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Conflict comes to roost! The Bureau of Reclamation and the federal Indian trust responsibility.


A recent federal district court decision rejecting irrigators' pleas to keep water flowing to fields in the Klamath Basin of Southwestern Oregon (1) filled the front pages in newspapers statewide. Irrigators asked the court to stop the Bureau of Reclamation (Reclamation) from prohibiting water deliveries to nearly 200,000 acres of farmland as part of the federal Klamath Project. (2) The agency's decision was based on the requirement, under section 7(b)(3) of the federal Endangered Species Act (ESA), (3) to implement "reasonable and prudent alternatives" to minimize impacts to endangered sucker fish and threatened coho salmon. The farmers sought declaratory and injunctive relief, including a request that the court order Reclamation to deliver water to the affected irrigators during the 2001 irrigation season. (4) They claimed that the Reclamation's actions breached federal water service contracts with the irrigators and violated the ESA, the Reclamation Act of 1902, (5) the National Environmental Policy Act (NEPA), (6) and the Administrative Procedure Act (APA). (7) Although the lack of water affected approximately 6000 water users during the summer of 2001, the court ultimately determined that the farmers' needs did not preempt the ESA's requirement to avoid jeopardy to species or the federal government's trust duty to the Klamath Tribes. (8)

This situation has resulted in an outcry against the ESA and tribal interests that have not been seen since the battles over tribal fishing rights that took place over thirty years ago in the Pacific Northwest (9) and the northern spotted owl in the early 1990s. (10) Conservative lawmakers and commentators are embracing the plight of Klamath farmers as the best example to date of the need to dramatically revise the ESA. They recently asked the Interior Secretary to convene the Endangered Species Committee--informally known as the "God Squad"--to reverse the consequences of the court's decision.

Controversy is also nothing new to tribes that have attempted to protect their water rights as necessary for the continued pursuit of traditional practices and develop reservation economic uses. During the last two decades of the twentieth century, over fifty major Indian water rights law suits and settlement agreements transpired in state and federal courts, at administrative hearings, and at negotiating tables across the United States. (11) The majority of these suits and administrative proceedings remain unresolved to this date, and may take two decades or more to reach their conclusion (12)--at major expense to the parties involved. For example, litigation regarding the use of Colorado river water, which began in 1952, for example, continues to this day, and involves seven states and five Indian reservations and their water rights. (13) In addition, settlement agreements between tribes and western states have been known to cost taxpayers. $25 million or more (14) and can take years before results are realized. (15)

These circumstances are amplified by the fact that the judicial climate is not particularly responsive to those attempting to protect treaty rights. Tribes are becoming more reluctant to seek enforcement of what might otherwise be ironclad treaty-reserved water rights because they fear that a court challenge could result in the permanent loss of those rights. (16)

The controversy over water rights partially stems from the practices of Reclamation operating under the Reclamation Act of 1902, which authorizes the agency to use federal funds for the purpose of constructing and maintaining large irrigation projects in western states. (17) In its effort to develop the West for irrigation purposes, the agency often failed to consider, or outright ignored, Indian water rights reserved by treaty, statutes, and executive orders and water flows needed for fish. (18) Not only were these rights repeatedly upheld by federal court decisions of the late nineteenth and early twentieth centuries, (19) they are also the very rights that the federal government, through its trust responsibility, is obligated to protect. (20) In fact, Reclamation's decision to prohibit water deliveries to farmers in the Klamath came only after conservationists, fishermen, and tribes took the agency to court for failing to comply with the ESA. (21) In April 2001, the United States District Court for the Northern District of California enjoined the agency from delivering Klamath Project water to irrigators until it adopted an acceptable plan and complied with the required consultation. (22)

The irony of these situations is that, more and more often, non-Indians are becoming victims of poor management of federal water projects. This is illustrated by expensive, protracted litigation involving tribal water rights and related issues, and by the stunning realization of many that have built homes and businesses dependent on water that is not legally theirs. The implications of this dilemma are huge, and the stakes are high for both tribes and local water users.

Despite this rather bleak picture, alternatives exist that can result in the resolution of potential tribal water right disputes at a much lower cost--in terms of resources, time, and economic hardship--to all involved and, in some cases, may even eliminate the need for tribes to place treaty rights on the line. This Article discusses the effect that Reclamation's mismanagement of its trust responsibility regarding tribal water rights has had on tribal communities, and examines ways in which federal agencies have implemented, and may potentially implement, the federal trust obligation, so as to avoid environmental and human crises, such as in the Klamath Project. Part II of this Article provides background on the federal trust responsibility, and Part III discusses reserved water rights as a basis for that trust duty. Part IV examines Reclamation's management practices and their impact on tribal water resources. Part V looks at the various federal statutes, federal case law, and other mechanisms that may be used by tribes to enforce and encourage agency compliance with this trust responsibility. The Article concludes by examining the future of Reclamation's trust management and calling on the agency to take a proactive approach in recognizing and protecting tribal water interests.


Generally, the trust concept is interpreted as a "guardian and ward" relationship between the federal government and tribes, requiring the government to take certain measures in relation to tribal assets. (23) These actions include everything from ensuring fair exchange of monies and goods to the management of natural resources both on and off reservation lands for the benefit of Indians. (24) This special relationship has been traced to the American Revolution and the U.S. Constitution when, to avoid costly conflicts with tribes, Indian affairs were kept in the hands of the federal government. (25) This trust duty to tribes was also memorialized in the

Northwest Ordinance, which provided:
   The utmost good faith shall always be observed towards the Indians, their
   lands and property shall never be taken from them without their consent;
   and in their property, rights and liberty, they never shall be invaded or
   disturbed, unless in justified and lawful wars authorized by Congress; but
   laws founded in justice and humanity shall from time to time be made, for
   preventing wrongs being done to them, and for preserving peace and
   friendship with them. (26)

The United States Supreme Court, in Cherokee Nations v. Georgia, (27) established the first judicial recognition of this concept, when Chief Justice Marshall characterized Indians as "domestic dependent nations" with a right of occupancy to the land until and unless the federal government extinguished their title. (28) Among the early cases, Worcester v. Georgia (29) provides perhaps the best description of the trust concept:
   This relation [between the Cherokee Nation and the United States] was that
   of a nation claiming and receiving the protection of one more powerful: not
   that of individuals abandoning their national character, and submitting, as
   subjects, to the laws of a master....

   [The Treaty of Hopewell] thus explicitly recognizes the national character
   of the Cherokee, and their right of self-government; thus guaranteeing
   their lands; assuming the duty of protection, and, of course, pledging the
   faith of the United States for that protection; has been frequently
   renewed, and is now in full force. (30)

The trust duty was largely forgotten during the allotment and assimilation era from 1871 to 1928 when parcels of tribal lands were allotted to individual Indians and that land not so allocated was opened for homesteading by non-Indians. (31) The primary effect of this policy was the decrease of tribal land holdings from 138 million acres in 1887 to 48 million acres in 1934 and the "checkerboard" pattern of ownership by tribes, individual Indians and non-Indians, causing serious jurisdiction and management problems. (32)

With the passage of the Indian Reorganization Act of 1934 (IRA), (33) Congress attempted to reverse the destruction of tribal governments by eliminating new allotments and promoting self government structures modeled after the federal system, including constitutions (34) and federally chartered corporations. (35) The IRA era, therefore, assisted the trust relationship between the United States and tribes by providing a bases tribal political influence. (36)

Shortly after the adoption of the IRA, the Supreme Court described the relationship between the United States and the tribes as being in the nature of a "guardian and ward" (37) and one in which the United States "has charged itself with moral obligations of the highest responsibility and trust." (38) From 1953 to 1960, however, Congress adopted a policy of largely terminating its relationship with tribes, which was aggressively pursued until more than one hundred tribes lost their trust status. (39) These terminations also resulted in a massive transfer of reservation lands from trust to private ownership, much of which ultimately ended up in the hands of non-Indians. (40)

Some of the most comprehensive discussions of modern trust doctrine are found in the Supreme Court's decisions in the Mitchell cases. In United States v. Mitchell (Mitchell I), (41) the Quinalt Tribe and some of its members brought a Court of Claims action against the United States for damages resulting from alleged mismanagement of forest resources on the Tribe's reservation under the Tucker Act (42) and the Indian Claims Commission Act. (43) Since these Acts do not provide substantive relief for claims brought under them, (44) the plaintiffs in Mitchell I maintained that the General Allotment Act (45) provided the independent substantive law necessary for recovery of damages. (46) This assertion was based on plaintiffs' claim that the government was bound by fiduciary standards to manage forest resources on allotted lands. Because the Act provided that these lands must be held "in trust" by the federal government for the benefit of the allottees. (47)

While this argument apparently convinced the Court of Claims, the Supreme Court found that, despite the Act's trust language, it created only a "limited trust" relationship and, therefore, reversed. (48) The Court determined the Act did not create an obligation on the government to maauage forest resources on the property, instead management was the responsibility of the allottees. (49) The Court, however, left open the possibility that other statutes could impose a fiduciary duty on the government to manage allotted lands, and remanded the case to the Court of Claims on this issue. (50)

On remand, the Court of Claims held that various timber management statutes and regulations that obligated the executive branch to manage timber resources on allotted lands established a fiduciary duty that supported a substantive claim under the Tucker Act. (51)

On appeal, the Supreme Court, in United States v. Mitchell (Mitchell II), agreed with the Court of Claims that, in this case, the statutes imposed a trust duty on the federal government. (52) The Court found a duty was created by the statutory language that called for a detailed management role by the executive branch. (53) The Court said:
   Where the federal Government takes on or has control or supervision over
   tribal monies or properties, the fiduciary relationship normally exists
   with respect to such monies or properties (unless Congress has provided
   otherwise) even though nothing is said expressly in the authorizing or
   underlying statute (or other fundamental document) about a trust fund, or
   trust or fiduciary connection. (54)

The Court held, in these cases, that "[a]ll of the necessary elements of a common law trust are present: a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber lands and funds)." (55) The Court's holding represents a willingness to look beyond express statutory language to find a duty when it appears from the management scheme that Congress intended the creation of a trust relationship. (56)

While Mitchell II is a partial victory for tribes, it indicates that the courts will not automatically infer a traditional fiduciary duty on the federal government whenever the government's actions affect Indian rights or property. A fiduciary obligation applicable to private trustees between the United States and the Indian tribes, therefore, does not exist when the source of the substantive law recognizes a mere "general" or "bare" trust. (57)

Rather, the relevant statutes and regulations define the contours of the United States's fiduciary responsibilities. (58) At a minimum, the government is subject to standard trust law provisions in carrying out its fiduciary duty, which have been described to include 1) "good faith and utter loyalty to the best interest of the beneficiary" (59) and 2) "exercise [of] such care and skill as a man of ordinary prudence would exercise in dealing with his own property." (60) As discussed in this Article, the limited application of the fiduciary relationship in the case of Indian interests is particularly relevant when, as with management of Reclamation projects, the government owes a duty both to tribes and other interests.


While Reclamation's trust responsibility exists as a separate doctrine based on treaties, statutes, executive orders, and other sources, the extent of trust protection regarding tribal water interests is defined largely by case law, beginning with the Supreme Court's decision in Winters v. United States. (61) In Winters, the Court held that when the federal government sets aside lands for an Indian reservation, it reserves by implication unappropriated, appurtenant water to the extent needed to accomplish the purpose of the reservation. (62) Federal courts have subsequently concluded that when a reservation is created, water and other rights necessary to carry out the purposes of the reservation are also created, whether or not specifically referred to in the treaty or authorizing documents. (63)

This right has been interpreted as reserving water necessary for the "purpose for which a federal reservation was created," (64) "to satisfy the future as well as the present needs of the Indian Reservations," (65) and "so much as, but not more than, is necessary to provide the Indians with a moderate living." (66) Based on these principles, tribes retain federally reserved water rights for numerous purposes, including agriculture, (67) protection of reserved treaty rights, (68) livestock watering, (69) and municipal, domestic, and commercial purposes. (70)

In addition, a treaty "is a recognition of a tribe's aboriginal water right and a confirmation to the tribe of such right to the extent necessary to support its hunting and fishing lifestyle." (71) The Ninth Circuit Court of Appeals, for example, found that the Klamath Tribe had an implied right to water running through its reservation because, at the time the Klamath Indian reservation was established, the federal government and the Tribe intended to reserve a quantity of water flowing through the reservation, not only to support agriculture, but also to maintain the Tribe's treaty right to hunt and fish on reservation lands. (72) Therefore, whether title to land or water is reserved by treaty is ultimately a matter of congressional intent. (73)

Further, the hunting and fishing water right has a priority date of time immemorial. (74) Reserved water rights, however, are limited to the amount of water necessary to maintain the livelihood of the tribe in its present state; the right is not measured in terms of the conditions that existed at the creation of the reservation. (75) Tribal water rights for consumptive uses (agriculture, commercial, municipal, etc.) have been interpreted to retain a priority date beginning at the time the reservation was established. (76)

Finally, the Arizona Supreme Court recently determined that, regardless of conflicting state laws, federal law authorized the government to reserve a right to groundwater to the extent that groundwater may be necessary to accomplish the purposes of a federal reservation. (77) Based on the United States Supreme Court's definition of reserved water rights as "an exception to Congress's deference to state water law," the Arizona Supreme Court held that a state court could not decline to extend the federal reserved water rights doctrine to groundwater if deference to state law would frustrate or impair the federal purpose of the reservation by defeating federal water rights. (78) The court found that, unlike state law, the federal reserved water rights do not differentiate between surface and groundwater; thus, the court recognized them as integral parts of a hydrologic cycle when addressing the diversion of protected waters. (79) While the court concluded that the federal reserve water rights doctrine extended to groundwater, a federal reserved water right to groundwater exists only where other waters are inadequate to accomplish the purpose of a reservation. (80)

Even though issued by a state supreme court, Gila River may be interpreted to establish somewhat of a precedent, since federal courts have thus far paid little attention to the issue of whether the government may reserve groundwater necessary for the purpose of a federal reservation. Not only did the Arizona Supreme Court answer this question in the affirmative, the court emphasized the futility of relying on state law to protect the interest of federal reservations, especially in the context of Indian tribes.


An analysis of the history of Reclamation's approach to protection of tribal water resources may assist the reader in understanding why and how the agency responds in particular circumstances to its trust duty today. The inquiry begins with the application of the federal Reclamation Act, which vested a significant amount of discretionary authority in the Secretary of the Interior to determine the size, nature, location, and timing of projects. (81)

In adopting the Act, there is little doubt that Congress intended to promote agricultural development in the West, (82) which Reclamation embraced as its personal crusade so that it could provide water to farmers attempting to make a living in arid western climates. As of 1997, for example, Reclamation projects existed in all seventeen western states and include 347 storage reservoirs, 254 diversion dams, 268 major pumping plants, over 25,000 miles of canals and pipelines, over 37,000 miles of distribution laterals, and over 17,000 miles of drains. (83)

Congress gained substantial control over project decisions through the appropriations process, which may account for some of the eventual impacts on the tribes because political bargaining ultimately overshadowed the rational need for such projects. (84) As with efforts to terminate tribes in the 1950s, these impacts increased during the assimilation and allotment era of the late 1800s to the early 1900s. (85) Based on the attempts like these to break apart reservations, it is no surprise that throughout the twentieth century, little effort was made by the Department of the Interior or Congress to recognize tribal reserved water rights.

