United States v. Adair (Adair III)

Scott Bergstrom

The federal district court in Oregon recently issued the third installment in this on-going controversy involving the water rights of the Klamath Tribes (Tribes), an important case addressing the existence and scope of federal Indian reserved water rights for non-agricultural purposes. In the late 1970s and early 1980s, federal courts recognized reserved water rights for the hunting, fishing, and gathering rights reserved in the Tribes' 1864 Treaty with the United States. See United States v. Adair, 478 F. Supp. 336 (D. Or. 1979) (Adair I), aff'd, 723 F.2d 1394 (9th Cir. 1984) (Adair II). Although Congress terminated federal recognition of the Tribes in the 1950s (subsequently restored in 1986) and divested them of their remaining reservation lands, the Tribes' rights in the former reservation area's resources recognized by the 1864 Treaty remained intact. See 25 U.S.C. ' 564 et seq.; see, e.g., Kimball v. Callahan, 590 F.2d 768 (9th Cir.), cert. denied, 444 U.S. 826 (1979) (Kimball II). Accordingly, the Adair I and II courts held that the Tribes continued to enjoy water rights sufficient to support their treaty-reserved rights, with a "time immemorial" priority date. See 478 F. Supp. at 350; 723 F.2d at 1414-15.

Although the Adair decisions also generally defined how to quantify the Tribes' instream rights, the federal courts deferred the actual quantification of those rights to the state of Oregon's pending water adjudication process. The present controversy arose as part of that process. The involved state agencies and upper basin irrigators challenged the non-consumptive claims filed by the United States and the Tribes in the adjudication, interpreting language from the prior Adair rulings as precluding water rights for gathering (plants) purposes and as limiting the Tribes' non-consumptive rights to the amount of water available instream as of the date of the prior Adair decisions (either 1979 or 1984). In 2001, the United States requested the federal district court to exercise its retained jurisdiction in the Adair proceeding to resolve two issues: "(1) whether the Klamath Tribes have a water right to support reserved gathering rights; and (2) whether and to what extent the 'moderate living' standard applies in quantifying the Tribes' water rights." 187 F.Supp. 2d at 1275.

Ruling for the federal district court, Judge Owen Panner first confirmed that water rights exist to support the Tribes' gathering rights, concluding that the Ninth Circuit's short-hand reference to water rights to support "hunting and fishing" purposes could not eliminate the Tribes' water rights for gathering purposes. See id. at 1275. The court then turned to clarifying the appropriate quantification standard for the Tribes' non-consumptive rights as established in the prior Adair rulings:

In order to provide the Tribe an opportunity to continue hunting and fishing on the reservation lands, it is axiomatic that there be sufficient water to support productive habitat so there may be game to hunt, fish to fish, as well as edible plants to gather. . . . Quantifying the reserved water right so that productive habitat can be supported is the only meaningful way to measure the water requirements to meet the goal of fulfilling the purpose of the reservation.

Id. at 1276.

With respect to the assertion that the "moderate living" standard in Adair II (adopted from the U.S. Supreme Court's decision in Fishing Vessel) established a limitation on the water right, the court concluded:

Reducing the water level below a level which would support productive habitat would have the result of abrogating the reserved rights. Because only Congress can abrogate treaty rights, and it has not done so here, the moderate living standard cannot be applied to have the effect of reducing water levels below a level that would support productive habitat.

Id. at 1277. Thus, the court held that the burden fell on those opposing the Tribes' rights to provide persuasive evidence that the "full resource amount" was not necessary to accomplish the reservation purposes. See id. at 1278.

Finally, the court rejected assertions that language from Adair II B indicating that the Tribes' water rights were to support their hunting and fishing rights "as currently exercised" B was meant to transform the Tribes' priority from "time immemorial" to one contemporaneous with the earlier Adair decisions. The court found that the assertions could not be reconciled with the 1864 Treaty, the prior Adair decisions, or the precedents relied upon in those decisions. See id. at 1278-79.

The state and private contestants have appealed the decision to the Ninth Circuit, and briefs are due by the end of the year.

Scott Bergstrom is an attorney-advisor, United States Department of the Interior, Office of the Solicitor. The views expressed in this article do not necessarily represent those of the Office of the Solicitor, the Department of the Interior, or the United States.