Crow Tribe, United States of America , Objectors
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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800424-3270 (In-state only) (406) 5864364 Fax (406) 522-4131 FILED HAY 2 7 2015 Montana Water Court IN THE WATER COURT OF THE STATE OF MONTANA CROW TRIBE OF INDIANS - MONTANA COMPACT CASE NO. WC-2012-06 ORDER APPROVING COMPACT I. PROCEDURAL HISTORY This Order addresses objections to the Crow Compact. The parties to the Compact are the State of Montana, the Crow Tribe, and the United States. They are referenced as the Settling Parties in this Order. The objectors to the Compact are holders of water rights based on state law. In 1975 and 1976, @e United States filed actions to have the Tribe's rights determined in federal court. Based in part on that litigation, the Montana Legislature created the Reserved Water Rights Compact Commission to negotiate settlement of reserved water rights. 2-15-212, MCA; 5 85-2-701, MCA. The Compact Commission 'consists of two members each fiom the House and Senate; four members designated by the governor; and one member designated by the attorney general. 5 2- 15-212, MCA. Negotiation of the Crow Compact began in 1979. The Settling Parties retained experts to develop their respective positions regarding the extent of the Crow Tribe's reserved water rights. Personnel included negotiators, attorneys, technical staff, and consultants. Assembling the technical data and information necessary to undertake negotiations required several years. A tentative agreement was reached in April of 1999, and members of the Compact Commission and the Crow Tribal Council voted to seek approval of the proposed Compact by the Legislature. Montana's Governor called a special session to review the Compact. The Legislature approved the Compact and related funding legislation which was signed by the Governor in June of 1999. The Compact was codified at Section 85-20-901, MCA, United States Congress approved the Compact by passing the Claims Resolution Act of 2010. Pub. L. No. 111-291, 124 Stat. 3064. The Claims Resolution Act was signed by the President of the United States on December 8,2010. After approval by Congress and the President, the Compact was reviewed and approved by members of the Crow Tribe in 201 1. The Compact was signed by the Secretary of the Interior, the Crow Tribal Chairman, and the Governor of Montana in 2012. The Settling Parties asked the Water Court to incorporate the Compact into a Preliminary Decree on October 25,2012. A Preliminary Decree was issued on December 2 1,2012. Notice of the Decree and the opportunity to object was mailed to over 16,000 individual owners of 28,748 water rights in 9 hydrologic basins. More than 100 objections were filed to the Preliminary Decree of the Compact. Many objections were withdrawn, settled, or dismissed before trial. The remaining objections were tried before the Water Court without a jury in February, 20 15. 11. KTRISDICTION The Montana Water Court has jurisdiction to review the Crow Tribe-Montana Compact under the McCarran Amendment of 1952 (43 U.S.C. 5 666); under authority granted by $5 85-2-23 1,233,234,701, and 702, MCA; and under Article VII, Section B.3 of the Compact. Federal and state case law a f f w this jurisdiction. See Arizona v. Sun Carlos Apache Tribe, 463 U.S. 545,564 (1983), and State ex rel. Greely v. Confederated Salish & Kootenai Tribes (Greely 14,219 Mont, 76,89-90,712 P.2d 754,762 (1985). I I 111. BURDEN OF PROOF AND STANDARD OF REVIEW Objectors to preliminary decrees have the burden of proof. An objection "must state the specific grounds and evidence on which the objections are based." 8 85-2-233(4), MCA. The Water Court may declare a Compact void if it sustains an objection to a Compact. 8 85-2-233(8), MCA. Failure to object to a Compact bars any I I I subsequent action before the Water Court. 8 85-2-233(7), MCA. The Water Court reviews objections to Compacts using standards applied to consent decrees. [Tlhe court's intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned. Oficers for Justice v. Civil Sew. Comm 'n, 688 F.2d 6 15,625 (9th Cir. 1982). I I I The purpose of a court's inquiry is not "to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute," nor is it to judge the settlement "against a hypothetical or speculative measure of what might have been achieved by the negotiators." Id. Different standards apply depending on whether an objector is a party or non-party to the Compact. The present Objectors were not parties to the Compact. When considering objections fiom non-parties, the obligation of the Water Court is to determine whether the Compact is "fair and reasonable to those parties and the public interest who were not represented in the negotiation, but have interests that could be materially injured by operation of the Compact." Chippewa Cree Tribe Compact Memorandum Opinion, p. 6, Water Court Case No. WC-2000-0 1 (filed June 12,2002) (emphasis omitted) (citing United States v. Oregon, 9 13 F.2d 576,' 58 1 (9th Cir. 1990)). The Water Court adopted the rule expressed in Oregon that "once the court is II satisfied that the decree was the product of good faith, arms-length negotiations, a negotiated decree is presumptively valid and the objecting party then 'has a heavy burden of demonstrating that the decree is unreasonable."' United States v. Oregon, 9 13 F.2d at 58 1;see Fort Peck Compact Memorandum Opiizioiz, p. 7, Water Court Case No. WC- 1992-01 (filed August 10,200 1). The presumption of validity given to Compacts negotiated in good faith recognizes that agreements reached between adverse parties are entitled to deference from the courts. I It is the policy of the law to encourage settlements. That policy has particular force where, as here, a government actor committed to the protection of the public interest has pulled the laboring oar in constructing the proposed settlement.... Respect for the agency's role is heightened in a situation where the cards have been dealt face up and a crew of sophisticated players, with sharply conflicting interests, sits at the table. That so many affected parties, themselves knowledgeable and represented by experienced lawyers, have hammered out an agreement at arm's length and advocate its embodiment in a judicial decree, itself deserves weight in the ensuing balance. United States v. Cannons Eng 'g Corp., 899 F.2d 79, 84 (1st Cir. 1990) (citations omitted). The Settling Parties filed a summary judgment motion asserting the Compact was entitled to a presumption of validity. Their motion was supported by evidence that the Compact was negotiated at arm's length and was not the product of bad faith. The Objectors raised no genuine issues of material fact to rebut the evidence supplied by the Settling Parties, and this Court ruled that the Compact was entitled to a presumption of validity. Because the Compact is entitled to a presumption of validity, the Objectors' burden at trial was to establish that the Compact is unreasonable. Discharging this burden required the Objectors to satisfy the following test: 1. The Objectors must show that the Compact materially injures their interests; and 2. Their injuries occurred because the Compact does not conform to applicable law. Establishing a connection between injury and the failure of the Compact to comply with applicable law is necessary because Compacts often recognize water rights in locations where demand for water exceeds supply, thereby creating the potential for injury to other water users. Although the potential for such injury may be great, such impacts are not an impediment to recognition of reserved rights. In Winters v. United States, 207 U.S. 564 (1908), the non-Indian owners of state