Another substantial factor governing Reclamation's past and present management of Indian water rights is the Reclamation Act's requirement that program administration be consistent with state water rights law. (86) This has had the effect of blurring the distinction between federal and state law by communicating to individual water users that the state prior appropriation doctrine is superior to any claim that the federal government may have and that the Department of the Interior must apply for project water rights from the state just like any other property owner. (87)

Additionally, the evolution of water management under the Reclamation Act has created a conflict of interest for the government that continues to significantly affect tribal interests. (88) Reclamation encouraged appropriation of water and development of water projects by non-Indians at the same time that it was suppose to be preserving the same water for the needs of tribes. (89) Therefore, while Indian water rights are protected on paper by the courts and have been occasionally enforced by the Department of Justice, historically, tribes have had little support from Reclamation or Congress. (90) Without political power to secure appropriations for tribal reclamation programs, tribes have been largely unable to realize the same access to water as non-Indian communities. (91)

Finally, Reclamation's eagerness to placate off-reservation irrigators contributes heavily to the manner in which it carries out its trust obligation. At least one commentator observes that, although Reclamation has had both the authority and responsibility under reclamation law to protect other interests for over ninety years, the noticeable lack of case law in this area is due to the agency's practice of avoiding conflict with water users. (92) The events leading to Kandra v. Norton, (93) the most recent and most controversial case on these issues, arose only after Reclamation authorized irrigation from the Klamath River that were "markedly" inconsistent with scientifically based recommendations for minimum instream flows for fish. These recommendations were developed by an outside consultant hired by the agency and by a technical review team, composed of representatives from the United States Fish and Wildlife Service, Reclamation, Bureau of Indian Affairs, United States Geological Survey, the National Marine Fisheries Service, the Yurook, Hoopa, and Karok Tribes, and California's Department of Fish and Game. (94) Although tribes comprise a large percentage of many rural communities in the West, most of the water in these areas has been allocated to non-Indian users. (95) To make matters worse, tribes are finding that once off-reservation users obtain a federal or state permit to appropriate water, the process is very difficult to reverse, even though the permits may violate tribal water rights or other laws. (96) This is particularly true when additional interests are affected, or where requirements have been imposed, such as those stemming from the listing of threatened and endangered fish species. (97) Tribes have also been unable to obtain the same access to subsidized irrigation projects as were provided to non-reservation irrigators due to recent federal policies prohibiting building new water storage projects. (98) When combined, therefore, with the race to service non-Indian water projects at the expense of tribal needs, such policies have all but completely excluded tribes from enjoying the benefits others receive form federal irrigation projects.

One of the most vivid examples of injury to tribal interests from Reclamation activities is the Salt River Reclamation Project, located in Arizona. The project encompasses the Salt River Pima-Maricopa Indian Reservation, established by Congress on June 14, 1879. The reservation community, however, has yet to be included in the substantial amounts of subsidized water delivered to those located outside the reservation, including the cities of Phoenix and Scottsdale. (99) According to the Tribe, every agricultural district within the project's boundaries has had access to cheap Colorado River water with the sole exception of the Pima-Maricopas. (100) Until the Tribe finally took its case to court, it was charged $130 per acre for farming needs, compared to $40 per acre literally across the street. (101) Tribes throughout the West and others have made similar charges that the federal government, operating as guardian and trustee, bargained away tribal water resources under terms that were often seriously lopsided in favor of non-tribal water users. (102)

In addition to hindering Reclamation's duty to protect tribal interests, past water appropriation practices have created certain expectations in the irrigation community, which continue to be difficult to reverse. (103) Water users have reacted strongly when their expectations have been frustrated by agency enforcement of long-standing, previously unenforced water appropriation laws. (104)


Tribes have employed various legal mechanisms, in an effort to encourage and force the federal government to protect tribal natural resources. In many cases, various statutes and regulatory schemes authorizing federal management of Indian land impose a fiduciary duty, (105) or mandate that the executive branch manage land or resources in the "best interest" or "for the benefit" of the tribe. (106) Courts have recognized the existence of a trust duty in statutes conferring executive authority over tribal leases, (107) in permit decisions by the Army Corps of Engineers, (108) and in management of mineral (109) and timber resources. (110) Statutory schemes applicable to tribal water resources can be categorized under federal or tribal actions that directly or indirectly implement or enforce the trust duty.

A. The Direct Approach

Relative to other resources, the standards regarding the government's trust relationship for management of tribal water resources remains somewhat clouded. (111) The cases in this regard are typically separated into non-claims cases, which usually ask for declaratory or equitable relief, (112) and claims for monetary compensation under the Indian Claims Commission Act. (113) The distinction between these two categories is not always pronounced, and courts will often refer to basic principles that apply to both when sorting out the parties' claims. A summary of the relevant authority regarding the two types of cases is provided below.

1. Non-Claims Cases

Non-claims water resource cases typically involve situations in which a tribe argues that the government breached its duty of loyalty as trustee. These cases can be problematic for Reclamation due to conflicting mandates imposed by statutes on the Department of the Interior, addressing its fiduciary duty to tribes on the one hand, and authority to manage water for irrigation purposes on the other. (114)

One of the earliest cases arose almost thirty years ago in Pyramid Lake Paiute Tribe v. Morton (Pyramid Lake), (115) in which the Pyramid Lake Paiute Tribe brought an action under the federal trust obligation and the APA (116) against the Secretary of the Interior for issuing a regulation that called for the delivery of water from the Truckee River to the Truckee-Carson Irrigation District located in Churchhill County, Nevada. (117) The Tribe claimed that the regulation delivered more water to the District than required by applicable court decrees and statutes, and improperly diverted water that otherwise would flow into Pyramid Lake, which was located on the Tribe's reservation. (118)

According to the Tribe, these actions conflicted with an 1874 Executive Order that reserved Pyramid Lake for the needs of the reservation. (119) In reversing the Secretary's decision, the court noted that while both the Tribe and the irrigation district submitted data regarding the use of water in question, the Secretary did not accept the recommendations of any party and instead made what was characterized by his own staff as a "judgment call" in deciding between the conflicting interests. (120) The court stated that "[t]he record ... is completely devoid of any explanation or indication of the factors or computations which [the Secretary] took into account in arriving at the diversion figure.... The grounds for his action are therefore not disclosed and there is no way of knowing the basis on which his conclusions rested." (121)

The court determined that the Secretary's decision amounted to little more than an "accommodation" that allocated water between the District and the Tribe in a manner that "hopefully everyone could live with for the year ahead." (122) The burden, however, "rested on the Secretary to justify any diversion of water from the Tribe with precision." (123) In a strong statement about the government's trust duty, the court said: "The United States acting through the Secretary of [the] Interior, `has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore, be judged by the most exacting fiduciary standards.'" (124)

The court was particularly concerned with the Secretary's disregard of court decrees and the depletion of tribal water resources due to a failure to exercise his authority to prevent unnecessary waste within the District without legal justification. (125) According to the court, the Secretary's decision violated the standards in the APA and failed to "demonstrate an adequate recognition of his fiduciary duty to the Tribe." (126) The regulation, therefore, was arbitrary, capricious, an abuse of discretion, and not in accordance with law. (127)

More recently, the Ninth Circuit ruled in favor of tribal treaty rights and the ESA over the rights of irrigators as provided by a contract for project water between the irrigators and Reclamation. In Klamath Water Users Protective Association v. Patterson, (128) the court said that, "[b]ecause Reclamation maintains control of the Dam, it has a responsibility to divert the water and resources needed to fulfill the Tribes' rights, rights that take precedence over any alleged rights of the Irrigators." (129)

However, the Supreme Court has limited the application of Pyramid Lake and similar cases by concluding that the federal government's trust duty to tribes does not require it to adhere to strict fiduciary standards and that normal conflict of interest standards do not apply. (130) In Nevada v. United States, the federal government sued local water users on behalf of the Pyramid Lake Indian Reservation, seeking to preserve tribal water lights to the lake that were necessary to maintain a species of cutthroat trout upon which the Tribe depended. (131) The government took the somewhat unconventional position that it had violated its fiduciary duty in its representation of the Tribe in a previous water rights adjudication in which the Pyramid Lake issue was excluded. (132)

The Court found that the federal government had a duty to protect tribal interests as well as to develop arid lands in the western United States: "It is simply unrealistic to suggest that the government may not perform its obligation to represent Indian tribes in litigation when Congress has obliged it to represent other interests as well." (133) In these cases, the government "cannot follow the fastidious standards of a private fiduciary, who would breach his duties to his single beneficiary solely by representing potentially conflicting interests without the beneficiary's consent." (134)

In a legal sense, tribes may take some comfort in the fact that the Court's decision in Nevada may have been due in part to its reluctance to take water away from non-Indian water users who substantially relied on the finality of the original decree. (135) In addition, the news for tribes in the Nevada opinion was not all bad because the Court left open the possibility that a tribe may bring a claim against the United States for breach of the duty of care in representing the tribe's interests in a water suit. (136) Finally, in spite of the conflict created by the Secretary's duty to both the tribes under the trust obligation and to water users under reclamation laws, "the government remains under a firm obligation to represent the Tribe's interest forcefully [and its] failure to do so might well give rise to some claim for breach of duty." (137)

2. Claims Cases

Claims brought by tribes under the Indian Claims Commission Act regarding tribal water resources also contain inherent limitations. The Claims Court, for example, in Gray v. United States, (138) dismissed a lawsuit against the government brought by allottees of the Salt River Reservation in Arizona for failure to deliver water to individual allotments as required by the Winters doctrine. (139) The court distinguished the case from Mitchell II primarily on the ground that, unlike timber, water for irrigation is not a trust corpus in the traditional sense, because it cannot be managed so as to conserve the asset while maximizing income. (140)

The court also found that the provisions of the General Allotment Act, which address allotments of irrigable land, and the regulations governing irrigation, at most dictated that allottees were entitled to delivery of an appropriate share of water, but imposed no duty on the government to manage such water. (141) The allottees' claim that they had to pay more for water than non-Indian users was determined to be outside the ambit of the applicable statutes. (142)

The court in Grey v. United States also rejected the Tribe's claim that the Reclamation Act vested in the United States ownership of any water rights under a federal project, and, instead, viewed the Act as providing for nothing more than United States ownership of tribal water rights that had been appropriated and put to beneficial use under the Winters doctrine. (143) Finally, the court concluded that the Act and related standards did not provide a basis for allocating additional water to individual tribal members because no comprehensive oversight existed authorizing a finding for breach of trust based on the elaborate governmental control theory of Navajo Tribe of Indians v. United States. (144)

Recently, the trust duty in relation to water rights claims by tribes was defined by White Mountain Apache Tribe v. United States. (145) In that case, the Tribe brought a claim for compensation against the Bureau of Indian Affairs (BIA) under the Indian Claims Commission Act, alleging breaches of the government's fiduciary duty with regard to water, rangeland, and forest resources on the reservation. (146) The Tribe's water resources claim focused on its contention that the government restricted the development of tribal irrigation facilities solely for the benefit of off-reservation water users. (147) According to the Tribe, this was accomplished by taking water from the Salt River, which runs through the reservation, and providing more water for downstream users in the Salt River Federal Reclamation Project. (148)

As a preliminary matter, the court determined that although Mitchell did not arise under the Indian Claims Commission Act, that case defined the court's jurisdiction to address the claim in White Mountain Apache. (149) Based on Mitchell, the court first determined that the government does not have a fiduciary duty unless it engages in "comprehensive regulation of Indian resources." (150) In addition, the White Mountain Apache court noted that a tribe may not bring a claim for damages for breach of fiduciary duty for failure to act unless that duty is specified in a treaty, statute, executive order, or regulation that charges BIA with specific duties to act. (151) The issue was "whether a claim for breach of fiduciary duty can be based on the Government's actions once it has undertaken within the exercise of only general powers over Indian affairs to control or supervise Indian property for the benefit of a tribe." (152) Initially, the court found that, even though the government had no statutory or regulatory duty to develop irrigation facilities on-reservation, a failure to protect tribal water resources was actionable. (153) The court based its conclusion on the United States's "`special relationship' to protect the water resources" that arose out of its efforts to establish and enlarge the reservation. (154)

Although the court recognized that Mitchell did not address whether a claim for breach of fiduciary duty can be based on the government's authority to control or supervise Indian property for the benefit of a tribe, other authority exists that indicates a breach in such a situation is actionable. (155) As a result, although the Government has no obligation to develop irrigation projects on the reservation, the failure to encourage an Indian tribe to use its own resources to this end may be actionable if such projects are technically and economically feasible. (156)

In the present case, however, it is unclear whether the government's control over expenditures of Indian funds for irrigation projects was "elaborate." (157) This may explain why the court concluded that the Tribe failed to illustrate a breach of fiduciary duty on the government's part with regard to development of water resources on the reservation. (158)

In another matter involving the Fort Mojave and Colorado River Indian Tribes, (159) the Court of Claims found that the Tribe properly stated a claim for breach of trust when, in the course of legal representation on the Tribe's behalf, the government miscalculated the amount of tribal acreage entitled to water for irrigation. (160) The court initially concluded that it retained jurisdiction by finding that the executive orders creating the reservation, the statute authorizing federal protection of tribal resources, and the government's representation of the tribe considered together established the elaborate control necessary to create a fiduciary relationship. (161) The United States maintained that it could not be liable for representation of Indian tribes under the relevant federal law, which provided that such representation was completely discretionary. (162) The court found, however, that while the statute itself did not require the government to take every case, the government was required to defend the Tribe's water rights based on the established trust. Further, once it decided to do so, the government was required to adequately litigate the plaintiff's claim. (163)

In sum, while the case law seems contradictory as to whether a tribe will be successful in a breach of trust claim regarding water resources, identifiable guidelines occasionally emerge. It appears, for example, that such claims have a greater chance for success if the government actually controls the resources generating the funds. (164) If there is no actual control, tribes may still rely on a comprehensive statutory scheme if one is available. (165) On the other hand, claims that do not arise out of actual mismanagement without sufficient statutory and regulatory criteria prove to be more challenging. (166)

3. The Reclamation Act and Related Statutes

a. The Reclamation Act

The federal Reclamation Act, more than any other federal statute, has been used to reduce rather than protect tribal water resources. This is partly because the Act is intended to provide water for rural communities, but does not contain a specific duty to prevent injury to tribal water resources. (167) The Act has been interpreted to authorize the Secretary to acquire the water rights of tribes and tribal allottees necessary for implementation of Reclamation projects, as long as the Secretary provides adequate compensation for such takings. (168) Such an interpretation raises the question of whether and to what extent the Act limits Reclamation's trust duty to protect tribal water rights.

Based on various Reclamation and Interior policies released in the last decade, the answer to this question, at least on paper, appears to lean in favor of tribes. (169) In July of 1993, for example, Reclamation adopted its Indian Trust Asset Policy, (170) to "protect Indian trust assets [ITAs] from adverse impacts" of agency activities and to "better enabl[e] the Secretary of Interior ... to fulfill his responsibility to Indian tribes." (171) To this end, Reclamation is required to "carry out its activities in a manner which protects trust assets and avoids adverse impacts when possible." (172)

At about the same time Reclamation released the Indian Trust Asset Policy, the Agency adopted procedures to integrate its trust responsibility into the NEPA process. (173) These were preceded by detailed guidelines to agency personnel on interpreting the Indian Trust Asset Policy and NEPA procedures. (174) Such directives establish procedures and guidelines the agency must follow to ensure that the NEPA process adequately addresses impacts of Reclamation management activities on ITAs.

