclusion bars relitigation between the same parties of a prior litigation is a question of law upon which this Court exercises free review. Lohman v. Flynn, 139 Idaho 312, 319, 78 P.3d 379, 386 (2003). Res judicata is an affirmative defense and the party asserting it must prove all of the essential elements by a preponderance of the evidence. Foster v. City of St. Anthony, 122 Idaho 883, 890, 841 P.2d 413, 420 (1992).

Stilwyn, Inc. v. Rokan Corp., 158 Idaho 833, 838-39, 353 P.3d 1067, 1072-73 (2015) (quoting Ticor Title Co. v. Stanion, 144 Idaho 119');">144 Idaho 119, 122, 157 P.3d 613, 616 (2007)). Issue preclusion based on a federal judgment is governed by federal common law. Id. at 839, 353 P.3d at 1073 (citing Taylor v. Sturgell, 553 U.S. 880, 891 (2008)).

         Under issue preclusion, "once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation." United States v. Mendoza, 464 U.S. 154, 158 (1984) (citing Montana v. United States, 440 U.S. 147, 153 (1979)).

The party asserting issue preclusion must demonstrate: "(1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits." Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012).

Howard v. City of Coos Bay, 871 F.3d 1032, 1041 (9th Cir. 2017).

         In Idaho II, the question presented involved an inquiry to determine whether submerged lands, those lying below Lake Coeur d' Alene on the Reservation, were subject to a federal reservation or instead reverted to Idaho upon its admission to the Union. Idaho II, 533 U.S. at 273. The two-step inquiry in that case asked "whether Congress intended to include land under navigable waters within the federal reservation and, if so, whether Congress intended to defeat the future State's title to the submerged lands." Id. (citations omitted). The Court further set out two sub-elements to the second inquiry: "whether Congress was on notice that the Executive reservation included submerged lands, and whether the purpose of the reservation would have been compromised if the submerged lands had passed to the State." Id. at 273-74 (italics added) (citations omitted).

         At first glance, it appears the test in Idaho II necessarily encompassed a determination of the purposes of the Reservation. However, upon closer examination, Idaho II focused on congressional intent regarding the submerged lands and did not explicitly analyze the purposes of the Reservation. See id. at 273-281. Thus, the issue in Idaho II does not involve the same question as the appeals here. Consequently, the first element (requiring identical issues be involved in both cases) of issue preclusion has not been met. In addition, element two of issue preclusion has not been satisfied for the same reason: the purposes of the Reservation were not "actually litigated and decided in" Idaho II. Howard, 871 F.3d at 1041. Likewise, because the purposes of the Reservation issue was not actually addressed in Idaho II, it cannot be said that determining the purposes of the Reservation "was necessary to decide the merits" of Idaho II. Id. Thus, element four of issue preclusion is also not satisfied, and Idaho II does not appear to preclude this Court's determination of this issue.

         Because of the Supreme Court's limited holding in Idaho II, elements one, two, and four of issue preclusion have not been established and issue preclusion does not apply to these appeals. Accordingly, the arguments brought by the State that the later agreements superseded the original purposes of the Reservation need to be analyzed.

         2. The later agreements do not constitute a "change in condition" in the Reservation, and therefore, do not prevent the 1873 Executive Order from establishing the purposes of the Reservation.

         The State contends that the 1873 Executive Order should not be the basis for determining the purposes of the Reservation because the later Agreements resulted in a "change in the conditions of the Reservation." The State also argues that the later agreements (incorporated by Congress in the 1891 Act) identify agriculture as the sole purpose of the Reservation, and thus superseded any purposes established at the time of the 1873 Reservation. The State also maintains that these later agreements are the appropriate formative documents from which the Reservation's purposes should be derived. The Tribe and the United States argue that no change in condition occurred; rather, they contend the later agreements, as well as the 1891 Act, ratified the original 1873 Reservation and its purposes.

         More specifically, the State argues that because the later agreements only address the Tribe's transition to an agricultural-based economy (thus evidencing a change in conditions), that every other purpose has been lost. The State maintains that Arizona I supports this argument because the Court in that case contemplated the original purpose of hunting and then neglected to reserve any water rights for that purpose. The State quotes the following language for this assertion: "water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised." Arizona I, 373 U.S. at 599. While it does not appear that any water was set aside for hunting in Arizona I, the quoted language does not pertain to a discussion of the purposes of the tribe's reservation. Neither the opinion in Arizona I nor the record in that case suggests that any water rights claims for hunting were asserted; consequently, the Court was not presented with the question of whether water should be reserved for purposes other than agriculture. See id. at 598-600.