based rights asserted that their water rights in the Milk River were "indispensable" and that if prior Indian reserved rights were recognized, "their lands will be ruined, it will be necessary to abandon their homes, and they will be greatly and irreparably damaged."' Winters v. United States, 207 U.S. 564 (1908) (Justice McKenna7sstatement of prior history,'which preceded the Opinion of the Court). Reserved rights were recognized in favor of the Indians despite these claims of injury. The presence of iqjury alone does not invalidate a Compact if the rights it recognizes are based on applicable law. I In addition to claiming injury, the Objectors raised a number of other issues that were resolved prior to trial. These issues included assertions that the closure of basins outside the boundaries of the Reservation was unreasonable; that the quantification of Tribal rights outside the Bighorn Basin was unreasonable; that the Compact unreasonably interfered with the Objectors' future rights to drill wells or obtain approval of change applications for existing rights; that cash payments authorized by the Compact violated federal criminal law; and that the Compact effectuated a taking of lands belongirig to the Objectors. The Objectors also asserted that the Compact is unconstitutional because it takes water rights fiom the Objectors and conveys them to the Crow Tribe without due process; that the Montana Water Use Act is unconstitutional because it does not contain standards for determining the extent of Indian reserved rights and does not provide state based water users with an opportunity to be heard; that the Tribe should have been required to show that the current and future rights they received were consistent with the rights reserved to the Tribe under federal law, or that there was a legal or factual basis for such rights; and that limiting the Objectors to opposing the Compact after it was adopted was too little too late and amounted to nothing more than an unconstitutional, postdeprivation hearing. The Settling Parties were granted summary judgment on all of these issues. The only issues remaining for trial pertained to whether injury could be proven, and if so, whether it arose because the Compact failed to conform to applicable law.' IV. ISSUES The issues remaining at trial were as follows: 1. Does recognition of Tribal Water Rights in the Bighorn River Basin materially injure the Objectors? 2. Does recognition of Tribal Water Rights in the Ceded Strip materially injure the Objectors? 3. Does the Compact otherwise cause material injury to the Objectors? 4. If injuries were proven, were those injuries caused by failure of the Compact to conform to applicable law? V. PRINCIPLES OF LAW Origins o Indian Resewed Rights f The Water Court applies federal law when reviewing Tribal claims for reserved rights. San Carlos Apache, 463 U.S. at 567; Colo. River Water Consewation Dist. v. United States, 424 U.S. 800,8 12-813 (1976); Greely 11,219 Mont. at 95,712 P.2d at 765. The concept of Indian reserved rights originated with Winters. The Winters dispute arose when ion-Indian inigators above the Fort Bellmap Reservation began diverting water to the detriment of Indian water users. The question was whether senior water users on the Reservation could place a call on junior rights upstream. Winters, 207 U.S. 564 (1908). Resolution of this question required interpretation of the Treaty creating the Fort Belknap Reservation. The Court found that the lands set aside for the Reservation were practically valueless without irrigation. The purpose of the Reservation, which restricted the Tribe See December 24,2014 Order on s m a r y judgment and subsequent pretrial Orders. I 6 to an area much smaller than it used historically, was to help the Tribe convert from a nomadic to a "pastoral and civilized" existence. Id. at 576. The Winters Court held that the Treaty impliedly reserved water rights and rejected the argument that the government "took from [the Tribe] the means of continuing their old habits, yet did not leave them the power to change to new ones." Id. at 577. In the century since Winters was decided, the recognition of reserved water rights to fulfill the purposes of a reservation has become an established feature of federal law. While water rights recognized on federal lands are narrowly defined in accordance with the primary purposes of the reservation, Indian reserved rights "are given broader interpretation in order to further the federal goal of Indian self-sufficiency." Greely II, 219Mont. at98. QuantiJication of Indian Resewed Rights Although Winters established that Indian water rights could be reserved by implication, it did not define the amount of such rights. Quantification of Indian reserved rights arose in Arizona v. California, 373 U.S.546 (1963). Arizona v. California involved a dispute over Colorado River water between several western states and the United States on behalf of five Indian Tribes. The special Master resolving those claims "found that the water was intended to satisfy the future as well as the present needs of the Indian Reservations and ruled that enough water was reserved to irrigate all the practicably irrigable acreage on the reservations." Id. at 600. Arizona argued "that the quantity of water reserved should be measured by the Indians' 'reasonably foreseeable needs. "' Id. The Court rejected Arizona's argument and held "that the only feasible and fair way by which reserved water for the reservations can be measured is irrigable acreage." Id. at 60 1. This test became known as the practicably irrigable acreage, or PIA, standard. Application of the PIA standard involves identification of irrigable acreage within a reservation. Once irrigable lands are identified, the PIA method requires that irrigation of such lands be economically feasible. The PIA standard has had a mixed reception. The standard "has been sharply citicized fiom both state and tribal perspectives." Cohen 's Handbook o Federal Indian f Law, 9 19.03[ 5 ][b], at 1185 (Nell Jessup Newton, ed., LexisNexis 2005). The focus on an agricultural method of quantification "can force tribes to conform to the nineteenthcentury ideal of an agrarian society at a time when agriculture is no longer necessarily profitable." Id. The economic feasibility part of the test has also been criticized as inexact and easily manipulated because "small variances in the discount rate can make the difference between a project that is economically feasible and one that is not." Id. at 1186. The Arizona Supreme Court declined "to approve the use of PIA as the exclusive quantification measure for determining water rights on Indian lands." In re the General Adjudication o All Rights to the Use o Water in the Gila River Sys. (Gila River), 20 1 f f Ariz. 307,318,Y 37,35 P.3d 68,79 (2001). Gila River rejected exclusive use of the PIA standard because it forced Tribes "to pretend to be farmers in an era when large agricultural projects are risky, marginal enterprises." Gila River, 7 34 (internal quotation marks omitted). The PIA standard was also criticized because it encouraged "inflated, unrealistic irrigation projects" and deterred "consideration of actual water needs based on realistic economic choices." Gila River, 7 35. The Court found that PIA "also potentially frustrates the requirement that federally reserved rights be tailored to minimal need" and "awards what may be an overabundance of water by including every irrigable acre of land in the equation." Gila River, 7 36. Rather than apply the PIA standard, the Arizona Supreme Court followed the rule that "determining the amount of water necessary to accomplish a reservation's purpose is a 'fact-intensive inquiry that must be made