Finally, in 1994, Reclamation adopted a policy to address what has seriously impacted instream flows and tribal water rights, particularly in the Pacific Northwest, typically referred to as "water spreading." (175) The policy recognizes Reclamation's responsibility to protect treaty rights and ITAs from water spreading, but notes that such uses may continue as long as, among other conditions, environmental and ITA impacts are "eliminated or mitigated." (176) These policies are reinforced by the Department of Interior's Secretarial Order that "clarifies the responsibilities of [agencies within Interior] to ensure that the trust resources of ... tribes ... are identified, conserved and protected." (177) The Order requires agencies to reduce impacts on ITAs in planning and operational documents, and to prepare and publish internal procedures to ensure compliance with the Order. (178)

In some cases, Reclamation may not only be obligated to protect tribal water resources, but may be required to view tribes as "partners" in management and implementation of Reclamation projects. This "co-management" concept fosters the protection and enhancement of the tribe's ability to manage and protect their resources based on their status as sovereign nations. (179)

b. Related Acts

In more recent legislation regarding management of federal Reclamation Projects, tribal resources and fishery needs have taken on a more prominent role. Some statutes, for example, require that, in addition to providing water for reclamation contracts, instream uses for fish also must be met. (180) The Reclamation Authorization Act of 1975, for example, reauthorized a number of water storage facilities and other projects, and included provisions for the protection of fish, wildlife, recreation, and other values, in addition to irrigation and flood control. (181)

Such standards, when combined with Reclamation's trust obligation, probably require the agency to protect tribal water resources above and beyond those provisions that apply to non-Indian water users. (182) So far, Reclamation has had difficulty incorporating these concepts into management activities and will often categorize or allocate water to water users in a manner that is contrary to maintaining instream flows, even if substantial factual and legal justification exists to the contrary. (183)

c. State Water Rights Law

Reclamation is also responsible for protecting tribal resources from the exercise of water rights under state law. (184) However, this is complicated by the fact that the ownership and management authority for water affected by reclamation projects is the subject of continuing confusion. (185)

Congress intended that the Reclamation Act not interfere with state management authority over water resources by providing substantial deference to the states within the context of reclamation projects. Section 8 of the Act provides:
   Nothing in this act shall be construed as affecting or intended to affect
   or in any way interfere with the laws of any State or Territory relating to
   the control, appropriation, use or distribution of water used in
   irrigation, or any vested rights acquired thereunder, and the Secretary of
   the Interior, in carrying out the provisions of this Act, shall proceed in
   conformity with such laws, and nothing herein shall in any way affect any
   right of any State or of the Federal Government or of any landowner,
   appropriator, or user of water in, to, or from any interstate stream or the
   waters thereof. (186)

As a result, Reclamation and other water users must obtain state water rights in order to implement a federal reclamation project. (187) The agency's ability to maintain control over the use of such water in the context of state law, however, is based on somewhat conflicting interpretations. (188)

In Nevada v. United States, for example, the Supreme Court rejected Interior's request to re-open a water rights decree based in part on the fact that the individual users of the water had "beneficial interests in the rights confirmed to the Government." (189) This conclusion was based on the Court's finding that Reclamation projects must be designed and constructed in accordance with a pattern as laid out in the Act, (190) which ultimately results in ownership of water that is "appurtenant to the land, the owner of which is the appropriator." (191)

Even when the federal government does not have ownership rights to federal project water it is not relieved of its duties to tribes. (192) In 1989, the Interior Solicitor concluded that neither Nevada, nor any of the other cases discussing ownership of federal reclamation project water, should be "read to restrict the right of the Secretary to enforce Federal reclamation or other applicable law with respect to project water users." (193) It also appears that in certain contexts the United States may hold legal title to project water, which would increase its duties and authority in such cases. (194)

The Supreme Court has defined the Secretary's authority under the Reclamation Act as being unrestricted by state standards or directives on the operation of projects or delivery of project water. (195) Ivanhoe Irrigation District v. McCracken (196) is significant to tribes and natural resources matters because it involved federal authority to limit the acreage to which federal water could be applied. (197) According to the Court, Interior could condition receipt of project water based on the expenditure of public funds:
   [B]eyond challenge is the power of the Federal Government to impose
   reasonable conditions on the use of federal funds, federal property, and
   federal privileges.... [T]he Federal Government may establish and impose
   reasonable conditions relevant to federal interest in the project and to
   the over-all objectives thereof. Conversely, a State cannot compel use of
   federal property on terms other than those prescribed or authorized by
   Congress. Article VI of the Constitution, of course, forbids state
   encroachment on the supremacy of federal legislative action. (198)

The Court in Arizona v. California followed this reasoning:
   The argument that [section] 8 of the Reclamation Act requires the United
   States in the delivery of water to follow priorities laid down by state law
   has already been disposed of by this court in Ivanhoe Irr. Dist. v.
   McCracken, and reaffirmed in City of Fresno v. California.... Since
   [section] 8 of the Reclamation Act did not subject the Secretary to state
   law in disposing of water in [Ivanhoe], we cannot, consistently with
   Ivahnoe, hold that the Secretary must be bound by state law in disposing of
   water under the Project Act. (199)

The Court later refined its interpretation of federal authority to mean that the state may impose conditions in a permit for Reclamation project water "which are not inconsistent with [c]ongressional provisions authorizing the project in question." (200) This does not mean, however, that state water law would override specific congressional directives in the context of water distribution. (201)

The Ninth Circuit further refined the test for federal authority over Reclamation projects by providing that "a state limitation or condition on the federal management or control of a federally financed water project is valid unless it clashes with express or clearly implied [c]ongressional intent or works at cross-purposes with an important federal interest served by the [c]ongressional scheme." (202) The court clearly sought a compromise position regarding state and federal disputes over the management of water rights and emphasized that the two sovereigns need to attempt to reconcile differences before resorting to litigation. (203) According to the court, a preference exists for "negotiation" and "mutual accommodation and agreement," rather than litigation in interstate water cases. (204)

Therefore, although not often exercised, the United States retains the authority in federal reclamation projects to protect tribal interests in water resources. (205) Such authority includes changing the terms and conditions of water project contracts with irrigators for the purpose of increasing district payment requirements, reallocating water to meet instream flow needs, conditioning water deliveries from reclamation projects on mandatory payments or reporting requirements, and withholding water from reclamation projects for failure to meet federal requirements. (206)

Prior to the events that led to Kandra for example, the Department of the Interior had used section 10 of the 1982 Reclamation Act to assert its authority to deliver water for tribal and environmental needs in the management of the Klamath Reclamation Project. (207) The agency has also diverted water from Central Valley Project irrigators for fish and wildlife needs in accordance with the ESA and the Central Valley Project Improvement Act, both of which mandate the protection of fish and wildlife. (208)

B. The Indirect Approach

Tribal water resources may be protected in the context of federal laws other than those that establish a fiduciary duty either expressly or through a complex managerial scheme. These laws include treaty rights and the following federal environmental statutes.

1. Treaty Rights

Not only are tribal treaties that created Indian reservations and reserved other property rights for tribes a powerful tool for protecting tribal resources directly, they also provide one of the most basic standards for enforcement of the trust doctrine. (209) Courts regularly recognize the federal government's duty to protect tribal land bases and accompanying resources reserved by treaty.

In Northern Cheyenne Tribe v. Hodel, (210) for example, the court said "[p]rinciples of trust responsibility [apply to] protect the rights of Indian tribes.... The United States entered into treaties and agreements [which] express the intention of the United States to protect the tribes and their property." (211) The trust duty, therefore, has been applied to protect various natural resource interests including tribal wildlife and water activities. (212)

In addition, Indian water rights often trigger the application of private trust law. (213) The United States Court of Claims, in fact, states that in such cases,
   the title to [the tribe's] water rights constitutes the trust property, or
   the res, which the government, as trustee, has a duty to preserve....
   [W]here a trust exists with respect to a defined res, the trustee is
   charged with taking appropriate steps to preserve that res. Therefore, the
   United States was required under the trust arrangement to defend [the
   tribe's] water rights. (214)

Northwest Sea Farms Inc. v. United States Army Corps of Engineers (215) presents one of the best examples of the enforcement of tribal treaty rights through the government's trust responsibility. The Federal District Court for the Western District of Washington upheld a decision by the Corps to deny a permit to a fish farm operator because it would have violated the agency's fiduciary duty to the Tribe by conflicting with tribal treaty rights. (216) The operator requested a permit under the Rivers and Harbor Act (217) to construct a number of net pens in the Rosario Strait of Puget Sound, Washington. (218) The Corps denied the application for the required permit after finding that the project would conflict with the Lummi Nation's fishing rights under the Treaty of Point Elliot. (219)

In upholding the Corps's decision, the district court found that "[t]he Supreme Court has recognized `the undisputed existence of a general trust relationship between the United States and the Indian people.' ... This obligation has been interpreted to impose a fiduciary duty owed in conducting `any Federal government action' which relates to Indian tribes." (220) This duty includes the "responsibility to ensure that Indian treaty rights are given full effect." (221) According to the court, "the Corps owes a fiduciary duty to ensure that the Lummi Nation's treaty rights are not abrogated or impinged upon absent an act of Congress." (222)

Consistent with the Mitchell II decision, the court rejected Northwest Sea Farm's claim that the Corps's decision violated its own regulations because treaty rights are not listed as relevant to a public interest determination. Such an argument, the court stated, "ignores the duties imposed by the trust relationship owed by the Corps to the Lummi Nation. It is this fiduciary duty rather than any express regulatory provision which mandates that the Corps take treaty rights into consideration." (223)

2. The Endangered Species Act

Although implementation of the federal ESA and the protection of tribal trust assets would seem to be consistent in most circumstances, application of the ESA is often contrary to the protection of tribal fish and wildlife needs. (224) Enforcement of the ESA also results in negative impacts on tribal water rights claims, even though such rights are typically senior to other rights that may have contributed to the need for listing of the affected species in the first place. (225) Nevertheless, a duty to protect tribal trust assets in relation to instream flows can be found within the context of the federal ESA.

a. Federal Case Law

While federal courts recognize a trust duty, protection of fish and wildlife resources has not been extended beyond the standards and limitations provided in the ESA itself. (226) In Pyramid Lake Paiute Tribe of Indians v. United States Department of the Navy, (227) the Tribe filed a claim against the Navy under the ESA, NEPA, and the federal government's fiduciary duty to the Tribe, seeking to enjoin the Navy's outlease program at Fallon Naval Air Force Base in Nevada. (228) In order to limit certain environmental conditions which reduced visibility on runways and caused damage to aircraft, the Navy created "buffer" zones around runways by growing irrigated vegetation. (229) The vegetation in the zones were maintained by leasing approximately 2200 acres of land with water rights to local farmers that the Navy obtained under the Newlands Reclamation Project. (230)

The Project diverts water from the Truckee River into Lahontan Reservoir, which means that the water does not flow into Pyramid Lake, which is located on the Pyramid Lake Indian Reservation. (231) This has significantly reduced the size of the Lake which serves as the exclusive habitat of the endangered cui-ui fishery. (232) The Tribe claimed that the Navy's program threatened the continued viability of the cui-ui by contributing to a significant decrease in the water level of Pyramid Lake and that an injunction against the program was necessary to protect the cui-ui and the Tribe's interests. (233)

The court found that "[w]hile most cases holding the government to [its fiduciary] duty have involved Indian property rights, the government's trustee obligations apparently are not limited to property." (234) The duty extends "to any federal government action" and requires the Secretary to "preserve and protect the Pyramid Lake fishery." (235)

The court also recognized that the Secretary had a fiduciary duty beyond the legal conditions of the ESA to protect the Tribe's interest in the Pyramid Lake fishery, but declined to go beyond the confines of the statute in defining this duty:
   Obviously, a `no jeopardy' finding does not always preclude a finding that
   an agency has breached its fiduciary duty to the Tribe. Here, however, the
   two go hand-in-hand. As discussed above with respect to the Navy's
   affirmative duty to conserve under section 7(a)(1) of the Act, the Navy has
   taken and is taking steps to conserve water on behalf of the cui-ui and
   consequently for the Tribe and its fishery.... We hold that the Navy's
   reliance on the FWS biological `no jeopardy' opinions was not arbitrary and
   capricious under section 7(a)(2) of the Act. (236)

According to tribes and their supporters, however, the assumption that enforcement of federal standards for protecting endangered species automatically satisfies the government's trust obligation confuses tribal needs with the interests of society in general--the very thing the trust obligation was designed to prevent. (237) This is based on the proposition that, in addition to inherent implementation problems, the statute is limited to preventing the extinction of "threatened" or "endangered" species and does not require the preservation of harvestable populations, even when a tribe depends on the species for subsistence needs. (238)

At least in the context of Indian reserved water rights, there are indications that protection of tribal trust assets may be enforced outside of ESA statutory limitations. First, as recognized by the court in Pyramid Lake Paiute Tribe, once a fishery agency issues a "no jeopardy" opinion, this does necessarily relieve the government from its fiduciary duty to the tribe. (239) In some cases, in fact, courts find a trust responsibility owed to tribes that goes beyond statutory and regulatory protections that apply to the general public. (240)

The Ninth Circuit recently defined the government's duty more specifically in this context in Morongo Band of Mission Indians v. Federal Aviation Administration, (241) which held that courts need only go beyond statutory provisions to protect tribes when a specific identifiable duty exists: "[A]lthough the United States does owe a general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency's compliance with general regulations and statutes not specifically aimed at protecting tribes." (242) In the case of Reclamation's obligation to protect tribal water, fish, and wildlife resources in the context of the ESA, the agency may be more likely to be required to go beyond general statutory terms if the trust duty is well defined.

In spite of the sometimes strained interpretation by federal agencies, the courts often find that ESA standards and tribal interests are compatible. Reclamation's obligation to protect tribal trust resources has assisted courts in making the sometimes difficult decisions characteristic of ESA issues. (243) In Kandra, for example, in rejecting an appeal by local water users to prevent Reclamation from prohibiting water deliveries to nearly 170,000 acres of irrigated farmland, the court determined that farmers' needs did not preempt the requirement of the ESA "to avoid jeopardy to species, `whatever the cost.'" (244)

The court's decision was based, in part, on the federal trust responsibility owed to the Klamath and Yurok Tribes who intervened as defendants and who hold fishing and water treaty rights in the Klamath River Basin. (245) According to the court, "Reclamation has an obligation to protect tribal trust resources such as the sucker fish and salmon." (246) More importantly, in response to the Plaintiffs claim that the government's actions violated its contracts with water users, the court said, "[h]owever, as recognized by this court and the Ninth Circuit, plaintiffs contract rights to irrigation water are subservient to ESA and tribal trust requirements." (247)

b. Interior Policy

A step towards formal recognition of the Department of the Interior's trust duty is its Report of the Working Group on the Endangered Species Act and Indian Water Rights, which proposes several measures to ensure that tribal water rights are not unfairly hampered by application of the ESA. (248) While the Working Group does not address instream water rights for the purpose of protecting fishing rights and related activities, it outlines future Interior policies designed to prevent the current disproportionate burden on tribal consumptive use water rights in the context of ESA implementation. (249) In general, the report recommends that tribal water rights receive priority over often more junior non-Indian water rights before ESA limitations are applied. (250)

The Working Group Report represents a significant step toward recognition that water appropriations and development projects sponsored by the federal government in the West have been largely implemented in disregard of Indian rights. (251) The proposal recommends, for example, that ESA section 7 consultation, (252) establishing environmental baselines, address the potential future exercise of tribal water rights. It also authorizes agencies to "reinitiate" ESA consultation on projects when new developments occur that will potentially impact tribal water rights. (253) In addition, the Working Group recommends that Interior anticipate and account for the future exercise of tribal water rights in the context of protecting listed species and critical habitat in the planning stages of consultation. (254)

While the Interior's recommendations are generally helpful to tribes, some fundamental revisions may be necessary in order for the Department to better satisfy its trust duty. The effectiveness of the recommendations, for example, are limited by the fact that, while many of the substantive directives apply to all agencies within the Department of the Interior, others apply solely to the United States Fish and Wildlife Service (FWS). (255)

That directives apply only to the activities of FWS, and not to Reclamation, severely limits their effectiveness, because Reclamation is--and will likely continue to be--the acting agency for a significant portion of the water development projects currently affecting tribal water rights. (256) In addition, Reclamation has historically satisfied the needs of non-Indian water users at the expense of Indian tribes and endangered species. (257) As a result, without more definite language requiring Reclamation and other Interior agencies to comply with specific criteria for the prevention of impacts to tribal water rights, it is likely that little change will take place. (258)

Finally, the Report's emphasis on tribal water development and management practices to ensure consistency with the ESA is troubling. (259) While such recommendations may represent a sincere effort to assist tribes in avoiding a potential "jeopardy" opinion or other adverse decision, in actual practice the recommendations may allow the government to continue to rely on tribes for shouldering the bulk of responsibility in resolving conflicts between water users and listed species.