         Instead, when taken in context, the language from Arizona I quoted by the State was included to refute the argument that Congress would have created a reservation without any water rights. See Arizona I, 373 U.S. at 598-99. The Court recognized that Congress undoubtedly intended the tribe to have the water rights at issue because

[i]t is impossible to believe that when Congress created the . . . Reservation . . . [it was] unaware that most of the lands were of the desert kind--hot, scorching sands-and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised.

Id. This language quoted by the State was used to show that Congress knew the reservation to be arid, and thus intended to reserve "water necessary to sustain life[, ]" not that it somehow contemplated hunting and fishing as reservation purposes and then decided to discontinue water rights for those purposes. Id. at 589.

         The State also contends that Winters supports its argument that the later agreements should define the Reservation's purposes because the Court "looked solely to the purposes of [a] new agreement," not to the purposes of the "earlier reservation." This argument is not supported by Winters.

         The Court in Winters found that the applicable reservation was created by the May 1888 Act of Congress from the earlier, shared reservation. 207 U.S. at 575-76.[5] This shared reservation was somewhat limited in nature as the tribes merely had "the right to occupy and use" the land. Id. at 576; see also Act of Apr. 15, 1874, ch. 96, 18 Stat. 28. Moreover, it was shared by multiple tribes. 18 Stat. at 28. The shared reservation was eventually divided by the May 1, 1888, Act of Congress, which gave each tribe its own specific reservation. See British-Am. Oil Producing Co. v. Bd. of Equalization of Mont., 299 U.S. 159, 162 (1936). Accordingly, Winters recognized that the applicable reservation was created in 1888 and analyzed it as such. Winters, 207 U.S. at 576. Thus, Winters is consistent with the standard set out above and stands for the proposition that implied water rights and their related purposes are determined when the reservation was created. Id. at 575-76.

         The State further relies on Winters and British-American for the argument that later congressional action shrinking a reservation may act as a "change in condition" sufficient to supersede a previous executive order creating an Indian reservation. The State cites British-American for the proposition that executive orders may be "designed to be temporary," and, thus, subsequent congressional action may supersede them, leaving the orders without any force. 299 U.S. at 163. However, the State misconstrues the holdings in both Winters and British-American.

         The State claims that the "change in condition" identified in Winters[6] was the subsequent congressional action "carving out a new smaller reservation . . . ." This is inaccurate. The "change of conditions" discussed in Winters concerns the tribe's need to alter the conditions of the land in order to make it farmable. Winters, 207 U.S. at 576. In context, the Court wrote:

It was the policy of the government, it was the desire of the Indians, to change those habits and to become a pastoral and civilized people. If they should become such, the original tract was too extensive; but a smaller tract would be inadequate without a change of conditions. The lands were arid, and, without irrigation, were practically valueless. And yet, it is contended, the means of irrigation were deliberately given up by the Indians[.]

Id. (italics added). The change of conditions, to which the Court refers, was an alteration of the arid condition of the land, i.e., through irrigation, which was necessary to make the reservation livable. See id. In no way is the Court referring to a change from the prior shared reservation to a new, re-established reservation. Thus, any attempt by the State to propose some sort of test to re-examine purposes based on a "change in condition" is unpersuasive.

         Additionally, the State's reliance on British-American is unavailing. That case stated, "The Executive Orders before mentioned, evidently designed to be temporary, have been superseded by congressional action and no longer are of any force." British-Am., 299 U.S. at 163. The Court was analyzing whether the reservation was created by executive order or statute because the relevant statute regarding taxes, not water rights, was dependent upon that distinction. Id. at 161-62. The Court did not inquire into when or how the reservation was created, let alone the purposes of the reservation. See id.

