SE Investments, Apsalooke (Crow) Tribe, United States of America (Bureau of Indian Affairs)

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Montana Water Court 'PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800 624-3270 (In-state only) Fax: (406) 522-4131 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION SHOSHONE RIVER - BASIN 431V CLAIMANT: S E Investments CASE 43N-4 43N 185501-00 OBJECTORS: Apsaalooke (Crow) Tribe; United States of America (Bureau of Indian Affairs) ON MOTION OF THE MONTANA WATER COURT ORDER AMENDING AND ADOPTING MASTER'S REPORT BACKGROUND Claiin 43N 18550 1-00 received issue remarks during claims examination by the DNRC and objections from the Crow Tribe and the United States of America, Bureau of Indian Affairs (BIA). In May 20 15, the claimants, the Tribe, and the BIA filed a Stipulation with the Water Court, which resolved the Objectors' concerns about claim 43N 18550 1-00 and the issue remarks associated with the claim. The Water Master recommended that the Stipulation be accepted by the Court with one exception. The parties requested that the type of historical right for claim 43N 185501-00 be changed from "Reserved" to "Walton Right." The Master recommended that the type of right continue to be identified as Reserved pursuant to the Order Rejecting Master's Report, Order Approving Stipulation, and Order Closing Case in Case 430-8, January 15,20 15 ("case 430-8 Order"). Also pursuant to the Order in case 430-8, the Master recommended the addition of the following information remarks: THIS WATER RIGHT IS A WALTON RIGHT. THIS WATER RIGHT IS NOT PART OF THE TRIBAL WATER RIGHT AS DEFINED IN THE CROW COMPACT. The Crow Tribe and the BIA object to the Master's Report to the extent it denied the parties' request to change the type of right from Reserved to Walton. They argue that "the general term, 'Reserved right,', lacks specificity and may cause unwanted confusion." United States' and Crow Tribe's Objection, 2. The Crow Tribe and the BIA request .that .the Court modify the listed type of historical right to indicate its unique Walton right status, or in the alternative, that the information remark identifying the right as a Walton right be moved closer to the abstract's type-classification section. ANALYSIS Although Walton rights are derived from Winters rights, they are not the same. As stated in the case 430-8 Order, The difference between Walton rights and Winters rights, as explained by the Ninth Circuit in Anderson, is that there are two significant restrictions on Walton rights. "The first restriction is that the non-Indian successor's right to water is limited by the number of irrigable acres of former reservation lands that he owns. The second restriction may be simply expressed as: use it or lose it." Case 430-8 Order. P.4 (quoting Unitedstates v. Anderson, 736 F.2d 1358, 1362 (9th Cir. 1984) (internal quotation marks omitted) (citing United States v. Adair, 723 F.2d 1394 (9th Cir. 1983); Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 198l), cert. denied 454 U.S. 1092 (198 1)). The United States Supreme Court recently noted: What may be true of happy families, L. Tolstoy, Anna Karenina 1 (R. Pevear and L. Volokhonsky transls. 