The Report and the Recommendations should acknowledge that most of the species requiring protection under the ESA have reached this condition not because of the actions of Indian tribes, but due to the combined efforts of federal water development agencies and off-reservation water users. Agencies within the Department of the Interior should be encouraged to engage in and support water development projects that restore river conditions and listed species, rather than those which harm fish, wildlife, and tribal water rights. This includes restricting or prohibiting current and future federal water projects or management actions that currently or potentially result in damage to listed species, especially when such actions may result in a direct or indirect conflict with tribal water rights. (260)

3. The National Environmental Policy Act

NEPA has unique implications for tribal trust assets in relation to Reclamation projects, due to potential conflicts between the agency's policies and tribal water rights. In many cases, prior to authorizing the use of water related to federal reclamation projects, the agency is required to conduct a full NEPA analysis, which may include implementation of adequate mitigation measures in order to compensate for impacts to tribal interests. (261)

The trust duty's higher standard of protection potentially enhances Reclamation's obligation under NEPA in a number of ways. First, federal courts may be more inclined to grant relief to a tribe where they can do so on both NEPA and trust grounds. (262) In addition, while NEPA applies only to "major federal actions," (263) the trust obligation applies to any federal action potentially impacting tribal interests. (264) Therefore, when tribal water rights are affected the trust duty requires the Secretary to "ensure to the extent of his power" that all available water is used to satisfy the tribe's interest. (265)

Moreover, public involvement under the trust duty, unlike NEPA, (266) is not restricted by specific regulatory time frames, and typically results in a more frequent and continuous exchange between government and tribal interests. (267) Finally, because NEPA is a procedural statute and not substantive, courts can provide little in the way of remedies as long as the agency meets the minimum standards under the procedural process. (268) On the other hand, damages or restorative equitable relief is available for actions taken in violation of the trust obligation. (269)

As a result, there are a variety of opportunities to combine the trust duty and NEPA to encourage Reclamation to protect tribal water resources. A common NEPA issue regarding Reclamation projects, for example, is the application of project water to irrigation or other purposes that may reduce instream flows needed by fish upon which a tribe depends for subsistence and other uses. (270) In many such cases, because the irrigator, as the requesting party, must pay for the NEPA analysis, the agency may be under a lot of pressure not to conduct a full Environmental Impact Statement (EIS) even though the project may involve significant impacts. (271) Combining the trust doctrine with NEPA, therefore, may afford the tribe greater protection.

It is clear in NEPA cases, however, that Reclamation may not proceed without drafting an EIS unless it modifies the proposal "prior to implementation by adding specific mitigation measures which completely compensate for any possible adverse environmental impacts stemming from the original proposal." (272) The obligation to mitigate in the event an EIS will not be produced, therefore, should be all the more relevant when Indian trust assets may be affected by the failure to fully analyze the environmental consequences of the proposed action.

Further, due to the fact that the bulk of projects under the Reclamation Act were completed or approved long before the adoption of NEPA, (273) in many cases Reclamation may be tempted to reject NEPA's relevance. This conclusion is often based on claims of the agency and water users that NEPA applies to agency action only if that action has not yet taken place, whether or not it was legitimate to begin with. (274) Such claims, however, are contrary to federal agencies' continuing responsibility to ensure that NEPA standards are satisfied. (275) Further, such an approach often leaves Reclamation in the awkward position of attempting to ensure that ongoing actions are consistent with federal law and its duty to protect tribal interests. (276)

4. The Clean Water Act

The Clean Water Act (CWA) (277) was adopted to "restore and maintain the chemical, physical and biological integrity of the Nation's waters," and established a national goal that includes the protection of "the public health or welfare" and enhancing "the quality of water." (278) To this end, the Act calls for the development of water quality standards, (279) establishment of a list of water quality-impaired water bodies, (280) and development of total maximum daily loads (TMDLs) for those water bodies on the water quality-impaired water body list. (281)

Due to the effects that water quantity can have on water quality, (282) enforcement of CWA standards can have direct impacts on tribal resources. Unfortunately, as is the case with other environmental standards, the CWA is often used against tribal interests rather than as a means of enhancing them. (283) However, this is inconsistent with the federal government's responsibility to protect habitat necessary for survival of fishery resources upon which tribes depend. (284) The Federal Court for the Western District of Washington first shed light on this duty in United States v. Washington. (285) That case addressed the scope of the language in the treaties of various tribes that reserved the right to "take fish in common with" non-Indians "at all usual and accustomed places." (286) Part of the Washington opinion addressed the issue of whether the tribes' fishing right included the right to have treaty fish protected from environmental degradation. (287) In answering the question in the affirmative, the court noted that the "conclusion that the treaty-secured fishing right incorporates an environmental right is consonant with the implied-reservation-of-water doctrine that is often employed in the construction of Indian treaties." (288) The court noted that this was the reason that dam construction and other activities preventing water from flowing to the reservation were typically enjoined. (289) Thus, the court found "so long as water rights are necessary to exercise expressly-reserved rights, they arise by implication regardless of the equities that may favor competing users." (290) In order to fulfill the purposes of the treaty, it is necessary to maintain the tribes' access to natural resources by recognizing an implied environmental right that extends beyond the statutory limitations and standards of federal and state environmental laws. (291)

Although the Ninth Circuit ultimately vacated Washington on procedural grounds, (292) other federal courts recognize a similar duty to protect tribal reserved rights from federal activity that "would adversely affect" habitat needs upon which tribal water and fishing rights depend. (293) Although the issue has yet to be directly addressed by the judiciary, there is substantial precedent for the conclusion that federal entities such as Reclamation may not take action that would degrade water quality to the extent that it prevents exercise of legitimate tribal fishing rights. (294)

In United States v. Adair, (295) the Ninth Circuit concluded that tribes are entitled to adequate water resources when fishing and hunting rights that are dependent upon such water are a "primary purpose" for which the reservation was created. (296) Although Adair focused on water quantity and did not directly discuss water quality, several components of the opinion can be interpreted to apply to the necessity of adequate water quality to meet tribal needs. According to the court, for example, "the scope of the implied right is circumscribed by the necessity that calls for its creation. The doctrine `reserves only that amount of water necessary to fulfill the purpose of the reservation, no more.'" (297)

It is difficult to argue that this finding would not also apply to the need for adequate water quality, which is often equally as important as quantity in relation to the needs of fish and wildlife species. (298) The opinion, in fact, noted that "`[w]hile the purpose for which the federal government reserves other types of lands may be strictly construed ... the purposes of Indian reservations are necessarily entitled to broader interpretation if the goal of Indian self-sufficiency is to be attained.'" (299) Further, "where interpretation of an Indian treaty is involved, not only the intent of the Government, but also the intent of the tribe must be discerned." (300)

Unlike the common law doctrine of prior appropriation, Adair noted that the Tribe was entitled to prevent other appropriators from depleting the streams below a "protected level" in any areas where its hunting and fishing rights apply. (301) The court concluded that such rights include a federally created water right that is above and beyond any provided by standard state water rights law. (302)


As vividly illustrated by the crisis in the Klamath Basin of Oregon this year, conflicts regarding tribal water rights and water needs by off-reservation communities are increasing. (303) Restoring and maintaining stability in places like the Klamath, and preventing costly, time consuming, and sometimes devastating conflicts over tribal water rights, requires addressing problems that seem to persist in each of these potentially volatile situations. In many cases, these problems, which include over-appropriation of water for the benefit of off-reservation users and ecosystem degradation, originate from the vast array of dams, canals, drains, pumps, and other facilities from the Bureau of Reclamation projects covering the West. (304)

Reclamation as an institution is in need of reform not only to renounce its long tradition of promoting irrigation at the expense of other interests, but to improve understanding of its commitment to protect the interests of tribes which typically surrendered millions of acres of lands for the right to continue practices they have depended upon for thousands of years. (305) Kandra is just one example of the damage to tribal interests and the pain and frustration of local communities that often result from such unnecessary management strategies. (306)

At the same time, as the agency is confronted with more and more environmental regulation, the temptation to avoid decisive measures increases, particularly if the outcome may be controversial. This typically results in deference to others for decision making, inevitably delaying important resource protection actions, and is particularly inappropriate when Reclamation retains considerable authority over decisions regarding management of federal project water. (307)

Reclamation, however, is not entirely to blame for this situation, which is also derived from outdated federal mandates and the actions of other federal agencies that have failed to bring consistency to their missions and their obligations to protect tribal interests. (308) These situations arise largely from a reluctance to satisfy standards for protecting environmental and tribal values if such actions would inconvenience the status quo. (309) Further, the tendency of local and national political leadership to seek highly visible, but not necessarily practical, solutions has served as a significant distraction to federal agencies that are supposed to be concentrating on their duties to tribes. (310)

Finally, the courts themselves are playing an increasingly significant role in tribal water resources and traditional uses, as illustrated by the Klamath Basin irrigation district's recent lawsuit against the government for up to $1 billion in damages, as a result of the water cutoffs. (311) That action, which is inspired by the decision in Tulare Lake (312) and is the largest water rights claim filed against the federal government, could force the United States to agree to provide farmers the water they demand at the expense of environmental protection and tribal interests.

The real question then is whether Reclamation, other federal agencies, and the political leadership will focus on reducing demand, ecosystem restoration, and meeting obligations to tribes, or whether they will instead focus on the "quick fix," which involves amending relevant environmental protection laws, followed by "an acceleration in the abrogation of commitments to Indian peoples." (313) If we have learned anything from the Klamath and numerous similar disputes involving tribal water rights across the West, such solutions will ultimately lead to water that is so thoroughly ill-managed and degraded that it will not be long before it is unsuitable for any use, including agriculture.

Despite past practices and institutional origins, Reclamation is showing signs of increased sensitivity to these issues and to tribal water needs. The first indication of these changes occurred in the early 1990s when the agency announced that it would begin viewing western water bodies more as ecosystems than as opportunities to build more dams. (314) That reform is due primarily to the growing political power of tribes and the consistent vigilance from environment organizations. (315) Clearly, it will be critical for tribes to continue supporting and pressuring the federal government to take a proactive approach toward recognition and protection of tribal water interests. Although these changes may be unpalatable to those who closely adhere to Reclamation's original mission, the alternative is much too painful.

(1) Kandra v. Norton, 145 F. Supp. 2d 1192, 1211 (D. Or. 2001).

(2) Id. at 1195-96.

(3) Endangered Species Act of 1973, 16 U.S.C. [section] 1536 (1994).

(4) Kandra, 145 F. Supp. 2d at 1195-96, 1198.

(5) Act of June 17, 1902, ch. 1093, 32 Stat. 388 (1902) (codified at 43 U.S.C. [subsection] 391-600e (1994)).

(6) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (1994 & Supp. III 1997).

(7) Administrative Procedure Act, 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). Kandra, 145 F. Supp. 2d at 1196.

(8) Kendra, 145 F. Supp 2d at 1211.

(9) See, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, modified, 444 U.S. 816 (1979).

(10) See, e.g., Virginia S. Albrecht & Thomas C. Jackson, Battle Heats Up as Congress Begins Review of Endangered Species Act, NAT'L L.J., May 18, 1992 at S1 (describing controversy surrounding and impact of the listing of the northern spotted owl).


(12) BURTON, supra note 11, at 2; Hinchman, supra note 11, at 246-47.

(13) Arizona v. California, 530 U.S. 392, 397-401 (2000).

(14) Hinchman, supra note 11, at 247 (discussing the Fort Hall and Wind River cases).

(15) In the Yakima River Basin, for example, the Yakima Indian Nation waited 20 years for the adjudication of its treaty fishing rights to reach a conclusion, at a cost of $50 million. In the meantime, Yakima River salmon continued to decline, prompting Congress to authorize an additional $250 million to restore the fishery. See, e.g., Umatilla Basin Project Completion Act: Introduction of S. 1986 on Senate Floor, 104th Cong. (1996) (statement of Sen. Mark Hatfield (R-Or.)). In addition, many tribes ultimately end up in settlement before their rights are actually adjudicated, which can take up to two years before a federal negotiating team is even established. Hinchman, supra note 11, at 246-47.

(16) For example, in commenting on a determination by the Wind River Indian Reservation Tribes not to appeal an adverse decision of the Wyoming Supreme Court on water rights, Charles Wilkinson, professor of Water Law at the University of Colorado, stated that the Tribes' case is "`very compelling ... [and] supported by a century of Western Water Law. But this U.S. Supreme Court, with the recent appointments, is, in its own way, probably the most radical court we've had since the late nineteenth century--in terms of overturning and moving away from existing, settled principles.'" Charles Wilkinson, quoted in Katherine Collins, Water: Fear of Supreme Court Leads Tribes to Accept an Adverse Decision, HIGH COUNTRY NEWS, October 19, 1992, reprinted in MILLER, supra note 11, at 252.

(17) 43 U.S.C. [section] 391 (1994).

(18) Hinchman, supra note 11, at 246; BURTON, supra note 11, at 1-2.

(19) The first significant recognition of tribal reserved water rights was Winters v. United States, 207 U.S. 564 (1908), where the Supreme Court affirmed that, when the federal government established the reservation, it intended to reserve that amount of water necessary to fulfill the purpose for which the reservation was established.

(20) BURTON, supra note 11, at 2; Hinchman, supra note 11, at 246 ("`The U.S. government allowed a lot of reclamation projects and development on river systems where they knew they had a legal obligation to protect water for Indians....'" (statement of Chris Kenney, Bureau of Indian Affairs)).

(21) Pac. Coast Fed'n of Fishermen's Ass'ns v. United States Bureau of Reclamation, 138 F. Supp. 2d 1228, 1238, 1251 (N.D. Cal. 2001).

(22) Id. at 1251.

(23) Mary C. Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1502 [hereinafter Trust].

(24) Id. at 1499.

(25) Id. at 1498-99 (describing the early relationship between Congress and the Indian tribes). "Between 1790 and 1834, Congress passed several Trade and Intercourse Acts prohibiting non-Indians from entering Indian territories, regulating non-Indian trade with tribes, and denying non-Indians and local governments the right to purchase Indian lands." Id. See also the Indian Commerce Clause of the U.S. Constitution, which authorizes Congress to "regulate commerce with foreign nations, and among the several states and with the Indian Tribes." U.S. CONST. art. I, [section] 8, cl. 3 (emphasis added).

(26) Wood, supra note 23, at 1498-99 (citing Northwest Ordinance of 1787, art. III, reprinted in 32 JOURNALS OF THE CONTINENTAL CONGRESS 340-41 (Roscoe R. Hill ed., 1936) (reenacted by Act of Aug. 7, 1789, ch. 8, 1 Stat. 50)).

(27) 30 U.S. 1 (1831).

(28) Id. at 17.

(29) 31 U.S. 515 (1832).

(30) Id. at 555-56.