on a reservation-by-reservation basis."' Gila 1, River, 7 38 (quoting Gila 11195 Ariz. 41 1,420,73 1 989 P.2d 739,748). Despite differences of opinion regarding the utility of the PIA standard, it has been used to negotiate settlements of claims for Indian reserved rights, and to define those rights in litigation. The Montana Supreme Court referenced the standard with approval in 8 Greely 11,219 Mont. at 92-93. The PIA standard has been used to defme water rights for the Wind River Indian Reservation on the upper reaches of the Bighorn River in Wyoming. In re the General Adjudication ofAll Rights to Use Water in the Big Horn River Sys., 753 P.2d 76 (Wyo. 1988). Use of the PIA standard in the Wyoming Big Horn litigation was affirmed by an evenly divided United States Supreme Court. Wyoming v. United States, 492 U.S. 406 (1989). All parties in the present case relied on variants of the PIA test to defme portions of the Crow Tribe's water rights, and the test is applied in this Order where appropriate. VI. FINDINGS OF FACT This Court had the opportunity to observe the demeanor and credibility of witnesses at trial, and assign weight to their testimony. The following facts were established by a preponderance of the evidence. The Compact allocates reserved water rights to the Crow Tribe for both current and future uses. The Tribe and its members are currently using water on the Reservation for a variety of purposes, including agriculture. Those uses are referenced in this Order as current uses. A list of current uses has been prepared by the United States and reviewed by the Montana DNRC. Future uses are water rights reserved for the Tribe, but not yet put into use. The Objectors retained an expert witness, Mr. Thomas Osborne, to assist them with identifymg examples of material injury to their water rights. Mr. Osborne is a hydrologist. The Objectors filed a number of affidavits as attachments to briefs, but no Objectors testified at trial. As a consequence, the Objectors' burden of proving injury fell on the shoulders of their expert witness. The Compact recognizes water rights in favor of the Crow Tribe from a variety of sources and geographic locations, including the Bighorn River Basin, the Little Bighorn River, Pryor Creek, Rosebud Creek, the Ceded Strip, and rivers and tributaries in other basins. A summary of these rights is provided below. Water Rights in the Bighorn River Basin The Compact recognizes a natural flow water right in the Bighorn River for current and future uses in the amount of 500,000 acre feet per year (AFY). 5 85-20-901, MCA (Art. 1II.A.1.a). Usage of this right (referred to in this Order as the "Bighorn River Right7')is subject to a number of conditions and limitations in the Compact and in the Streamflow and Lake Level Management Plan (hereafter "Management Plan"). These limits include: protections for State Based Rights2 from assertion of senior priority by current uses of the Tribal Water Right; subordination of future Tribal uses to existing state based uses; and protection of instrearn flows in the Management Plan. The first limitation on the Tribe's Bighorn River Right is found in Article 111, Section A.6 of the Compact. 5 85-20-90 1, MCA. This provision protects water rights recognized under state law with priority dates before June, 1999, when the Montana Legislature ratified the Compact. State Based Rights are protected from assertions of senior priority by current uses of the Tribal Water Right. Current uses of the Tribal Water Right are defined as uses of water developed before ratification of the Compact by the Legislature. The State Based Rights protected by Article 111, Section A.6 include valid existing rights decreed or to be decreed by the Montana Water Court; permits issued by the DNRC; state water reservations; water rights exempt from filing under statute; and water rights excepted from the permit process under statute. § 85-20-901, MCA (Art. III.A.6.b). The foregoing list covers almost all of the state based water rights in or near the Crow Reservation. Distribution of water between current uses of the Tribal Water Right and State Based Rights is controlled by Article IV, Section A.4.a, which provides that water shall be shared between these two groups of rights "on an equitable basis." Under this provision, State Based Rights and current uses of the Tribal Water Right must share water during times of shortage. 5 85-20-90 1, MCA (Art. IV.A.4.a). For the sake of brevity, state based rights with priority dates before June, 1999 are referred to as "State Based Rights" i this Order. n 10 Future development of the Tribe's right to natural flow in the Bighorn River is also subject to restrictions. Future development is defined as uses arising after ratification of the Compact by the Montana Legislature. 8 85-20-901, MCA (Art. IV.A.4.b). Under this provision, future uses of the Tribal Water Right "shall be enforced as junior in priority" to senior State Based Rights. This provision subordinates future uses of the Tribal Water Right to State Based Rights. The Tribe's 500,000 AFY right in the Bighorn River is also subject to limits set forth in the Management Plan. § 85-20-90 1, MCA (Art. 1II.A.1.a). The Management Plan was adopted by the Crow Tribe, the State of Montana, and the United States on June 16, 2000. See Ex. 1 of Settling Parties' Ex. 2 1. The following limits on use of the Tribal Water Right are included in the Management Plan: 1. The Tribe must permanently dedicate 250,000 AFY of the Tribal Water Right to instream flow in the Bighorn River. The Management Plan defines instream flow as water released from Yellowtail Afterbay Dam and maintained from that point to a location 500 feet upstream of the Two Leggins diversion facility.3 2. The Crow Tribe must dedicate up to 30,000 AFY of the Tribal Water Right to instream flow in the Bighorn River to replace diversions by the Northern Cheyenne Tribe. 3. The Tribe must permanently dedicate to instream flow at least 50 percent of any water salvaged as a result of improvements to the Bighorn Unit of the Crow Irrigation Project. 4. The Tribe must dedicate to instream flow any portion of the Tribal Water Right that is not developed. Ex. 1 of Settling Parties' Ex. 21, at 2-3. Storage Water Article 1 1of the Compact also allocates to the Tribe an additional 300,000 AFY 1 of storage water in Bighorn Lake. 5 85-20-901, MCA (Art. III.A.l.b.(l)). The water The Two Leggins diversion is located on the Bighorn River a few miles upstream, or south, of Hardin. The Bighorn River exits the Crow Reservation about one mile north of Hardin. rights allocated by this provision are owned by the United States and managed by the Bureau of Reclamation. The Bureau of Reclamation claimed a priority date of May 5, 1961 for its storage rights, making them substantiallyjunior to the reserved rights based on the Treaty, and junior to most state based irrigation claims in the Bighorn River Basin. The 300,000 AFY ofjunior storage water contributed by the United States is divided into two equal blocks of 150,000 AFY each. Like other portions of the Tribal Water Right, both of these 150,000 AFY blocks are subject to limitations on use. 8 85-20-901, MCA (Art. III.A.l.b.(l)). The first 150,000 AFY can be used by the Tribe, but only 50,000 acre feet of that amount can be used off the Reservation. 8 85-20-901, MCA (Art. 1II.A.1.b.(l)(a)). This 150,000 acre foot block of storage makes the total amount of water available for use by the Tribe 650,000 AFY: 500,000 AFY from natural flow, plus 150,000 AFY of storage. The remaining 150,000 AFY of Bighorn Lake water must be used to protect instream flows on the Bighorn during low flow periods. If that water is not needed to protect instream flows, then it may be diverted "in years of excess Natural Flows and excess storage" but only "when unappropriated or unallocated water is available." 