         The Court did, however, outline the history of how the reservation was created. In doing so, the Court recognized that executive orders in 1873, 1874, 1875, and 1880, as well as congressional action in 1874, set out a larger "reservation" for the use of multiple tribes. Id. at 162. The Court in British-American then recognized that the individual reservations, specific to three of the Indian tribes, were created by a congressional act on May 1, 1888, out of the larger reservation. British-Am., 299 U.S. at 162; Act of May 1, 1888, ch. 213, 25 Stat. 113. (The Court in Winters recognized the same. Winters, 207 U.S. at 567-68.)

         In British-American, the Court found the executive order to be temporary but did not expound on how it arrived at that conclusion other than to list the subsequent, superseding 1888 and 1896 Acts of Congress. British-Am., 299 U.S. at 162-63. The State has not provided an analysis regarding how the prior executive orders in British-American might be similar to the 1873 Executive Order in this case.

         Instead, the language of the 1873 Executive Order in this case is similar to that found in the superseding congressional acts in British-American. Here, the 1873 Executive Order stated that the land described was "withdrawn from sale and set apart as a reservation for the" Tribe. Exec. Order of Nov. 8, 1873. Similarly, the superseding 1888 Act creating the individualized reservations referred to in British-American stated that the tribes would cede land "not herein specifically set apart and reserved as separate reservations for them . . . ." 25 Stat. at 114. Thus, the two seem similarly permanent.

         Additionally, the language in the later agreements (and 1891 Act) in this case does not suggest that they superseded the 1873 Executive Order. In the 1891 Act, the Tribe ceded land and agreed to a Reservation reduced in size from that created in 1873; however, its purposes were not reduced. Although the State offers some evidence that the 1873 Executive Order was "seen as a temporary measure to fully protect the [1873] agreement until the necessary legislation could be passed[, ]" the later agreements do not supersede the Executive Order. Rather, the earlier of the two agreements refers to the Reservation as established in the 1873 Executive Order and proceeds in recognition of it. See Act of Mar. 3, 1891, ch. 543, § 19, 26 Stat. 989, 1027. The 1887 Agreement recognized the tribe was already "residing on the Coeur d' Alene Reservation, in the Territory of Idaho." Thus, it cannot be said that the later agreements and 1891 Act were intended to, or did in fact, negate or supersede the 1873 Executive Order. They did result in a substantial decrease in the size of the Reservation but did not affect the Reservation's purposes or the date of its creation.

         Winters, Arizona I, and British-American do not address the narrower issue of deciding how a proposed purpose of a reservation is established-thus they are minimally instructive here. In conclusion, the State has not provided adequate law or reason to disregard the 1873 Executive Order when determining the Reservation's purposes and resultant water rights.

         3. The later agreements do not clearly abrogate the Tribe's water rights or related tribal purposes.

         The Tribe and United States contend that in order for Congress to limit the Tribe's rights it must explicitly do so, and the later agreements and 1891 Act fail to explicitly limit the purposes of the Reservation or rights of the Tribe. In response, the State largely reiterates its arguments outlined above. To the extent the State relies on a primary-secondary distinction, that distinction is inapplicable as will be discussed. For reasons explained below, Congress must clearly and plainly express its intent to abrogate tribal rights and it did not do so in the later agreements.

         The law pertaining to Indian treaties also applies to tribal agreements that are ratified by Congress. "A treaty is viewed as 'a contract between two sovereign nations.' A treaty with an Indian Tribe constitutes a grant of rights from them, not a grant of rights from the United States to the Indians." City of Pocatello v. State, 145 Idaho 497, 506, 180 P.3d 1048, 1057 (2008) (italics in original) (citing and quoting Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (hereafter Fishing Vessel), 443 U.S. 658, 675, 680, modified sub nom. Washington v. United States, 444 U.S. 816 (1979)). Treaties must be ratified by Congress to become law. U.S. Const. art. II, § 2, cl. 2; State v. Coffee, 97 Idaho 905, 911-12, 556 P.2d 1185, 1191-92 (1976) (citing U.S. Const. art. VI, cl. 2).

         The effect of treaties is the same as tribal agreements ratified by Congress. In the later agreements, the Tribe's members signed and consented to relinquishing all right, title, and claim to land outside the Reservation to the United States, thus demonstrating the grant of rights from the Tribe. The agreements were also ratified and set out verbatim in their entirety by Congress. §§ 19-20, 26 Stat. at 1027, 1029.

         Moreover, the United States Supreme Court has treated agreements and treaties with Indians similarly for ...


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