(31) See, e.g., The General Allotment Act of 1887, sec. 119 as added June 21, 1906, c. 3504, 34 Stat. 327 (Feb. 8, 1887).

(32) See American Indian Lawyer Training Program, INDIAN TRIBES AS SOVEREIGN GOVERNMENTS 8-9 (1988) [hereinafter SOVEREIGN GOVERNMENTS].

(33) 25 U.S.C. [subsection] 461-479 (1994).

(34) Id. [section] 476.

(35) Id. [section] 477.

(36) See SOVEREIGN GOVERNMENTS, supra note 32, at 11.

(37) Klamath and Moadoc Tribes of Indians v. United States, 296 U.S. 244, 254 (1935).

(38) Seminole Nation v. United States, 316 U.S. 286, 297 (1942).

(39) BURTON, supra note 11, at 28.

(40) Terminated tribes, however, were not completely cut off from federal assistance. Regarding the management of land and resources, the federal courts concluded in the 1970s that two tribes retained their treaty rights in spite of their "terminated" status. Menominee Tribe of Indians v. United States, 391 U.S. 404, 406 (1968); Kimball v. Callahan (Callahan I), 493 F.2d 564, 566 (9th Cir. 1974); Kimball v. Callahan (Callahan II), 590 F.2d 768, 775 (9th Cir. 1979), cert. denied, 444 U.S. 826 (1979). In addition, Congress restored federal recognition of a number of tribes during the 1970s. BURTON, supra note 11, at 30.

(41) 445 U.S. 535 (1980).

(42) 28 U.S.C. [section] 1491 (1994).

(43) Mitchell I, 445 U.S. at 538-39.

(44) Id. at 540 n.2.

(45) Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (1887) (codified at 25 U.S.C. [section] 334-358 (1994)).

(46) Mitchell I, 445 U.S. at 537.

(47) Id. at 541. Such independent sources of law typically include the U,S. Constitution, statutes, federal regulations, executive orders, or treaties. The Indian Claims Commission Act, for example, provides:
   The United States Court of Federal Claims shall have jurisdiction of any
   claim against the United States accruing after August 13, 1946, in favor of
   any tribe, band, or other identifiable group of American Indians residing
   within the territorial limits of the United States or Alaska whenever such
   claim is one arising under the Constitution, laws or treaties of the United
   States, or Executive orders of the President, or is one which otherwise
   would be cognizable in the Court of Federal Claims if the claimant were not
   an Indian tribe, band or group.

28 U.S.C. [section] 1505 (1994) (emphasis added). See also 28 U.S.C. [section] 1491 (1994) (giving the Court of Federal Claims jurisdiction to render judgments and fashion remedies for claims based upon "the Constitution, or any Act of Congress or any regulation, or ... any ... contract"); United States v. Mitchell (Mitchell II), 463 U.S. 206, 216 (1983) ("[T]he Act makes no distinction between claims founded upon contracts and claims founded upon other specified sources of law.").

(48) Mitchell I, 445 U.S. at 542.

(49) Id. at 542-43.

(50) Id. at 546.

(51) Mitchell v. United States, 664 F.2d 265, 269 (Ct. Cl. 1981) (relying on 25 U.S.C. [section] 318(a) (1994) (rights of way), amended by 25 U.S.C. [subsection] 323-325 (1994); 25 U.S.C. [subsection] 406-407 (1994) (timber sales); 25 U.S.C. [section] 466 (1994) (regulations and sustained yield)).

(52) Mitchell II, 463 U.S. at 224. The Court's conclusion was influenced by the fact that the Secretary of the Interior played a "pervasive role" in Indian timber management, which began in 1910 when Congress gave the Secretary authority over the sale of timber from Indian lands. Id. at 219. In addition, under the Indian Reorganization Act of 1934, 25 U.S.C. [subsection] 461-479 (1994), Congress directed that the Secretary manage Indian forest lands in accordance with the principle of "sustained yield." Id. at 221 (quoting 25 U.S.C. [section] 466 (1994)). Congress specifically directed the Secretary to consider "`the needs and best interest of the Indian owner and his heirs'" in administering timber sales on allotted lands. Id. at 222 (quoting 25 U.S.C. [section] 406(a) (1994)). Finally, other statutes provide mandates pertaining to collection of proceeds from sales of Indian timber. See id. at 222 n.23 (listing acts that pertain to collecting "reasonable fees" from Indian timber sales).

(53) Id. at 225. The Court observed that the Department of the Interior "`exercises literally daily supervision over the harvesting and management of tribal timber' [and that] virtually every stage of the process is under federal control." Id. at 222 (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 147 (1980)).

(54) Id. (quoting Navajo Tribe of Indians v. United States, 224 Ct. Cl. 171, 183 (1980)).

(55) Id.

(56) See, e.g., Trust I, supra note 23, at 1519 ("Mitchell indicates strong deference to congressional intent, yet a concomitant willingness to look beyond the express words of Congress."); Kimberly T. Ellwanger, Recent Development: Money Damages for Breach of the Federal Indian Trust Relationship After Mitchell II, 59 WASH. L. REV. 675, 676-81 (1984) (fiduciary duty established when statutory scheme "delineate[s] management duties").

(57) See E. Band of Cherokee Indians v. United States, 16 Cl. Ct. 75, 78 (1988) (holding that breach of a general trust relationship in Indian education does not establish a `claim for money'); Mont. Bank of Circle v. United States, 7 Cl. Ct. 601, 613-14 (1985) ("When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations applicable to private trustees are not imposed on the United States.").

(58) Mitchell II, 463 U.S. at 222; Cobell v. Norton, 240 F.3d 1081, 1098, 1100 (D.C. Cir. 2001) ("It is no doubt true that the government's fiduciary responsibilities necessarily depend on the substantive laws creating those obligations."). This responsibility, however, is not "solely defined" by the congressional action in question. Cobell, 240 F.3d at 1099.


(60) United States v. Mason, 412 U.S. 391, 398 (1973) (citing 2 A. SCOTT, TRUSTS 1408 (3d ed. 1976)).

(61) 207 U.S. 564 (1908).

(62) Id. at 576-77.

(63) Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-13 (1968); United States v. Winans, 198 U.S. 371,381 (1905) (stating a treaty is "not a grant of rights to the Indians, but a grant from them--a reservation of those not granted").

(64) United States v. New Mexico, 438 U.S. 696, 702 (1978).

(65) Arizona v. California, 373 U.S. 546, 600 (1963), decree entered, 376 U.S. 340 (1964), supp. decree entered, 439 U.S. 419 (1979). This right has been determined to mean the amount of water needed to serve the "practicably irrigable acreage on the reservations," which is defined as the quantity of land that modern technology can make usable and not by the techniques available when the reservation was established. CHARLES WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 71 (1987).

(66) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 686 (1979).

(67) Winters, 207 U.S. at 577; Arizona v. California, 373 U.S. at 600; In re Rights to Use Water in Big Horn River (In re Big Horn River, 753 P.2d 76, 94 (Wyo. 1988), affd by an equally divided court sub. norm., Wyoming v. United States, 492 U.S. 406 (1989).

(68) E.g., United States v. Adair, 478 F. Supp. 336, 345 (D. Or. 1979), aff'd, 723 F.2d 1394 (9th Cir. 1983); Colville Confederated Tribes v. Walton, 460 F. Supp. 1320, 1330 (E.D. Wash. 1978), affd, 647 F.2d 42 (9th Cir. 1986); United States v. Anderson, 736 F.2d 1358, 1362 (9th Cir. 1984); Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032, 1035 (9th Cir. 1985); Muckleshoot Indian Tribe v. Trans-Canada Enters., Ltd., 713 F.2d 455, 458 (9th Cir. 1983); Joint Bd. of Control of the Flathead Mission & Jocko Irrigation Dist. v. United States, 832 F.2d 1127, 1131 (9th Cir. 1987); Colville Confederated Tribes v. Walton, 752 F.2d 397, 402 (9th Cir. 1985).

(69) In Re Big Horn River, 753 P.2d at 99.

(70) Arizona v. California, 373 U.S. at 566; United States v. Powers, 305 U.S. 527, 533 (1939); United States v. Walker River Irrigation Dist., 104 F.2d 334, 340 (9th Cir. 1939); United States ex rel. Ray v. Hibner, 27 F.2d 909, 910-11 (D. Idaho 1928); Conrad Investment Co. v. United States, 161 F. 829, 831-32 (9th Cir. 1908).

(71) Adair, 723 F.2d at 1414.

(72) Id. at 1407.

(73) Idaho v. United States, 121 S. Ct. 2135, 2142 (2001). In addressing congressional intent, the courts consider whether Congress was on notice that the reservation included the right in question and whether the purpose of the reservation would have been compromised if the right was not included. Id. at 2143. The needs and intentions of the tribe in treaty negotiations are also considered as evidence of the relative negotiating positions of the parties. Id. at 2144. In Adair, for example, the court based its conclusion, in part, on the fact that it seemed unlikely that the Tribe would have knowingly relinquished such rights when it signed the treaty "in light of the highly significant role that hunting and trapping played (and continue to play) in the lives of the Klamaths." Adair, 723 F.2d at 1409. "Nor is it possible that the Tribe would have understood such a reservation of land to include a relinquishment of its rights to use the water as it had always used it on the land it had reserved as a permanent home." Id. at 1409 (quoting Kimball v. Callahan, 493 F.3d 564, 566 (9th Cir. 1974)).

(74) Adair, 723 F.2d at 1413-14.

(75) Id. at 1414-15.

(76) Arizona v. California, 373 U.S. 546, 600 (1963); Winters v. United States, 207 U.S. 564, 577 (1908); see also WILKINSON, supra note 65, at 70.

(77) In re General Adjudication of All Rights to Use Water in Gila River System and Source (Gila River), 989 P.2d 739, 750 (1999), cert. denied, 530 U.S. 1250 (2000).

(78) Id. at 747.

(79) Id. at 746-47. A key issue in the Gila River court's reluctance to apply Arizona law over federal water law with regard to groundwater appropriation was the fact that users consumed far more groundwater under state standards than nature could replenish. The court noted, in fact, that under the state's system of "equal rights to pump groundwater as they can put to reasonable use.... some Indian reservations have been entirely `dewatered' by off-reservation pumping." Id. at 748. The state system, therefore, "in contrast to a reserved right, would not protect a federal reservation from a total future depletion of its underlying aquifer by off-reservation pumpers." Id.

(80) Id. The court declined, however, to enjoin the user's withdrawal of groundwater until the Tribe's rights were adjudicated because it could not determine whether, and how much, water the Tribes were entitled to until the adjudication took place. According to the court, determining "the purpose of a federal water rights reservation and [determining] the waters necessary to accomplish that purpose are inevitably fact-intensive inquiries that must be made on a reservation-by-reservation basis." Id.

(81) BURTON, supra note 11, at 22.

(82) See, e.g., Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 292 (1957), disavowed in part on other grounds by California v. United States, 438 U.S. 645 (1978). Agricultural development was encouraged "by limiting the quantity of land in a single ownership to which [Reclamation] project water might be supplied." Id; see also Peterson v. United States Dep't of the Interior, 899 F.2d 799, 803 (9th Cir. 1990) (stating the Act was motivated by a desire to "create family sized farms in areas irrigated by federal projects ..., to secure the wide distribution of the substantial subsidy involved in reclamation projects" and other factors).

(83) Reed Benson, Whose Water is it? Private Rights and Public Authority over Reclamation Project Water, 16 VA. ENVTL. L.J. 363, 366 (1997).

(84) BURTON, supra note 11, at 22.

(85) Id.; see also discussion supra Part II.

(86) Act of June 17, 1902 [section] 8, 32 Stat. 390 (codified at 43 U.S.C. [section] 393 (1994)); BURTON, supra note 11, at 22.

(87) BURTON, supra note 11, at 22-23.

(88) See generally Benson, supra note 83 (discussing controversies regarding the United States's conflicting duties to protect tribal interests and allocate project water to irrigators).

(89) BURTON, supra note 11, at 23.

(90) Id.

(91) Id.

(92) See Benson, supra note 83, at 409. Benson notes that "[f]or most of its history and in most of the West, the Bureau has avoided confrontation and controversy by siding with irrigators, even when that meant ignoring clear requirements of federal law." Id.
   In the 1970s, for example, individuals and groups who did not receive
   project water sued the Bureau for failing to enforce basic,
   long-established provisions of reclamation law. The government fought these
   suits and raised a wide variety of arguments, creating the impression that
   the Bureau would say anything to justify doing nothing.... Even in the
   1990s, the Bureau remains unwilling to exercise its authority if such
   action would upset irrigators.

Id. at 409 n.269 (citations omitted).

(93) 145 F. Supp. 2d 1192 (D. Or. 2001).

(94) Pac. Coast Fed'n of Fisherman's Ass'ns v. United States Bureau of Reclamation, 138 F. Supp. 2d 1228, 1232-35 (N.D. Cal. 2001).


(96) Id.

(97) Id.

(98) See David H. Getches, The Metamorphosis of Western Water Policy: Have Federal Laws and Local Decisions Eclipsed the States' Role, 20 STAN. ENVTL. L.J. 1, 3-5, 10-18 (2000).

(99) James Bishop, Tribes Win Back Stolen Water, HIGH COUNTRY NEWS, June 15, 1992, reprinted in MILLER, supra note 11, at 265.

(100) Id.

(101) Id. Other tribes impacted by the Salt River project have characterized management of the project as fraudulent manipulation of reservation water resources for the benefit of off-reservation water users. See, e.g., United States v. White Mountain Apache Tribe, 784 F.2d 917, 919 (9th Cir. 1986) (alleging the government "had committed fraud on the Tribe by grossly understating the Tribe's legitimate water claim"); White Mountain Apache Tribe v. United States, 784 F.2d 921, 924 (9th Cir. 1986) (alleging the government grossly mismanaged the Tribe's water resources).

(102) See, e.g., Pyramid Lake Piaute Tribe of Indians v. Morton, 354 F. Supp. 252, 255 (D.D.C. 1972), modified on other grounds, 360 F. Supp. 669 (D.D.C. 1973), rev'd in part on other grounds, 499 F.2d 1095 (D.C. Cir. 1974). The D.C. Appellate Court agreed with the Tribe's claim that a regulation promulgated by the Department of the Interior delivered more water to a local irrigation district than required by applicable court decrees and statutes. Id.; BURTON, supra note 11, at 2, 23, 47; JOHN A. FOLK-WILLIAMS, WHAT INDIAN WATER MEANS TO THE WEST 7-8 (1982).

(103) See, e.g., Benson, supra note 83, at 409-10. Benson refers to this problem as a "tradition of inertia" that has resulted in limited judicial definition of Reclamation's "responsibilities, rights and remedies ... and the Bureau has enacted few regulations to clarify them. Moreover, because irrigators have grown accustomed to a very deferential Bureau of Reclamation, it will be politically difficult for the federal government suddenly to exercise power it has rarely used." Id.

(104) See, e.g., Mike Lee, Bureau's Stricter Enforcement of Water Law Alarms Farmers, TRI-CITY HERALD, Jan. 7, 2001, (arguing that Reclamation's practice of ignoring a loophole in the 19-year-old Reclamation Reform Act of 1982, which limits how much land farmers in the West can irrigate without paying penalties, resulted in numerous complaints from agricultural interests once the agency started attempting enforcement). After Kandra, which addressed the first formal decision regarding water management Reclamation ever made in favor of the Klamath and other tribes, farmers and their supporters vilified the ESA, including the submission of a petition to the Secretary of the Interior to convene a panel of seven cabinet level members (commonly referred to as the "God Squad") to exempt the Klamath irrigators from the Act. Eric Bailey, Farmers Seek U.S. Help to Regain Water Diverted to Protect Fish, L.A. TIMES, July 4, 2001, at A1. The situation in the Klamath became so intense that some local residents resorted to acts of civil disobedience and destruction of federal property in an attempt to obtain access to water reserved for fish needs. Associated Press, Farmers Make Second Water Raid, SEATTLE TIMES, July 5, 2001, at B3.