8 85-20-90 1, MCA (Art. 1II.A.1.b.(l)(b)(i)-(ii)). The latter usage shall not adversely affect State Based Rights. 8 85-20-901, MCA (Art. 1V.C. 1.a). In addition to allocating 300,000 AFY of stored water to the Crow Tribe, the United States agreed that the remaining storage capacity of Bighorn Lake would only be used for flood control, production of power, and for maintenance of instream flows, lake levels, and carryover storage. 8 85-20-901, MCA (Art. 1II.A.1.b.(2)). This concession set aside the remaining storage capacity of Bighorn Lake and prevented its use for other purposes. Use of PIA to Quantzfi Tribal Water Rights in the Bighorn River Basin The parties to the Compact each retained separate teams of experts to define the extent of the Tribe's water rights. Their objective for the Bighorn Basin was to quantify the Tribe's rights using the PIA standard. This process began with an assessment of arable lands withid the Reservation. The Crow Tribe retained MSE-HKM Engineering to identify the Tribe's arable land base. The Tribe's initial estimate of total arable land was 532,33 1 acres, with 206,948 acres of the total in the Bighorn River Basin. The Compact Commission also developed an assessment of arable lands. The Compact Commission identified 145,642 acres of arable land within the Reservation, and 60,249 acres of arable land within the Bighorn River Basin. The United States undertook an assessment of arable lands, but that assessment was not available at trial. Assessment of arable lands included factors such as slope, geology, drainage, permeability, soil texture, erosion potential, elevation, climate, salinity, and other variables. As part of their PIA analysis, the parties used a variety of outside sources to assess I current and historical water usage within the Reservation. These sources included the Montana Water Resources Survey, aerial photographs, satellite imagery, and diversion records for the Bighorn Canal. Because the Bighorn River is also part of the Yellowstone ,River Compact between Montana and Wyoming, considerable work had been previously I completed regarding the extent of existing irrigation within the Bighorn River Basin, as well as potential irrigable acreage within the Basin. This work included an engineering report dated September 24, 1950 prepared for the Yellowstone River Compact Commission. The engineering report was available to the parties in preparing their PIA analysis. As with arable lands, there was a divergence of information regarding the extent of both historical and potential future irrigation. The engineering report for the Yellowstone River Compact identified 33,740 acres of historical irrigation. The Water Resources Survey identified 25,900 acres. The engineering report for the Yellowstone River Compact also identified 39,600 acres of potential future irrigation. The Crow Compact Commission concluded that between 100,000 and 110,000 acres could be served by water fiom the Bighorn River. This acreage included acreage within the Bighorn River Basin, as well as lands within the Little Bighorn River Basin serviceable with water from the Bighorn River. Once practicably irrigable acreage was determined, a separate determination was made regarding the amount of water necessary for irrigation of that acreage. This determination required analysis of three components of irrigation water rights: net irrigation requirement, carriage losses, and irrigation efficiency. The sum of these components equaled the volume of water necessary to undertake irrigation on the Reservation. The engineering report for the Yellowstone River Compact used a net irrigation requirement of 1.6 acre feet per acre, the same standard used by the Crow Compact Commission. A net irrigation requirement of 1.6 acre feet per acre falls within the ranges seen in other cases and is conservative and reasonable. Application of this standard to the 100,000 to 1 10,000 acres identified as practicably irrigable with water fiom the Bighorn River resulted in a net irrigation requirement of between 160,000 and 176,000 acre feet of water per year. Use of ,the 1.6 acre foot per acre net irrigation requirement quantified the amount of water necessary for crop consumption, but did not quantify carriage losses between the point of diversion and the place of use, nor did it take into account irrigation efficiency. The amount of water that needs to be diverted to compensate for carriage losses is impacted by a number of factors. These factors include the length, efficiency, and type of' canals or diversion structures, climate, and water management practices. Additional calculations were performed to determine those carriage losses. Once carriage losses were determined, they were added to the net irrigation requirement. Irrigation efficiencies also impact the amount of water that must be diverted for successful irrigation. Irrigation efficiencies vary widely depending on factors such as the use of flood versus sprinkler irrigation. The Compact Commission used an irrigation efficiency of 35% to calculate the amount of water necessary for diversion fiom the Bighorn River. Flood irrigation is generally less efficient than sprinkler irrigation, and the majority of land within the Reservation is flood irrigated. An irrigation efficiency of 14 35% lies within the range of irrigation efficiencies found in other cases and is therefore reasonable. Using an irrigation efficiency of 35%, the Compact Commission concluded a gross diversion of 500,000 acre feet per year was needed to service 110,000 acres with water from the Bighorn River. The Tribe wanted more than 500,000 AFY from the Bighorn. The Tribe identified 206,948 arable acres, and asserted it was entitled to divert 1,152,566 AFY to irrigate these acres. The disparity between the claims made by the Tribe and the position of the Compact Commission was resolved by allocating the Tribe 500,000 AFY of natural flow plus the first 150,000 AFY block from the junior storage rights owned by the United States in Bighorn Lake. The result was a total allocation to the Tribe of 650,000 AFY for the Bighorn River. Not all of the Tribe's 650,000 AFY allocation is available for diversion and consumptive use. That allocation is restricted by requiring the Tribe to use 250,000 AFY to maintain instream flows in the Bighorn River, and by other limiting provisions in the Compact and Management Plan. This leaves the Tribe with 400,000 AFY in most circumstances. The Objectors also quantified current and future water usage in the Bighorn using PIA analysis. The Objectors' analysis was similar to that used by the Compact Commission. Similarities included Osborne's acknowledgment that use of an irrigation efficiency of 35% was conservative, and his conclusion that the correct volume for the Bighorn River Basin was 477,220 AFY. The parties reached nearly the same conclusions regarding the volume of water needed to accomplish irrigation in the Bighorn Basin. The Objectors' concluded that the correct volume was 477,220 AFY, an amount nearly equal to the 500,000 AFY recognized in the Compact. Despite calculating a volume similar to the amount allocated in the Compact, the Objectors claimed they would be injured by the quantity of water allocated to the Tribe. The Objectors' claims of injury were premised on a mistaken assertion that the Compact allocated too much Bighorn River water to the Tribe. The Objectors misunderstand the i Compact. As an example, the Objectors incorrectly assumed the 300,000 AFY in storage rights owned by the United States were part of the Tribe's reserved water right. Relying