2000) ("All happy families are alike"), or of roses, G. Stein, Sacred Emily, in Geography and Plays 178, 187 (1 922) (reprint 1968) ("Rose is a rose is a rose is a rose"), does not hold true in elections of every kind. Williams- Yulee v. Fla. Bar, 135 S. Ct. 1656, 1675 (20 15). Likewise, what may be true of happy families or of roses does not hold true for I Reserved rights. While it is true that a Walton right is a Reserved right, Walton rights and Winjers rights are distinct from each other. Therefore, the type of historic right for claim 43N 185501-00 will continue to be identified as Reserved. However, the Court appreciates the potential for miscommunication or conflict if Walton rights are not distinguished from Winters reserved rights. To prevent confusion, the information remark identifying claim 43N 185501-00 as a Walton right will be moved to the first page of the abstract and located directly under the type of right classification. Accordingly, it is ORDERED that the abstract for claim 43N 185501-00 is amended as described above; ORDERED that the Master's Report is ADOPTED as amended by this Order; and ORDERED that case 43N-4 is CLOSED. DATED this / y day of P/LLY ,201 4 Russ McElyea Chief Water Judge James E. Torske, Attorney at Law 3 14 North .CusterAvenue Hardin, MT 59034 (406) 665- 1902 Nathan A. Espeland, Esq. Espeland Law Office, PLLC PO Box 1470 Columbus, MT 590 19 (406) 322-9877 Yosef M. Negose US Department of Justice-ENRDLIRS PO Box 76 1 1 Ben Franklin Station Washington, DC 20044 (202) 353-8596 yosef.negose@usdoj.gov espelandnathan@gmail.com S:\Share\WC-BASIN FOLDERS\43N\Cases\4\43N-4 OAA 6-23-1 5 sjs.docx June 29, 2015 Page 1 of 2 4 d 185501-00 3 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SHOSHONE RIVER BASIN 43N IMPORTANT NOTICE AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. Water Right Number: 43N 185501-00 Version: RESERVED CLAIM 2 -- POST DECREE Status: ACTIVE Owners: S E INVESTMENTS PO BOX 165 DEAVER, WY 82421 Priority Date: MAY 7, 1868 Type of Historical Right: RESERVED THlS WATER RlGHT IS A WALTON RlGHT THlS WATER RlGHT IS NOT PART OF THE TRIBAL WATER RlGHT AS DEFINED IN THE CROW COMPACT. Purpose (use): IRRIGATION Irrigation Type: FLOOD *Flow Rate: 1.20 CFS THE TOTAL VOLUME OF THIS WATER RIGHT SHALL IVOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Volume: Climatic Area: 2 - MODERATELY HIGH "Maximum Acres: Source Name: Source Type: 31.70 SAGE CREEK SURFACE WATER *Point of Diversion and Means of Diversion: ID *I Govt Lot Q t r Sec SWSESE & 11 Twp 7s 25E County BIG HORN 7s 25E BIG HORN Period of Diversion: MAY 1 TO OCTOBER 31 Diversion Means: HEADGATE *2 W2NWNW 13 Period of Diversion: MAY 1 TO OCTOBER 31 Diversion Means: HEADGATE Period of Use: MAY 1 TO OCTOBER 31 Page 2 of 2 June 29,2015 Post Decree Abstract 4 3 i 185501-00 *Place of Use: ID Acres 1 2 3 4 10.00 3.70 14.70 3.30 Qtr Sec SWNW SENESW W2SE SWSESE & Twp 11 11 11 11 7s 7s 7s 7s 25E 25E 25E 25E County BIG HORN BIG HORN BIG HORN BIG HORN 31.70 Total: . - Govt Lot ---- ~ - - -.-- -- .- p p .. . - . -. - - Remarks: THIS WATER RIGHT IS LOCATED, IN WHOLE OR IN PART, WITHIN THE BOUNDARY OF THE CROW INDIAN RESERVATION. YOSEF M. NEGOSE, Attorney, United States Department of Justice, Indian Resources Section, ENRD P.O. Box 7611 Ben Franklin Station. Washington, D.C. 20044-76 11 (202) 353-8596 yosef.nenose@,usdoi .gov E-MAIL FILED Montana Water Court NATHAN A. ESPELAND, Attorney, Espeland Law Office, PLLC P.O. Box 1470 Columbus, MT 59019-1470 (406) 322-9877 esuela.ndnathan@,gmail.com IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION SHOSHONE RIVER - BASIN 43N CLAIMANT: S E Investments CASE 43N-4 4 3 185501-00 ~ OBJECTORS: Apsaalooke (Crow) Tribe; United States of America (Elureau of Indian Affairs) ON MOTION OF THE MONTANA WATER COURT UNITED STATES' & CROW TRIBE'S OBJECTION COMES NOW, Yosef M. Negose, counsel of record for the United States of America (Bureau of Indian Affairs), and Nathan Espeland, counsel of record for the Crow Tribe, to hereby submit this limited objection to the Water Master's Report filed on June 2,2015 in the above captioned matter. The Master's Report accepted a stipulation that resolved the claim at issue ('43N 185501-OO"), and determined that an informational remark will identify said claim as to a "Walton right". However, the