(105) Trust I, supra note 83, at 1524. Examples include 25 U.S.C. [subsection] 396-397, 406-407, 413, 415 (1994), which address mineral leasing, operations and limits of oil and gas leasing, grazing and mining leases, timber sales, collection of fees to cover administrative expenses, leasing of restricted tribal lands for specific purposes, timber management, and forest land management. Regulations addressing the Bureau of Indian Affairs's authority to manage Indian lands may also be interpreted as establishing a fiduciary duty. See, e.g., 25 C.F.R. [subsection] 162-63, 166, 169, 200, 211 (2001) (governing leasing, forest management, grazing, rights of way, coal leases, and mining leases).

(106) See, e.g., 25 U.S.C. [section] 382, 399, 403, 496 (1994) (governing irrigation projects, collecting mining royalties, lease of trust lands, and sale of timber on trust lands); see also Indian Mineral Development Act of 1982, 25 U.S.C. [section] 2103 (1994) (requiring Secretary to approve any mineral agreement submitted for review); National Indian Forest Resources Management Act, 25 U.S.C. [subsection] 3101-3120 (1994) (providing for increased federal protection of Indian forest lands and stating "the United States has a trust responsibility towards [such] lands").

(107) Pawnee v. United States, 830 F.2d 187, 189-91 (Fed. Cir. 1987), cert denied, 486 U.S. 1032 (1988); see also Gila River Pima-Maricopa Indian Cmty. v. United States, 877 F.2d 961, 962-64 (Fed. Cir. 1989) (claiming government breached its trust duty in leasing Indian lands).

(108) Northwest Sea Farms Inc. v. United States Army Corps of Eng'rs, 931 F. Supp. 1515, 1520 (W.D. Wash. 1996); Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1514 (W.D. Wash. 1988).

(109) Jicarilla Apache Tribe v. Supron Energy Corp., 782 F.2d 855, 857 (10th Cir. 1986) (en banc) (holding state mineral leasing statute created fiduciary relationship that supported tribal claim for equitable relief), modified on other grounds, 793 F.2d 1171 (10th Cir.); see also Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 794-96 (9th Cir. 1986) (identifying trust duty arising from Mineral Leasing Act of 1938, 25 U.S.C. [subsection] 396(a)-396(g) (1988)); Enos v. United States, 672 F. Supp. 1391, 1393-94 (D. Wyo. 1987) (finding that the United States waived sovereign immunity pursuant to the Tucker Act because of its fiduciary obligations regarding management of oil and gas leases on allotted Indian lands).

(110) Short v. United States, 719 F.2d 1133, 1134-35 (Fed. Cir. 1983) (holding statute granting government authority over Hoopa Valley Tribe's timber resources created trust obligation); White Mountain Apache Tribe v. United States, 11 Cl. Ct. 614, 668-69 (1987) (holding management scheme similar to that in Mitchell II created fiduciary relationship), affd, 5 F.3d 1506 (Fed. Cir. 1993).

(111) See, e.g., Trust I, supra note 23, at 1524-25 n.247 (stating that "the fiduciary duties in managing tribal water resources ... are less clear than in management of other resources"); Nell Jessup Newton, Indian Claims in the Courts of the Conqueror, 41 AM. U. L. REV. 753, 787, 807-10 (1992). According to Newton, water rights are best analyzed as falling within the "limited trust" concept because "[t]here is no scheme imposing comprehensive duties on the Secretary of the Interior to manage tribal water." Id. at 806-07. In addition, Newton maintains that, because tribal water rights in the West owe their existence to judicial decrees, "the Government does not manage tribal water resources on a day-to-day basis." Id. at 807.

(112) See generally Newton, supra note 111, at 769-84 (discussing the changing structure of the Indian claims process, including analysis of pre-1946 claims, claims in the Indian Claims Commission, claims based on the Tucker Act and special jurisdictional acts, and claims in the Federal Circuit).

(113) 25 U.S.C. [section] 70a (1994).

(114) Newton, supra note 111, at 807 (discussing Winters v. United States, 207 U.S. 564 (1908); Nevada v. United States, 463 U.S. 110 (1983)).

(115) 345 F. Supp. 252 (D.D.C. 1972).

(116) Id. at 254. Under 5 U.S.C. [section] 706, the Tribe maintained the Secretary's actions were arbitrary, capricious, and an abuse of discretion, and sought a declaration of rights and affirmative injunctive relief on the grounds that the Secretary unlawfully withheld and unreasonably delayed the required actions. Id.

(117) Id.

(118) Id.

(119) By executive order of 1874, President Grant affirmed certain directives of the Department of the Interior, which were issued in 1859, providing that the lake, the land surrounding the lake, and the immediate valley of the Truckee River which feeds into the lake, had been reserved for the Tribe and set aside for the Public domain. United States v. Walker River Irrigation Dist., 104 F.2d 334, 338 (9th Cir. 1939). Federal courts have consistently recognized the Pyramid Lake area as the Tribe's aboriginal home. See United States v. Sturgeon, 27 F. Cas. 1357, No. 16-413 (D. Nev. 1879) (finding non-Indian defendants were unlawfully fishing within the limits of the Pyramid Lake Indian reservation).

(120) Pyramid Lake, 354 F. Supp. at 256.

(121) Id.

(122) Id.

(123) Id.

(124) Id. (citing Seminole Nation v. United States, 316 U.S. 286, 297 (1942)).

(125) Id. at 257.

(126) Id.

(127) Id. As a consequence, the court required a different basis for determining the amount of water to be diverted at Derby Dam. Id.

(128) 191 F.3d 1115 (9th Cir. 1999), amended by 203 F.3d 1175 (9th Cir. 2000).

(129) Id. at 1123.

(130) Nevada v. United States, 463 U.S. 110, 128 (1983); see also White Mountain Apache Tribe v. United States, 784 F.2d 921, 925 (9th Cir. 1986) (applying Nevada and saying that the government can represent conflicting interests).

(131) Nevada, 463 U.S. at 113-14.

(132) Id. at 119.

(133) Id. at 128.

(134) Id.

(135) Id. at 139-42.

(136) The Court cited Northern Paiute Tribe v. United States, 30 Ind. Cl. Comm'n 210 (1973), which was ultimately settled prior to trial and addressed governmental breach of the duty to provide sufficient water for fishing. Nevada, 463 U.S. at 135 n. 14.

(137) White Mountain Apache Tribe v. United States, 784 F.2d 921, 925 (9th Cir. 1986) (citing Nevada, 463 U.S. at 142). Some commentators suggest that the ability of tribes to pursue claims for breach of fiduciary duty under Nevada will be limited following Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001). The Court in Klamath Water Users determined that under the Freedom of Information Act (FOIA), 5 U.S.C. [section] 552 (2000), confidential communications between the United States and Indian tribes about tribal trust water resources are subject to disclosure, even if such actions would abrogate the federal and tribal trust relationship. See, e.g., TRACY LABIN, NATIVE AMERICAN RIGHTS FUND, WHERE HAVE ETHICS AND THE TRUST GONE FOR INDIANS? THE WATER RIGHTS EXAMPLE 123 (on file with author). According to Labin, under such a holding, tribes may not even be able to bring breach of trust claims against the United States if they are gravely hurt by the disclosure of confidential tribal documents--unlike the situation in Nevada, where such claims were apparently not precluded. Id. at 133.
   [I]f... the United States must disclose documents, no matter what harm is
   caused to tribes, it may essentially be relieving the United States of its
   duty to behave as a trustee at all. It may be argued that since Congress
   has authorized the United States to disclose documents, no matter how badly
   the tribes are hurt by that disclosure, there will be no remedy for the


(138) 935 F.2d 281 (Fed. Cir. 1991) (unpublished table decision), affg 21 Cl. Ct. 285 (1990).

(139) Grey v. United States, 21 Cl. Ct. 285, 300 (1990), aff'd by 935 F.2d 281 (Fed. Cir. 1991), cert. denied, 502 U.S. 1057 (1992).

(140) Id. at 293.

(141) Id.; 25 C.F.R. [section] 171 (2000). The court determined there was no evidence that Congress intended the Secretary of the Interior to act as a trustee in relation to irrigation for each allotment. Grey, 21 Cl. Ct. at 294.

(142) This difference apparently resulted from the fact that prices for the allottees were based on several statutes that authorized Interior to charge them for their share of water delivery system construction costs, while the non-Indian users' water was partially subsidized by the water project itself. The plaintiffs, however, submitted no evidence that the government engaged in water pricing, and the court rejected the claim that they had to pay higher prices for water than individuals on nonreservation land. Grey, 21 Cl. Ct. at 295 n.11; see also Newton, supra note 111, at 809 n.338 (discussing how the allottees' claim in Grey was outside the scope of the applicable statutes).

(143) Grey, 21 Cl. Ct. at 295-96.

(144) 624 F.2d 981, 987 (Ct. Cl. 1980); Grey, 21 Ct. Cl. at 294. Later in the opinion, the court found that, although the Salt River Pima-Maricopa Indian Community Water Rights Settlement Act of 1988, Pub. L. No. 100-512, [section] 10, 102 Stat. 2549, established Claims Court jurisdiction in causes of action arising from claims extinguished by the Act based on a substantive right created by other statutes or regulations, the Act did not provide for the filing of new claims arising prior to the Act's implementation date. Grey, at 21 Cl. Ct. at 296.

(145) 11 Cl. Ct. 614 (1987).

(146) Id. at 618.

(147) Id. at 624.

(148) Id.

(149) Id. at 619-20.

(150) Id. at 619.

(151) Id. at 620; see also Shoshone Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) (neither the statute requiring Attorney General to represent tribes, the treaty giving off-reservation hunting rights, nor the attorney-client relationship required Attorney General to assert tribe's claim to off-reservation water rights under Snake River basin water rights adjudication).

(152) White Mountain Apache Tribe, 11 Cl. Ct. at 620.

(153) Id.

(154) Id.

(155) Id. at 619; see also Navajo Tribe of Indians v. United States, 624 F.2d 981, 987 (Ct. Cl. 1980) (holding that a fiduciary duty arises when the government supervises and institutes a grazing permit system on-reservation for the purpose of managing reservation rangelands).

(156) White Mountain Apache Tribe, 11 Ct. Cl. at 628.

(157) Id. at 620.

(158) The court made several findings in this regard including the following: 1) the government was under no obligation to fund construction of irrigation projects on the reservation without congressional appropriations; 2) the government did not inhibit the development of the irrigation phase of the power and irrigation project so as to be liable to the Tribe under the Indian Claims Commission Act, because the technological feasibility of the Tribe's irrigation project was merely speculative; 3) such funds benefitted the Tribe since they were spent primarily for the power needs of the Indian agency, schools, and hospital, which served Indians; 4) even if BIA did fail to understand the Tribe's water rights, a multiplicity of factors could have affected the development of irrigation on the reservation, including the destruction of irrigation structures due to heavy rains and storms, limited feasibility of expanding irrigation with existing technology, shortage of Indian funds to support projects and application of the available funds primarily applied to maintaining old structures; 5) while the Tribe did illustrate that a series of incidents occurred involving federal actions on the reservation (which, at least in theory, if not in practice, would have the effect of maximizing flow of water to benefit off-reservation users), such incidences did not justify a finding of continuing wrong under the Indian Claims Commission Act; and 6) the Tribe failed to demonstrate that the government prevented the Tribe from irrigating acreage or that the Tribe had the financial resources to irrigate additional acreage. Id. at 638-47.

(159) Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417 (1991).

(160) Id. at 425-27.

(161) Id. at 425-26.

(162) Id. at 426; see also 25 U.S.C. [section] 175 (1994) (stating that "[i]n all States and Territories where there are reservations or allotted Indians, the United States attorney shall represent them in all suits at law and equity").

(163) Fort Mojave Indian Tribe, 23 Cl. Ct. at 426-27. The court ultimately concluded, however, that the Tribe was not entitled to summary judgement on the merits of its claim because the evidence was not conclusive enough to make a final determination on the breach of trust issue. Id. at 432. The court found that, "[i]n this case, there is no demonstration that the United States, as a fiduciary, was involved in an actual conflict of interest" nor any "indication that the Government's representation of the Tribes' interests with respect to the amount of practicably irrigable acreage was legally inadequate." Id. In fact, the court inferred that some of the evidence the government presented during the original matter suggested that the government acted prudently, that the quantity of practicably irrigable land was only one portion of the representation, and that the defendant actually obtained significant victories for the Tribes, including a broad definition of its Winters rights. Id. at 431-32. The ultimate conclusion in both White Mountain Apache and Fort Mojave Indian Tribe was somewhat remarkable in light of the fact that, in both cases, federal officials in charge of overseeing the Tribes' water rights, at the time of the alleged conduct, admitted that negligent acts occurred. See, e.g., White Mountain Apache Tribe, 11 Cl. Ct. at 638-39; Fort Mojave Indian Tribe, 23 Cl. Ct. at 422.

(164) See Newton, supra note 111, at 810. Newton compared Grey, in which the court flatly stated that Winters water rights did not represent a trust corpus, with Fort Mojave Indian Tribe, where the Court insisted that Winters rights can be a trust corpus. Fort Mojave, 23 Cl. Ct. at 426. The distinction between the cases seems to lie in both the source of the trust and the duty breached. Newton, supra note 111, at 810. In Grey, for example, the statutory scheme was somewhat vague; the court found that the government did not assume broad control over delivery of water to allottees who, according to the court, in fact had control over their own water resources, and the allottees were seeking to impose an affirmative duty on the government. Id. In Fort Mojave, on the other hand, the issue was a simple determination of whether the government's actions harmed tribal water rights. Id.

(165) Newton, supra note 111, at 810.

(166) Id.

(167) See 43 U.S.C. [section] 391 (1994). While this section makes no reference to tribal water rights or resources; specifically, it establishes a "reclamation fund" for the contravention and maintenance of irrigation projects.

(168) Henkel v. United States, 237 U.S. 43, 50-51 (1915), aff'g 196 F. 345, 116 C.C.A. 165 (1912); California v. Rank, 293 F.2d 340, 354 (9th Cir. 1961); see also Dugan v. Rank, 372 U.S. 609, 619 (1963) (holding that the United States has eminent domain power to acquire water rights of riparian owners and overlaying owners to river).


(170) INDIAN TRUST ASSET POLICY, supra note 169.

(171) Id. at 1.

(172) Id.



(175) UNITED STATES BUREAU OF RECLAMATION, UNITED STATES DEP'T OF THE INTERIOR, DRAFT WATER SPREADING POLICY [subsection] 1-5 (1994) (on file with author) [hereinafter WATER SPREADING POLICY]. Water spreading is defined as "the unauthorized use of Federally developed project facilities or water supplies ... on lands not approved by Reclamation for such use." Id. [section] 1. Such practices typically arise when irrigators apply water to lands outside of their federal district boundaries without first securing a federal reclamation contract that incorporates necessary federal standards. Id. For a complete discussion of water spreading and its economic and environmental impacts, see Reed D. Benson & Kimberly J. Priestley, Making A Wrong Thing Right: Ending the "Spread" of Reclamation Project Water, 9 J. ENVTL. L. & LITIG. 89 (1994). The Confederated Tribes of the Umatilla located in northeast Oregon, for example, have stated that Reclamation projects have already devastated the Tribes' economy, culture, and religion because the Tribes' treaty rights have not been protected. Press Release, The Confederated Tribes of the Umatilla Indian Reservation Water Spreading Policy (undated) (on file with author). According to the Tribe, however, water spreading have resulted in additional and illegal withdrawals of about 34,000 acre feet of water from the Umatilla River on an annual basis and upon which the tribes have treaty fishing rights. Id.