on this assumption, the Objectors erroneously concluded the Tribe received an 800,000 AFY water right with a May 7, 1868 priority date. In fact, the Tribe only received 500,000 AFY. The additional 300,000 AFY belongs to the United States and has a priority date junior to most State Based Rights on the Bighorn. A key issue at trial was whether current uses of the Tribal Water Right caused material injury to the Objectors. The expert witness for the Objectors was not aware of material injury to any objector from a current use of the Tribal Water Right. Mr. Osborne admitted it would be hard to know whether implementation of the current Crow Tribal Water Right would harm any of the Objectors. Water Availability in the Bighorn and Material Injury to the Objectors Only a small fraction of lands within the Bighorn drainage are outside the Reservation. Approximately four percent of the total drainage area of the Bighorn River is downstream of the Crow Reservation. The remaining portion is located within the i Reservation or in Wyoming. Current and future irrigated land downstream of the Reservation was estimated at 32,800 acres. Average annual flows of the Bighorn at the Saint Xavier gauging station were 2,600,000 AFY between 1967 and 1999. Although flows of the Bighorn were previously allocated between Montana and Wyoming as part of the Yellowstone Compact, there was no credible evidence that present or future water availability in the Bighorn River would be insufficient to satisfy the Objectors' water rights if the Compact is approved. The Objectors conceded at trial that there was more than enough water in the Bighorn to meet their needs. Water Rights for the Ceded Strip The Compact allocates water rights to the Crow Tribe for diversion from various sources within the Ceded Strip. The Ceded Strip was once part of the Crow Reservation, but over 1.1 million acres were ceded to the United States by congressional action in 1904. Act of Apr. 27, 1904, ch. 1624,33 Stat. 352. Congress granted the Tribe ownership of land and mineral rights within the Ceded Strip in 1958. These land and mineral interests are not within the boundaries of the Crow Reservation as defined in the Compact, but are held in trust for the Tribe by the United States. These land and mineral interests have been described as "components of the .~ Reservation" by federal c o ~ r t s The mineral interests include substantial coal deposits. The Crow Tribe can monetize its interests in these coal deposits in a number of ways, including mining and coal-based energy production. Both mining and energy production require water. The Compact allocates 47,000 AFY to the Tribe from sources within the Ceded Strip, including the Yellowstone River. This 47,000 AFY allocation is part of the Tribal Water Right, and is in addition to water allocated to the Tribe fiom other sources. 5 85-20-90 1, MCA (Art. 1II.F). The right for the Ceded Strip was not quantified in the same manner as rights fiom the Bighorn River. Rather than using PIA analysis, the Ceded Strip right was quantified by multiplying the Tribe's surface acres by a factor of 3 acre feet per acre, yielding a ' volume of 46,659 AFY. This number was rounded to 47,000 AFY. The Montana Compact Commission proposed a water right of 47,000 AFY for development of the Tribe's property and mineral interests in the Ceded Strip, and that proposal was accepted by the Tribe and the United States. The Tribe's water right in the Ceded Strip is subject to a number of~limitations. Foremost is a requirement that any water diverted from the Yellowstone River must be deducted from the Tribe's 500,000 AFY Bighorn allocation. In addition, diversions in the Ceded Strip are capped at 7,000 acre feet per month, and no more than 2,500 acre feet can be diverted annually above the confluence of the Yellowstone and Bighorn Rivers. 5 85-20-901, MCA (Art. 1II.F.1.a.(l)-(2)). Average flow of the Yellowstone River at gauging sktion 062 14500 near Billings, Montana is 4,997,726 AFY. The 2,500 AFY Crow Tribe v. Montana, 650 F.2d 1104, 1 1 1 (9th Cir. 1981); Crow Tribe v. Montana, 819 F.2d 895,898 (9th C r 7 i. 1987), summarily affd,Montana v. Crow Tribe, 484 U.S. 997 (1988). that can be diverted above the Bighorn represents 0.05% of average Yellowstone River flows. As with other Tribal Rights, current uses of the Ceded Strip water right may not be used to assert a priority senior to State Based Rights. In addition, all future development of the Ceded Strip right is junior to State Based Rights. Current uses of the Tribal Water Right in the Ceded Strip are minimal. These uses consist of 3.2 AFY for a domestic trailer court, 131.62 AFY for irrigation of 54.9 acres, and a variety of wells, springs, and stockwater ponds. Settling Parties' Ex. 17. There was no evidence that current uses on the Ceded Strip were causing or could cause injury to the Objectors. Likewise, there was insufficient evidence to conclude that future uses of the Ceded Strip right would harm the Objectors. The Objectors' claims of injury from such uses were speculative. Tribal Water Rights Outside the Bighorn Basin and the Ceded Strip The Compact also recognizes water rights fiom a number of smaller sources outside the Bighorn Basin and the Ceded Strip. These sources include the Little Bighorn River, Pryor Creek, Rosebud Creek, Young's Creek, Squirrel Creek, Tanner Creek, Dry Creek, Spring Creek, Sarpy Creek, Cottonwood Creek, Five Mile Creek, Bluewater Creek, Sage Creek, Fly Creek, Blue Creek, and Bitter Creek. 5 85-20-901, MCA (Art. 1II.B; Art. 1II.C; Art. 1II.D; Art. 1II.E). The Tribe received all the water in these basins, subject to limits set forth below. The amount of water received by the Tribe was not quantified, which was a matter of concern to the Objectors. That concern was addressed by summary judgment. There was no reason to quantify Tribal Water Rights within the smaller basins because there is not enough water to irrigate all the arable lands within those basins. Quantification would only have resulted in enumeration af Tribal rights greater than the supply of water available. Although the Tribe received all the water in the smaller basins, the Tribe's rights are subject to limitations designed to protect State Based Rights. State Based Rights with priority dates before ratification of the Compact are protected by shortage sharing provisions. 8 85-20-901, MCA (Art. IILB.6; A t 111.c.6; Art. III.D.6; Art. III.E.6). These r. provisions require an equitable distribution of water between current uses of the Tribal right and existing State Based Rights in times of shortage. The shortage sharing provisions apply to all existing State Based Rights with priority dates before ratification of the Compact, thereby improving the position of these rights. Therefore, the Tribe must share water with existing State Based Rights, including many junior rights, and cannot . divert all the water available in smaller basins to satisfy its current uses. In places where current Tribal uses are less than existing state uses, the Tribe will receive less water than state users in times of shortage despite having a water right for all the water in the basin. Future uses of the Tribal Water Right in smaller basins are subordinate to State Based Rights. Post-1999 Water Rights of the Objectors Only one water right belonging to the Objectors has a priority date junior to June, 1999. That right is 43Q 30013922 belonging to Tim and Shirlene Watts. The Watts' claim is for a domestic well over 1,300 feet in depth and is located off the Crow Reservation. The location, depth, and geological formation in which the well is located make the possibility of adverse impacts from the Crow Tribal Water Right remote. Impacts to Other Rights of