Report also concluded that the post-decree abstract for 43N 185501-00 should identify said claim as to a "Reserved right." The United States and Crow Tribe object to this determination, because the United States and Crow Tribe believe that the general term,"Reserved right", lacks specificity and may cause unwanted confusion. ARGUMENT IN FAVOR OF MORE SPECIFICITY The Montana Supreme Court has noted the oft quoted observation that a rose is a rose is a rose. See Bain v. Gleason, 223 Mont. 442,452,726 P.2d 1153, 1159 (1986) (finding no ambiguity where automobile liability policy defined 'bodily injury' as, inter alia, "bodily injury.").' Likewise, a "Walton right", such as 43N 185501-00, is a "Walton right." Though derived fiom "Winters rights,"2 such rights possess special characteristics-indeed, limitations- that distinguish them fiom federally-held "Reserved rights". See Chief Water Judge Russ McElyea' s Order Rejecting Master ' Report, Order Approving Stipulation and Order Closing s Case in 430-8, filed on January 15,2015 at 4 ("The difference between Waltonrights and Winters rights... is that there are two signzjkant resfi.icti0n.s on Walton rights.") (emphasis added) (citations and quotation marks omitted). To be sure, an informational-remarkidentjfjring 43N 185501-00 as a "Walton right" , i could alert some to the right's limitations; but only at the risk that the interplay between the term "Walton",in the post-decree abstract's remark section, and "Reserved" in the post-decree abstract's type-classification section, will confbe those unfamiliar with the significance of these terms, and with the body of law governing the alienability of federally-held water rights. The Montana Supreme Court has observed that "[t]errninology can affect how people think" about water rightsa3And this Court has emphasized that "accuracy is an important goal in See also G. Stein, Sacred Emily, in Geography and Plays 178, 187 (1922) (reprint 1968). See Colville Confederated Tribes v. Walton, 647 F.2d 42, 50-51 (9th Cir. 1981). Montana Trout Unlimited v. Beaverhead Water Co., 361 Mont. 77,87,255 P.3d 179,187 (201 1) citing Albert W. Stone, Montana Water Law, 73 (State Bar of Montana 1994). this adj~dication.'~ Where, as here, the parties, the record and the Court all agree that Claim 43N 185501-00 is to a "Walton right," application of more accurate terminology may better communicate the parties', and the Court's shared understanding of the characteristics of 43N 185501-00. Because such specificity will limit potential for future confusion, and would assist the adjudication in M y establishing the nature and scope of 43N 185501-00, the United States and Crow Tribe would request, that in addition to including an informational remaik identifying Claim 43N ,185501-00as to a "Walton right," the Court modify the listed type of historical right to reflect its unique, and non-federally held status, changing it horn bbReserved''to "Reserved (Walton)," "Reserved*", "Reserved (W)", ideally, to "~ a l t o n . ~ " or, RESPECTFULLY SUBMITTED, this 10th day of June, 20 15. (Bureau of ~ndian Affairs) Nathan A. Espeland Attorney for the Apsaalooke (Crow) Tribe In re Adjudication o the Existing Rights to the use o all the Water, 2004 WL 6247820 f f (Mont.Water Ct.) at 3. Alternatively, the United States would request that the post-decree abstract's remark section be moved closer to the abstract's type-classification section. I 1 1 i . - .. . CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served by first class mail to the party set forth I I below this 10th day of June, 20 15. James E. Torske Attorney at Law 2 14 North Custer Avenue Hardin, MT 59034 (406) 665-1902 torskelaw@,tctwest.net \ Yosef M. egose

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