(176) WATER SPREADING POLICY, supra note 175, [subsection] 3, 5(c).

(177) Bruce Babbit, Secretarial Order No. 3175, U.S. Dep't of the Interior, Departmental Responsibilities for Indian Trust Resources [section] 1 (Nov. 8, 1993), available at

(178) Id. [subsection] 3-4.

(179) For a complete discussion of this concept, see Ed Goodman, Protecting Habitat for Off Reservation Tribal Hunting and Fishing Rights: Tribal Co-Management as a Reserved Right, 30 ENVTL. L. 279, 289-97 (2000). Goodman argues that federal courts have begun to recognize this tribal sovereignty aspect of the trust obligation by noting that, in addition to the substantive obligations owed to tribes, federal agencies have a "procedural" duty that includes "the requirement that the [United States] incorporate the tribes, as governments, into the land and resource decision-making process." Id. at 340.

(180) E.g., Reclamation Authorization Act of 1975, Pub. L. No. 94-228, Title I [section] 101, 90 Stat. 205 (1976) (not codified); id. Title III [section] 301, 90 Stat. 207 (1976) (not codified); id. Title IV [section] 401, 90 Stat. 208 (1976) (not codified); see also Umatilla Basin Project Act, Pub. L. No. 100-557 [section] 202, 102 Stat. 2791, 2791-92 (1988) (providing that the "principal work of the project shall consist of ... lands, water rights, or interests therein acquired for the benefit of fishery resources"); id. [section] 213, 102 Stat. 2791, 2795 (requiring Reclamation to review "current operations of the Umatilla Project, for the purpose of identifying opportunities to further mitigate losses to anadromous fishery resources," including allocation of reservoir storage space).

(181) Reclamation Authorization Act of 1975, 90 Stat. at 205, 207, 208.

(182) Benson, supra note 83, at 426.

(183) In practice, for example, the agency may re-categorize "residual" water--water that would normally be reserved for fish--as "contract" water, resulting in the use of the water in a way that is contrary to maintaining instream flows. Id. at 416-20.

(184) Id. at 374-80.

(185) Id.

(186) 43 U.S.C. [section] 383 (1994).

(187) Benson, supra note 83, at 372-73.

(188) See id. at 372-74. When water fights are not in the Bureau's name, it is presumed that certain powers are lost. However, the Solicitor has also stated that nothing should "restrict the right of the Secretary to enforce Federal reclamation ... law." Id.

(189) Nevada v. United States, 463 U.S. 110, 124 (1983).

(190) Section 8 of the Act provides that "the right to the use of the water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." 43 U.S.C. [section] 372 (1994).

(191) The Court said:
   Although the government diverted, stored and distributed the water, the
   contention of petitioner that thereby ownership of the water or
   water-rights became vested in the United States is not well founded.
   Appropriation was made not for the use of the Government, but under the
   Reclamation Act, for the use of the land owners; and by the terms of the
   law and of the contract already referred to, the water rights became the
   property of the land owners, wholly distinct from the property right of the
   government in the irrigation works.... The government was and remained
   simply a carrier and distributor of the water ..., with the right to
   receive the sums stipulated in the contracts as reimbursement for the cost
   of construction and annual charges for operation and maintenance of the

   The property right in the water right is separate and distinct from the
   property right in the reservoirs, ditches or canals.... The water right is
   acquired by perfecting an appropriation, i.e., by an actual diversion
   followed by an application within a reasonable time of the water to a
   beneficial use.

Nevada, 463 U.S. at 125 (citations omitted). See also Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 318 (2001). The court found that the signing of contracts for state and federal water projects gave plaintiffs a "property interest" in the water. This was based on the court's determination that the right to use the water transferred to the District, first by permit to the state, and then to the plaintiffs by contract. Id.

(192) See Nevada, 463 U.S. at 142-43 (discussing how the legal relationship between tribes and the government derives from the plenary control of Congress, which recognizes no limitations on duty).

(193) Filings of Claims for Water Rights in General Stream Adjudications, 97 Interior Dec. 21, 27 n.5 (1989) [hereinafter Stream Adjudications Opinion].

(194) These duties include the requirement that, while the government is not obligated "to make filings or present evidence of beneficial use on behalf of individual water users," it is obligated to "at least do what is necessary to preserve, maintain, protect, or have confirmed project water rights that are held in the name of the United States." Id. at 28, 32.

(195) City of Fresno v. California, 372 U.S. 627, 630-31 (1963) (denying city preferential rights to contract for project water, and hinging receipt of contract on judgment of the Secretary of the Interior that irrigation will not be adversely affected); Arizona v. California, 373 U.S. 546, 587 (1963) (authorizing Secretary of the Interior to construct, operate, and maintain dams and other works, by choosing between recognized methods of apportionment or devising methods of his own during shortages).

(196) 357 U.S. 275 (1958).

(197) Id. at 277-78.

(198) Id. at 295 (citations omitted).

(199) Arizona v. California, 373 U.S. at 586-87.

(200) California v. United States, 438 U.S. 645, 674 (1978).

(201) Id. at 672 n.25.

(202) United States v. Cal., State Water Resources Control Bd., 694 F.2d 1171, 1177 (9th Cir. 1982).

(203) Id. at 1178.

(204) Id.

(205) Arizona v. California, 373 U.S. 546, 595-98 (1962), amended by 383 U.S. 268 (1966), order amended by 466 U.S. 144 (1984).

(206) Benson, supra note 83, at 413-15.

(207) Id. at 369 (citing Memorandum from David Nawi & Lynn Peterson, Solicitors, Dep't of the Interior, Pacific Southwest Region, to various Interior Department officials (Jan. 9, 1997)). The application of environmental regulations in a manner that reduces water provided to water users under Reclamation contracts has become an area to watch. The United States Court of Federal Claims in Northern California, for example, recently held that the United States impacted a local water district's property without just compensation in violation of the Takings Clause of the Fifth Amendment of the U.S. Constitution. Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 318-24 (2001). In general, the court reasoned that a property right in water is a usufructory right, for which any limitation on use is analogous to a complete occupation that deprives the water right holder of all incidents of ownership. Id. at 319 (quoting Eddy v. Simpson, 3 Cal. 249, 252-53 (1853)). But see Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210-14 (9th Cir. 2000) (holding reclamation was not liable for breach of contract for failure to deliver water to water users as a consequence of complying with the ESA).

(208) Benson, supra note 83, at 421 (citing Barcellos & Wolfsen, Inc. v. Westland Water Dist., 849 F. Supp. 717, 721 (E.D. Cal. 1993), aff'd sub nom. O'Neill v. United States, 50 F.3d 677 (9th Cir.)); Reclamation Projects Authorization Act of 1992, Pub. L. No. 102-575 [section] 3406(b)(2), 106 Stat. 4600, 4715 (1992) (requiring the Secretary to "dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title").

(209) See, e.g., Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 UTAH L. REV. 109, 134-38 (suggesting that the trust doctrine should preserve reservations) (hereinafter Trust II] (citing Reid Chambers & Monro E. Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 STAN. L. REV. 1061, 1080 (1974)).

(210) 12 Indian L. Rep. 3065 (D. Mont. 1985) (mem.), remedy modified, No. 82-116-BLG (D. Mont. 1985) (mem.), modified remedy rev'd, 851 F.2d 1152 (9th Cir. 1988).

(211) Trust II, supra note 209, at 136 (quoting 12 Indian L. Rep. at 3070) (emphasis added).

(212) See discussion infra Section V.B.2-4.

(213) See Trust II, supra note 209, at 136 n. 101 ("The trustee is under a duty to the beneficiary to use reasonable care and skill to preserve the trust property.") (citing RESTATEMENT (SECOND) OF TRUSTS [section] 176 (1959); AUSTIN W. SCOTT & WILLLIAM F. FRATCHER, THE LAW OF TRUSTS [section] 176 (4th ed. 1987)); see also AMERICAN INDIAN POLICY REVIEW COMM'N 94TH CONG., 2 SESS., REPORT ON TRUST RESPONSIBILITIES AND THE FEDERAL-INDIAN RELATIONSHIP, INCLUDING TREATY REVIEW 179 (Comm. Print 1976) (applying trust principles to government's role in protecting Indian land).

(214) Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417, 426 (1991) (citations omitted).

(215) 931 F. Supp. 1515 (W.D. Wash. 1996).

(216) Id.

(217) 33 U.S.C. [section] 403 (1994).

(218) Northwest Sea Farms, 931 F. Supp. at 1518.

(219) Id. Article V of the Treaty of Point Elliot, Act of Jan. 22, 1855, 12 Stat. 927 (1855), reserved to the Indians the right to fish "at all usual and accustomed grounds and stations ... in common with all citizens of the Territory." Id. at 1520. The Corps determined that members of the Lummi Nation fish the proposed site of the project on a "`more than extraordinary basis.'" Id. at 1518. The Corps also concluded that the project would deny members of the Lummi Nation access to the site. Id.

(220) Id. at 1519 (citing United States v. Mitchell, 463 U.S. 206, 225 (1983); Nance v. Environmental Protection Agency, 645 F.2d 701, 711 (9th Cir. 1981)).

(221) Id. at 520 (citing Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942) (finding that the United States owes the highest fiduciary duty to protect rights contained in treaties)).

(222) Id.

(223) Id.

(224) In the Northwest, for example, although the operation of several hydroelectric dams in the mainstem Columbia River is the primary cause of mortality of several listed species of salmon and steelhead and the destruction of a significant amount of tribal fishing in the Basin, the National Marine Fisheries Service (NMFS) did not issue a jeopardy opinion on the operation of these facilities until 1995. Ironically, until 2000, the only jeopardy opinion the agency had issued in relation to the listed salmon fisheries was for the purpose of limiting tribal treaty fishing practices in the river. Further, this action occurred at the same time that NMFS issued no-jeopardy opinions on non-Indian fisheries under surprisingly similar circumstances. Mary C. Wood, Fulfilling the Executive Trust Responsibility Toward the Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration's Promises and Performance, 25 ENVTL. L. 733, 770-74 (1995) [hereinafter Trust III].

(225) The largest Indian water rights settlement in history, for example, was threatened recently when the District Court for the District of Arizona found that the ESA prohibited deliveries under the settlement agreement to the Gila River Indian Community. See generally Arizona: Impacts of the Endangered Species Act on Water Supplies, 5 W. WATER L. & POL'Y REP. 125 (2001). The court is currently considering the plaintiffs request for an injunction on the deliveries which, if granted, would indefinitely interrupt water supplied to the Gila River Community under the settlement. Id. at 126.

(226) In North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980), for example, the Inupiat native community claimed that the Secretary of the Interior's decision to issue oil leases in the Beaufort Sea Region of Alaska was contrary to both the ESA and his trust responsibility to the Tribe. In concluding that the ESA satisfied the Secretary's duty to the Inupiat because it protected the endangered Bowhead whale, upon which the community depended for subsistence, the court said:
   where the Secretary has acted responsibly in respect of the environment, he
   has implemented responsibly, and protected, the parallel concerns of the
   Native Alaskans. In sum, the substantive interests of the Native and of
   their native environment are congruent. The protection given by the
   Secretary to one, as we have held, merges with the protection he owes to
   the other.

North Slope Burough, 642 F.2d at 612.

(227) 898 F.2d 1410 (9th Cir. 1990).

(228) Id. at 1413.

(229) Id. at 1412.

(230) Id.

(231) Id. at 1412-13.

(232) Id. at 1413.

(233) Id. The parties stipulated to the fact that "`inadequate flows' of the Truckee River into Pyramid Lake have led to a `precarious condition' for the cui-ui." Id.

(234) Id. at 1420 (citing Morton v. Ruiz, 415 U.S. 199, 236 (1974)); FELIX S. COHEN, COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 225-28 (1982).

(235) Pyramid Lake Paiute Tribe of Indians, 898 F.2d at 1420 (citing Nance v. EPA, 645 F.2d 701, 710, 711 (9th Cir. 1981); Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252, 256 (D.D.C. 1972)).

(236) Pyramid Lake Paiute Tribe of Indians, 898 F.2d at 1421.

(237) See, e.g., Trust II, supra note 209, at 120 (arguing that trust duties must not be interpreted as "co-extensive with general environmental or administrative standards").

(238) Id. at 119; see also Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Department of the Interior and Commerce, 64 U. Colo. L. REv. 277, 280-81, 286-88 (1993) (questioning the effectiveness of the ESA in preventing extinction of listed species due to "loopholes, qualifiers, and escape valves" and agency discretion). An endangered species is "in danger of extinction," and a threatened species is one that is "likely to become an endangered species within the foreseeable future." Endangered Species Act of 1973, 16 U.S.C. [section] 1532(6), 1532(20) (1994). Judicial reliance on the ESA to protect tribal interests is likely due, at least in part, to the popularly held myth that the Act is the strongest environmental protection law in existence. See, e.g., ROCKY BARKER, SAVING ALL THE PARTS--RECONCILING ECONOMICS AND THE ENDANGERED SPECIES ACT 19, 137 (1993) (saying that there is a perception that Congress made "protection" of all species one of the U.S. government's highest priorities).

(239) Pyramid Lake Paiute Tribe of Indians, 898 F.2d at 1421.

(240) See Nance v. EPA, 645 F.2d 701, 710-12 (9th Cir. 1981) (recognizing that the government owes a trust responsibility to tribes beyond its statutory and regulatory obligations to the general public in designating airshed quality under the Clean Air Act); Northern Cheyenne Tribe v. Hodel, 12 Indian L. Rep. 3065, 3071 (D. Mont. 1985) (mem.) (finding the federal government violated its fiduciary responsibility to the tribe by "[i]gnoring the special needs of the tribe and treating [the tribe] like merely citizens of the affected area" in issuing coal leases on public lands adjacent to the reservation), remedy modified, No. 82-116-BLG (D. Mont. Oct. 8, 1985) (mem.), modified remedy rev'd, 851 F.2d 1152 (9th Cir. 1986); Jicarilla Apache Tribe v. Supron Energy Corp., 479 F. Supp. 536, 544-48 (D.N.M. 1979) (holding that the Secretary had fiduciary duties in overseeing mineral leases on reservation land beyond regulatory standards provided in related statutes), aff'd in part, rev'd in part on other grounds, 782 F.2d 855, 857-60 (10th Cir. 1986).

(241) 161 F.3d 569 (9th Cir. 1998).

(242) Id. at 574.

(243) Kandra v. Norton, 145 F. Supp. 2d 1192, 1197 (D. Or. 2001).

(244) Id. at 1207 (citing Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978)).

(245) Id. at 1197.

(246) Id. (citing Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 2000); Parravano v. Babbit, 70 F.3d 539, 547 (9th Cir. 1995); United States v. Adair, 723 F.2d 1394, 1408-11, 1415 (9th Cir. 1983)).

(247) Id. at 1201 (citing Patterson, 204 F.3d at 1214).

(248) Final Report and Recommendations of The Working Group on the Endangered Species Act and Indian Water Rights, 65 Fed. Reg. 41,709-01 (July 6, 2000) [hereinafter Working Group Report]. The Working Group Report recommends limiting future distribution of water rights to non-Indians, when endangered species and tribal water rights may be impacted, in order to prevent the appropriation of water needed for survival of listed species even before tribal rights can be exercised.

(249) Id. at 9.

(250) Id. at 12.

(251) Id. at 13.