the Objectors Much of the opinion of the Objectors' expert focused on the potential of the Compact to prevent the Objectors from obtaining permission to drill hypothetical wells in the future. This Court ruled on summaryjudgment that the Objectors did not have a property interest entitling them to obtain new water rights in the future, irrespective of the Compact. The Objectors did not otherwise supply credible evidence of adverse impacts to their individual water rights associated with current or future uses of the Tribal Water Right. VII. ANALYSIS 1. Does recognition of Tribal Water fights in the Bighorn River Basin materially injure the Objectors? Compacts often recognize rights where water is scarce. In addition, Compacts memorialize water rights years after they have arisen under federal law. These two factors create the potential for disruption of State Based Rights when a Compact is ratified. Based on this reality, the Water Court has adopted a two-pronged test for evaluation of objections to a Compact once a presumption of validity has been established. The first prong of the test requires proof that recognition of water rights in the Compact will materially injure the Objectors' interests. The presence of injury alone, however, does not render a Compact unreasonable. As demonstrated in Winters, Indian reserved rights can be affirmed even in the presence of substantial injury to other water users. Once material injury has been established, the validity of Indian reserved rights depends upon whether those rights conform to applicable law. Accordingly, an objector must establish a link between his or her injuries and the failure of the Compact to define Indian reserved rights in accordance with applicable law. The Objectors in this case framed their objections according to the geographic location of Tribal rights addressed in the Compact. For that reason, the frst question is whether the Objectors demonstrated material injury from recognition of the Tribe's right in the Bighorn Basin. The Objectors made two important concessions which precluded them from proving such injury. First, they conceded that there is more than enough water in the Bighorn River Basin to satisfy all water users. Second, they conceded that current uses of the Tribe's Bighorn rights are not adversely affecting their rights. Other problems also impacted objections to the Compact. For example, the Objectors incorrectly assumed that the Tribe received a water right for 250,000 AFY for instream flows in the Bighorn. In fact, the Management Plan requires that the Tribe use the first 250,000 AFY of its Bighorn River right to maintain instream flows. This requirement reduced the amount of water available for diversion and was therefore a limit on the Tribe's right. It was not a grant of a water right to the Tribe. Finally, the Objectors totaled surface flows for sources other than the Bighorn and added the sum of those flows to the Tribe's rights to reach a total allocation of 1,036,144 AFY. This arithmetic was in error. Quantifying rights outside the Bighorn Basin by totaling surface flows incorrectly assumed the Tribe could divert 100% of those flows at all times. This assumption ignores language in the Compact requiring that shortages in those basins be shared pro rata with State Based Rights. These shortage sharing provisions make it impossible for the Tribe to divert the entirety of the flows in these basins. The Objectors' failure to recognize that the Tribe could not divert all of the water in these basins resulted in overstatement of their calculations of Tribal rights. Both the Settling Parties and the Objectors used the PIA standard to quantify Tribal rights in the Bighorn River. The quantification of these rights by the Objectors nearly matched the amounts allocated by the Compact. The Compact allocates 500,000 AFY, while the Objectors concluded the amount should be 477,000 AFY. The similarity between these results is noteworthy considering the complexity of PIA analysis. The Objectors asserted the total amount of water granted to the Tribe for the Bighorn was 800,000 AFY, comprised of the 500,000 AFY natural flow right plus 300,000 AFY of storage from Bighorn Lake. This assertion depended on the incorrect assumption that all the storage water from Bighorn Lake was available for consumption, rather than 150,000 AFY as allocated by the Compact. It also failed to take into account the Tribe's obligation to leave 250,000 AFY in the Bighorn River above Two Leggins. This limitation reduced the amount the Tribe could actually use for irrigation from 650,000 AFY to 400,000 AFY. The 400,000 AFY amount available to the Tribe is less than the 477,000 AFY the Objectors estimated the Tribe needed. The Objectors questioned whether there would be enough water in the Bighorn to satisfy the Tribe's obligation to maintain the required instream flow above Two Leggins, 21 and simultaneously meet forecasted needs for irrigation of lands in the Little Bighorn as in.' The materialization of such a scenario in the future, assuming this concern is correct, would work against the Tribe and in favor of State Based Rights by precluding diversion of the full Tribal Water Right and by maintaining instream flows in the Bighorn. Despite their concern that there might not be enough water to maintain instream flow above Two Leggins, the Objectors also offered the contradictory opinion that the 300,000 AFY of Bighorn Lake storage contributed by the United States would not be needed because there was a surplus of water available in the Bighorn drainage. The assertion of these two conflicting opinions regarding water availability in the Bighorn River undercut the Objectors' claims of injury. The latter argument was apparently made to support the assertion that state based water users, and not the Tribe, should have a preferential right to use the United States' storage rights in Bighorn Lake. No credible evidence or legal analysis was offered to support this assertion. In summary, the Objectors failed to show any injury from current uses of the Tribe's Bighorn rights. The elimination of injury from these rights left the Objectors with only one option. That option required them to demonstrate injury arising from future uses. The possibility of such injury is foreclosed by Article 111of the Compact, which states: New development of the Tribal Water Right shall be exercised as junior in priority to water rights Recognized Under State Law in the Bighorn River Basin with a priority date before this Compact has been ratified by the Montana legislature or excepted rights that are provided in section D. 1., of Article IV. 8 85-20-90 1, MCA (Art. III.A.6.a.(2)). Mr. Osborne was concerned about the accuracy of forecasts for water usage in the Little Bighorn Basin using water diverted from the Bighorn River. Despite these concerns, he did not analyze the feasibility of such diversions himself, nor did he account for usage of the Tribal Water Right to irrigate approximately 18,000 acres of non-Tribal lands. As this Court ruled prior to trial, the effect of this provision is to subordinate future uses of Tribal rights in the Bighorn River Basin to State Based Rights with priority dates before Compact ratification. The subordination of the Tribe's future uses of water in the Bighorn River Basin is intended to prevent adverse impacts to State Based Rights. Art. III.A.6.e. The term "Adverse Affect'' as used in the Compact is defined as "interference with or to interfere with the reasonable exercise of a water right." 5 85-20-901, MCA (Art. 11.3). This language prevents injury to the Objectors arising from future development of Tribal Water Rights in the Bighorn River Basin. The Objectors were unable to establish material injury from either current or future uses of the Tribe's Bighorn River water rights. Establishing such injury is the essential first element of a successful objection to a Compact. 