UNITED STATES OF AMERICA and COEUR D'ALENE TRIBE, Claimants-Respondents on Appeal,
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
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
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,
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.
from the District Court of the Fifth Judicial District of the
State of Idaho, Twin Falls County. Eric J. Wildman, District
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.
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.
Roshold & Simpson LLP, Boise, for Hecla Mining. Albert P.
Parsons Behle & Latimer, Boise, for North Idaho Water
Rights Alliance, et al., Norman M. Semanko argued.
four appeals arise from a consolidated subcase that is a part
of the broader Coeur d' Alene-Spokane River Basin
Adjudication (CSRBA). The United States Department of the
Interior (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). 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
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
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) (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.
FACTUAL AND PROCEDURAL BACKGROUND
History of the Tribe and the Reservation.
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
. . . 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
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
"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
Government, in return, promised to compensate the Tribe, and
"[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."
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
Idaho II, 533 U.S. at 265-71 (citations and
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.
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.
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.
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.
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
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,
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.
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
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).
Claims, docket numbers, and alignment of parties on
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
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
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.
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.
STANDARD OF REVIEW
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).
The law regarding federal reserved water rights.
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).
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.
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.
The Reservation was created by the Executive Order of
November 8, 1873.
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.").
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
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)).
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.
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
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.
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.
Issue preclusion does not bar issues regarding the
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
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
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
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)
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.
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.
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.
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.
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.
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
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.
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.
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. 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.
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.
State claims that the "change in condition"
identified in Winters 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.
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.
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.)
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.
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.
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 
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
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
The later agreements do not clearly abrogate the
Tribe's water rights or related tribal purposes.
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.
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).
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.
the United States Supreme Court has treated agreements and
treaties with Indians similarly for ...