(252) Endangered Species Act of 1973, 16 U.S.C. [section] 1536 (1994).

(253) Specifically, the Working Group recommends the following: 1) The environmental baseline for ESA section 7 consultation regarding agency action impacting riparian ecosystems should fully account for a) adjudicated (decreed) Indian water rights and b) Indian water fights, either partially or fully confirmed by an act of Congress; 2) Biological opinions (BiOps) on proposed or existing water projects that may affect the future exercise of senior water rights, including unadjudicated Indian water rights, should provide that future development of such water rights may result in shortages of water due to the priority status of the ESA. BiOps should also clarify that the United States Fish and Wildlife Service (FWS) can reinitiate consultation on water projects as part of federal actions that may affect senior Indian water rights; and 3) BiOps should include requests that federal action agencies retain authority to reinitiate consultation on a proposed project in the event that federal action is proposed on another project in the future addressing the exercise of a senior water right, including a senior Indian water right, in the same basin. WORKING GROUP ON THE ENDANGERED SPECIES ACT AND INDIAN WATER RIGHTS--RECOMMENDATIONS 6-8 (Aug. 6, 2000) [hereinafter WORKING GROUP RECOMMENDATIONS].

(254) The Recommendations state that 1) when an agency action requiring a section 7 consultation is proposed for a federal project in a river basin where unexercised Indian water rights exist, the agency should consider conducting such consultation on multiple federal water projects within the basin; 2) to the maximum extent possible, FWS and action agencies should identify reasonable and prudent alternatives which potentially affect the future exercise of Indian Water rights; 3) when FWS enters formal consultations on an action by any Interior Department agency that may affect an Indian tribe's ability to exercise its water rights, FWS should treat the tribe as a full participant in the consultation process; and 4) FWS should ensure that its staff understand Indian water issues and, together with the action agency, should utilize the services of the Office of the Solicitor and officials of other agencies during ESA section 7 consultation in river basins where there are Indian water rights. Id. at 9-10.

(255) Id. at 8, 10.

(256) Id. at 5.

(257) Id. at 3.

(258) Id. at 12.

(259) Objective four of the Recommendations, for example, provides that "[f]ederal funding should be part of an overall program to assist and encourage Indian tribes to address the environmental impacts of Indian water development and to enhance riparian ecosystems." Id. at 11.

(260) Many of these suggestions may be somewhat moot since Interior has taken no action to implement the Recommendations since their release, and little movement is likely under the current administration.

(261) See National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (1994 & Supp. III 1997); 40 C.F.R. [section] 1502.2 (1994).

(262) See Trust II, supra note 209, at 120 (citing Northern Cheyenne Tribe v. Hodel, 12 Indian L. Rep. 3065, 3074 (D. Mont. 1985) (mem.) (holding mineral leasing by federal government violated both NEPA and trust duty), remedy modified, No. 82-116-BLG (D. Mont. Oct. 8, 1985) (mem.), modified remedy rev'd, 851 F.2d 1152 (9th Cir. 1988)).

(263) 42 U.S.C. [section] 4332(2)(c) (1994).

(264) Pyramid Lake Paiute Tribe of Indians v. United States Navy, 898 F.2d 1410, 1420 (9th Cir. 1990); Nance v. EPA, 645 F.2d 701, 711 (9th Cir. 1981).

(265) Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 256 (D.D.C. 1972), rev'd, 499 F.2d 1095 (D.C. Cir. 1974).

(266) 40 C.F.R. [section] 1506.6 (1999).

(267) Trust II, supra note 209, at 227.

(268) See Noe v. Metropolitan Atlanta Rapid Transit Auth., 644 F.2d 434, 439 (5th Cir. 1981) (concluding that appellants' research failed to unearth any legislative intent to grant private remedies under NEPA); Ogunquit Vill. Corp. v. Davis, 553 F.2d 243, 246-47 (1st Cir. 1977) (saying no private remedy available under NEPA); Mountainbrook Homeowners Ass'n, Inc. v. Adams, 492 F. Supp. 521, 528-30 (W.D.N.C. 1979) (NEPA provides no private right of action for monetary or injunctive relief for failure to comply with terms of ELS), aff'd by 620 F.2d 294 (4th Cir. 1980).

(269) Trust I, supra note 23, at nn. 193-204; Trust III, supra note 224, at 227.

(270) United States Bureau of Reclamation, Public Involvement, at (last visited Oct. 5, 2001).

(271) NEPA requires that a federal agency draft an EIS prior to taking any actions that might qualify as "major [f]ederal actions ... significantly affecting the quality of the human environment." 42 U.S.C. [section] 4332(2)(c) (1994).

(272) Cabinet Mountain Wilderness v. Peterson, 685 F.2d 678, 682 (D.C.C. 1982); see also C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569, 1575 (1th Cir. 1988); Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986); Louisiana v. Lee, 758 F.2d 1081, 1085-86 (5th Cir. 1985). But see Sierra Club v. Marsh, 769 F.2d 868, 880 (1st Cir. 1985) (citing 46 Fed. Reg. 18,026, 18,038 (1981) for the proposition that "the Council on Environmental Quality's position that mitigation may be used to justify a FONSI only if they are `imposed by statute or regulation, or submitted ... as part of the original proposal'"); Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026, 18,038 (1981) (same) [hereinafter Forty Most Asked Questions]. See also Peter J. Eglick & Hynrek J. Hiller, NEPA's Legacy Beyond the Federal Government, The Myth of Mitigation Under NEPA and SEPA, 20 ENVTL. L. 773, 777-78 (1990) (analyzing the methods for implementing NEPA by the Council on Environmental Quality (CEQ)). In many cases, tribes who are caught up in Reclamation NEPA analysis projects may prefer to implement mitigation measures rather than conduct a full EIS. This conclusion is based on the fact that the irrigators, who typically must pay for NEPA analysis of proposed projects, and Reclamation, which may be inclined to avoid thorough analysis especially if it would place it at odds with water users, may be willing to agree to mitigation measures proposed by tribes. In addition, unlike other results of the NEPA process, such measures are fully enforceable once they are included into a Record of Decision. 40 C.F.R. [section] 1505.2 (1999); Forty Most Asked Questions, supra, at 18,026.

(273) NEPA was not adopted until 1969, almost 70 years after passage of the federal Reclamation Act, which authorized the construction and implementation of water projects throughout the West. National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (1994 & Supp. III 1997); Reclamation Act of 1902, 43 U.S.C. [subsection] 371-600e (1994 & Supp. V 1999).

(274) In the author's experience, for example, a common assertion is that because use of water is approved under a state water rights permit, the action is complete and is not reversible for purposes of NEPA. In other cases, Reclamation and irrigators claim that the agency is not required to revisit NEPA analysis, even if the original analysis did not meet procedural standards.

(275) An "action" under NEPA includes "new and continuing activities, including projects or programs entirely or partly ... approved by Federal agencies...." DANNY REINKE & LUCINCA SWARTZ, THE NEPA REFERENCE GUIDE [section] 1508.18(a) (1999) [hereinafter NEPA REFERENCE GUIDE] (emphasis added); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989) (saying that an agency must take a "`hard look' look at the environmental effects of their planned action, even after a proposal has received initial approval"). If an action takes place in stages, Reclamation must study new actions to determine if "the new information is sufficient to show that the remaining action will `affect the quality of the human environment' in a significant manner or to a significant extent not already considered." Marsh, 490 U.S. at 374.

(276) This is directly contrary to the intent of the timing of the NEPA process, which must occur "early enough so that it can serve practically as an important contribution to the decision making process and will not be used to rationalize or justify decisions already made." NEPA REFERENCE GUIDE, supra note 275, [section] 1502.5 (emphasis added).

(277) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (1994 & Supp. III 1997).

(278) Id. [section] 1313(c)(2).

(279) Id. [section] 1313. Water Quality Standards consist of designated beneficial uses, water quality criteria necessary to protect those uses, and an antidegradation policy that maintains existing uses at a level of water quality necessary for that use, protects high quality waters, and provides special protection for outstanding national resource waters. Id.

(280) Id. [section] 1313(d).

(281) Id. A TMDL is the sum of individual point and nonpoint source pollutant loads expressed as mass/time, toxicity, or other appropriate measures, with a margin of safety. Id.; 40 C.F.R. [section] 130.2(h) (2000).

(282) See, e.g., THE OR. DEP'T OF ENVTL. QUALITY, THE UMATILLA BASIN TMDL, APPENDIX A-4 at 32 (2000) (explaining that water temperature necessary for fish survival is influenced by water quantity).

(283) For example, last year, the Oregon Department of Environmental Quality and the Environmental Protection Agency proposed that fishing potentially be removed as a beneficial use as part of the Umatilla River TMDL in order to resolve water temperature problems in the Umatilla Basin caused by the over appropriation of surface flows in the river. See generally Michael Lancaster, Study Finds Flow Too Slow for Temp Standard, CAPITOL PRESS, Nov. 10, 2000 (discussing the potential removal of fishing as a beneficial use as part of the Umatilla TMDL). The Confederated Tribes of the Umatilla, however, retain fishing rights along much of the mainstem, which would be severely impacted by a decision to ignore temperature problems.

(284) United States v. Washington, 506 F. Supp. 187, 208 (W.D. Wash. 1980), aff'd in part, vacated in part, 759 F.2d 1353 (9th Cir. 1985) (per curiam en banc); see also MARY B. ISLEY ET AL., UNCOMMON CONTROVERSY: FISHING RIGHTS OF THE MUCKELSHOOT, PUYALLUP, AND NISQUALLY INDIANS (1970).

(285) 506 F. Supp at 208.

(286) United States v. Washington, 384 F. Supp. 312, 331 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975); see also MARY ISLEY ET AL., supra note 284, at 72-106 (1970) (discussing the prior and subsequent history of Washington Indian treaties and pointing out that each treaty contains approximately the same language concerning fishing rights--the right to take fish at all usual and accustomed grounds).

(287) United States v. Washington, 506 F. Supp. at 202.

(288) Id. at 204.

(289) Id. at 204 n.5 (citing Winters v. United States, 207 U.S. 564 (1908); United States v. New Mexico, 438 U.S. 696 (1978); Cappaert v. United States, 426 U.S. 128 (1976); Arizona v. California, 378 U.S. 546 (1963)).

(290) Id. at 205; see also Cappaert, 426 U.S. at 138-39 (declining to balance the equities to determine ownership of water rights).

(291) United States v. Washington, 506 F. Supp. at 202 ("An environmental right must be implied in order to fulfill the purposes of the [right to fish as provided in the treaty].").

(292) United States v. Washington, 759 F.2d 1353, 1355 (9th Cir. 1985).

(293) Northwest Indian Cemetery Protective Ass'n v. Peterson, 552 F. Supp. 951, 956 (N.D. Cal. 1982): see also Washington v. Wash. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 679 (1979) (stating that tribes likely did not perceive treaties providing the right to fish resources as reserving "merely the chance ... occasionally to dip their nets into the territorial waters"): Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032, 1035 (9th Cir. 1985) (affirming the district court's authority to protect tribal fishing rights by granting the tribe's request to maintain flows in the Yakima river necessary for the protection of fish habitat): No OilPort! v. Carter, 520 F. Supp. 334, 372-73 (W.D. Wash. 1981) (finding an evidentiary hearing necessary to determine whether construction of an oil pipeline would degrade fish habitat in violation of Indian treaty rights).

(294) See, e.g., Goodman, supra note 175, at 289-97 (discussing the recognition by courts and commentators that the substantive nature of off-reservation reserved rights requires that fish and wildlife habitat be protected in order to ensure the rights remain meaningful); Ed Goodman, Indian Tribal Sovereignty and Water Resources: Watershed, Ecosystems, And Tribal Co-Management, 20 J. LAND RESOURCES & ENVTL. L. 185, 200-03 (2000) (discussing how the degradation of fisheries through environmental pollution and mismanagement of waterways has lead tribes to assert a right to environmental protection as part of their reserved rights).

(295) 723 F.2d 1394 (9th Cir. 1983).

(296) Id. at 1409-11.

(297) Id. at 1409.

(298) This is especially true in the case of temperature standards which are often influenced by the quantity of water available.

(299) Adair, 723 F.2d at 1408 n. 13 (citing W. CANBY, AMERICAN INDIAN LAW 245-46 (1981)).

(300) Id.; see also Washington v. Wash. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675-76 (1979) (stating that it is the intent of all parties, "not solely that of the superior side" that must control the interpretation). The court in Adair determined that "securing to the Indians the right to hunt, fish, and gather was a primary purpose of the Klamath Reservation" based on the Klamath Treaty, which expressly provides that the Tribe will have exclusive on-reservation fishing and gathering rights. Adair, 723 F.2d at 1409 (citing 16 Stat. 708). The Court stated:
   In view of the historical importance of hunting and fishing, and the
   language of Article I of the 1864 Treaty, we find that one of the `very
   purposes' of establishing the Klamath Reservation was to secure to the
   Tribe a continuation of its traditional hunting and fishing lifestyle. This
   was at the forefront of the Tribe's concerns in negotiating the treaty and
   was recognized as important by the United States as well.


(301) Adair. 723 F.2d at 1410-11.

(302) Id. The court noted, however, a trend in some prior appropriation states to recognize water rights where the water can be a source of significant economic value in its natural state. Id. at 1410-11 (citing Colo. River Water Conservation Dist. v. Colo. River Water Conservation Bd., 594 P.2d 570, 573 (Colo. 1979) (applying 1973 Colorado Statute); State Dep't of Parks v. Idaho Dep't of Water Admin., 530 P.2d 924, 927 (Idaho 1974) (applying 1971 Idaho statute)).

(303) Robert Wilson, Klamath's Federal Agencies Map Different Realities, HIGH COUNTRY NEWS, Aug. 13, 2001, at 12.

(304) Id.

(305) Benson, supra note 83, at 364; Bud Ullman & Larry Dunsmoor, Klamath Basin Water: Too Many Promises, BIG RIVER NEWS, Summer 2001, at 1, 3.

(306) Kandra v. United States, 145 F. Supp. 2d 1192 (D. Or. 2001). In 1917, for example, Reclamation drained lower Klamath Lake, even though its own surveys and the precursor to today's Fish and Wildlife Service indicated that the soil in the lake bed was too alkaline for farming. "As a result, crops failed ... homesteaders went broke and the remaining lake dried up." Wilson, supra note 303, at 12. The agency finally admitted its mistake and refilled the lake, but only after more than two decades had passed. Id.

(307) Benson, supra note 83, at 408-10.

(308) See generally supra notes 81-98 and accompanying text.

(309) See generally Benson, supra note 83, at 409 (discussing how tradition makes it difficult for the Bureau to act today).

(310) Ullman & Dunsmoor, supra note 305, at 4.

(311) Klamath Irrigation Districts Plan to Sue Over Water Cutoff, SEATTLE TIMES, August 26, 2001, at B3.

(312) Tulare Lake Basin Storage Dist. v. United States, 49 Fed. Cl. 313 (2001); see supra notes 191, 207.

(313) Ullman & Dunsmoor, supra note 305, at 4.

(314) Wilson, supra note 303, at 12.

(315) Id.

HAROLD SHEPHERD, Policy Analyst on water law and policy issues for the Confederated Tribes of the Umatilla in Pendleton, Oregon. The author expresses gratitude to J.D. Williams, Dan Hester, and Aaron Skirvin with the Confederated Tribes of the Umatilla, and Bud Ullman with the Klamath Tribes for their valuable review and comments related to this article. The author also wishes to thank the students and staff of Environmental Law for their editorial assistance, and his wife, Terry, for editorial assistance and moral support.
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Author:Shepherd, Harold
Publication:Environmental Law
Geographic Code:1USA
Date:Sep 22, 2001
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