2. Does recognition of Tribal Water Rights in the Ceded Strip materially injure the Objectors? Analysis of injury associated with Tribal rights on the Ceded Strip is similar to the Bighorn. Current uses of water by the Tribe on the Ceded Strip are virtually nonexistent, and there was no evidence they impact other water users. Current uses do not materially injure the Objectors. Future uses of water on the Ceded Strip are subject to the same limitations as future uses on the Bighorn. Any future use by the Tribe will be subordinated to existing State Based Rights. Additional safeguards to protect State Based Rights are built into usage of Ceded Strip water rights. These protections include limitations on the location and amount of diversions. The Objectors' expert asserted that much of the Tribal land in the Ceded Strip would be difficult to irrigate. Assuming this assertion is true, it signifies that the threat of competition from future Tribal irrigation is low. The Objectors did not otherwise attempt to quantify rights in the Ceded Strip using the PIA standard, thereby leaving the amount allocated to the Tribe unchallenged. 23 The Tribe owns over 80,000 acres of mineral interests in the Ceded Strip, including substantial coal deposits. Water in the Ceded Strip may be used for mining and coal fired power generation. The average annual consumption of water for each of the three existing coal fired generating plants in southeast Montana is about 40,000 AFY. The Objectors did not provide evidence that use of water for power generation was beyond the scope of rights the Tribe was entitled to receive pursuant to Treaty or under the federal Indian reserved rights doctrine. The Tribe's Ceded Strip water right is not presently being used for power generation, and future use for that purpose would make it subordinate, or junior, to State Based Rights. Common sense indicates that anyone relying on a junior water right to supply a future power plant would c o n f i i a reliable supply of water before starting construction. If sufficient water is available to supply the Tribe's junior right, then senior State Based Rights will not be harmed. If sufficient water is not available, then senior users can cut off delivery of water to the plant by placing a call on the junior rights used to supply it. Under either scenario, the likelihood of injury to a State Based Right water user is remote. The Objectors asserted that exercise of the Tribe's right on the Ceded Strip had the potential to cause injury to water users off the Reservation because future uses of this right could not be known. This assertion is incorrect for several reasons. First, it assumes the majority of the Ceded Strip reserved right is senior to State Based Rights, when the opposite is true. Second, it assumes all future uses of Indian reserved rights must be specifically identified in advance for them to be valid; the Objectors did not support this proposition. Finally, it ignores the Compact's prohibition against Adverse Affect. . Regardless of how the Tribe uses its Ceded Strip rights in the future, the Tribe must assure that State Based Rights are not adversely affected. State Based Right water users will only be injured if they fail to speak up and assert their senior priority dates. In that regard, these water users occupy the same position as any other senior water right owner in Montana. 24 The Objectors were unable to establish material injury from either current or future uses of the Tribe's water rights in the Ceded Strip. 3. Does the Compact otherwise cause material injury to the Objectors? The Objectors raised other claims of injury in addition to those allegedly caused by recognition of the Tribal Water Right. These issues included allegations that distribution of Tribal rights would harm the Objectors' interests, that reacquisition of land and water rights by the Tribe would cause injury, and allegations of injury to specific water rights held by individual Objectors. Allegations of Injury Arisingfiom Distribution Some of the Objectors asserted that distribution of water from Pryor Creek was not occurring in the manner contemplated by the Compact. They asserted upstream Indian water users are not allowing water downstream, even though adequate water has been available to satisfy both groups. This complaint pertains to the enforcement of water rights between Indian and State Based Right owners. It does not raise an issue regarding the validity of the Compact. In fact, the Objectors assert their problems would be solved if water was distributed in accordance with the Compact, thereby validating the Compact, rather than undermining it. Allegations of Injury Arising9om Reacquisition of Former Tribal Lands The Objectors assert that Tribal reacquisition of former trust lands will be harmfkl. They assert that reacquisition of such lands will diminish the number of current State Based Rights against which the Objectors can place a call. The Objectors assert the existence of these State Based Rights creates a buffer which protects them from exercise of the Tribal Water Right by providing a pool of water against which they can make a call. They assert that purchase of State Based Rights by the Tribe will eliminate this buffer and expose them to greater risk of shortage. The Objectors' assertions about the benefits of such a buffer are based on a misunderstanding of the Compact, the fundamentals of water distribution in a priority system, and federal common law applicable to water rights on reacquired lands. The Compact addresses reacquisition of trust lands in Article 111, Section G. 1. 5 85-20-901, MCA. This provision recognizes the Tribe's right to use water appurtenant to reacquired land. It is well-settled law in Montana that water rights are appurtenant to land unless severed therefrom. Castillo v. Kunneman, 197 Mont. 190,642 P.2d 1019 (1982). The Compact's restatement of this principle is unremarkable, because it applies to any purchaser of lands with appurtenant water rights. This provision affords the Tribe nothing more than the common-law rights enjoyed by all water users. The Objectors' assertions about the need for a buffer overlook common sense principles of water distribution. Contrary to the Objectors' assertions, the Tribe has little incentive to abandon State Based Rights appurtenant to re-acquired lands. Absent such abandonment, the buffer sought by the Objectors will remain in place. State Based Rights will only be removed fi-om circulation if the ~ h b elects to e abandon those rights in the future. Even if the Tribe were to abandon whatever State Based Rights it acquires, the water previously diverted in conjunction with those rights would stay in the source and continue to be available for use by other State Based Right water users. Those State Based Right water users will be in a stronger position if abandonment occurs. In either example, the Objectors' interests remain protected. The Objectors' buffer argument also overlooks federal common law pertaining to reacquisition of former reservation lands by an Indian Tribe. Several types of water rights are potentially appurtenant to such lands. These rights include State Based Rights, undeveloped reserved rights, and Walton rights. See United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984). Under Anderson, those rights are returned to the Tribe upon reacquisition. The Compact does not conflict with Anderson. The question is what happens when the Tribe reacquires water rights like those identified in Anderson. The Compact states that if reacquired lands are transferred back into trust status, "the water right appurtenant to the land acquired shall become part of and not in addition to the Tribal Water Right quantified in this Compact with a May 7, 1868 priority date." 5 85-20-90 1, MCA (Art. 1II.G. 1) (emphasis added). This language does not mean that newly acquired State Based Rights are elevated to reserved rights status and added to the Tribal Water Right, as the Objectors appear to believe. No matter I i how many State Based Rights the Tribe acquires in the future, the Tribal Water Right is capped at the levels defined in the Compact. This provision represents a benefit to the Objectors by assuring that reacquisition of land by the Tribe cannot enlarge the Tribal Water Right. Similar analysis applies to reacquired lands with appurtenant reserved or Walton rights. Walton rights are a modified form of reserved rights held by non-Indian landholders who acquired former reservation land fiom Indian allottees. Colville Confederated Tribes v. Walton, 647 F.2d 42,5 1 (9th Cir. 1981). In the absence of Article 111, Section G. 1, reacquired reserved or Walton rights would be added to the Tribal Water Right. But under this language in the Compact, such rights are not added to the Tribal Water Right. Instead, they are administered as part of the Tribal Water Right, with the size of the Tribal Water Right remaining fixed as originally defined by the Compact. The Tribal Water Right cannot be expanded by the acquisition of former Tribal lands with appurtenant reserved or Walton rights. The foregoing analysis means that the Tribe's water right for the Bighorn River cannot be increased if the Tribe reacquires former trust lands in the Bighorn River Basin. No matter what reserved or Walton rights the Tribe acquires in the future, its Bighorn River Right will remain the same. Likewise, the Tribe's rights in Pryor Creek cannot be expanded by the reacquisition of former trust lands within that basin. The inability of the Tribe to add new reserved rights to the rights defined by the Compact works to the benefit of the Objectors, not to their detriment. Generalized Claims of Injury Outside the Bighorn Basin and Ceded Strip The Objectors also assert generalized claims of injury to their water rights. These assertions overlook the plain language of the shortage sharing provisions in the Compact. To illustrate, an objector with a priority date junior to May 7, 1868 will be better off with the Compact than without the Compact. Without the Compact, such an objector would be subject to a call from both current and future uses of the Tribal Water Right. With the Compact, junior water users are treated as if all their rights predating June, 1999 are equal in priority to current uses of the Tribe's May 7, 1868 fights, and senior to the Tribe's future uses. A few of the Objectors claim water rights with May 7, 1868 priority dates. Those Objectors are left in the same position relative to current uses of the Tribal Water Right as they would be in .the absence of the Compact. With or without the Compact, they remain in a state of parity with the Tribe's May 7, 1868 water rights. However, the Compact places those Objectors in a better position relative to future uses of the Tribal Water Right by making their rights senior to such uses. Without the Compact, future uses of the Tribal Water Right would have a May 7, 1868 priority date and would not be subordinate to State Based Rights. In summary, the Objectors did not provide credible evidence of material injury associated with Tribal Water Rights outside the Bighorn Basin or the Ceded Strip, nor did they show material injury arising from other provisions of the Compact. 4. Did the Objectors show that the water rights allocated to the Crow Tribe in the Compact failed to conform to applicable law? The two part test adopted by the Water Court for review of a Compact entitled to a presumption of validity requires an objector to show material injury and a connection between that injury and failure of the Compact to conform to applicable law. The Objectors did not establish material injury arising either fiom recognition of the Tribal Water Right or from the Compact's other provisions. The lack of injury to the Objectors obviates the need to undertake an enquiry into whether the Compact complied with applicable law. Nevertheless, it is worth noting that determining whether the Compact complied with applicable law requires a comparison of the purposes of the Treaty with the water rights recognized in the Compact. Winters, 207 U.S. at 576-77. The Objectors did not make that comparison. They did not introduce a copy of the May 7, 1868 Treaty into evidence, nor did they produce other evidence illuminating the purposes of the Treaty. VIII. SUMMARY OF ANALYSIS The Objectors' PIA analysis of Tribal rights in the Bighorn Basin was similar to that of the Settling Parties, and ultimately served to affinn rather than rebut the legitimacy of the Tribe's Bighorn River Right. The Objectors acknowledged that they were not mjured by Tribal Water Rights in the Bighorn, and that the supply of water in the Bighorn was adequate to satisfy both Tribal and State Based Rights. Although the Objectors described the rights recowzed in the Ceded Strip as arbitrary, they offered no credible analysis showing what those rights should have been, nor did they demonstrate how recognition of rights in the Ceded Strip deviated from the purposes of the Treaty or applicable case law. They conceded that use of Ceded Strip rights for mineral and commercial development was within .the parameters of the Winters doctrine. The Objectors were not able to demonstrate material injury fi-om use of either current or future Tribal rights on the Ceded Strip. Finally, the Objectors asserted that the Compact should not have allocated all the water in smaller basins to the Tribe, but they did not prove the Tribe received more water than necessary to irrigate lands in those basins, nor did they demonstrate injury associated with exercise of current or future Tribal rights in those basins. Even assuming the presence of injury to the Objectors, there was no factual basis for concluding that the rights in the Compact conflicted with the purposes of the May 7, 1868 Treaty, or that recognition of such rights violated applicable federal law. IX. CONCLUSIONS OF LAW 1. Tribal Water Rights in the Bighorn River Basin do not materially injure the Objectors' interests. 2. Tribal Water Rights in the Ceded Strip do not materially injure the Objectors' interests. 3. The Compact did not otherwise cause material injury to the Objectors. 4. The Objectors did not show that the water rights in the Compact failed to conform to applicable law. X. ORDER IT IS ORDERED that the Crow Compact is approved. Russ McElyea Chief Water Judge David W. Harder, Trial Attorney US Department of Justice Environment & Natural Resources Division 999 18" Street, South Terrace, Suite 370 Denver, CO 80202 (303) 844-1372 Nathan A. Espeland, Esq. Espeland Law Office, PLLC Attorney for Crow Tribe PO Box 1470 Columbus, MT 59019 (406) 322-9877 espelandnathan@gmail.com Merrill Godfiey Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, DC 20036-1564 (202)-887-4195 mgodfiey@akingump.com V Jeremiah D. Weiner, Esq. Assistant Attorney General State of Montana 2 15 North Sanders PO Box 201401 Helena, MT 59620-1401 (406) 444-2026 jweiner2@mt.gov John Chaffin US Dept. of the Interior Office of the Solicitor 202 1 4thAvenue North, Suite 112 Billings, MT 59101 W. Scott Green, Attorney John M. Van Atta, Attorney Patten, Peterman, Bekkedahl & Green, PLLC 2817 Second Avenue North, Suite 300 Billings, MT 59101
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