FILE IN CLERKS OFFICE . • IUPREME COURI', STATE OF WABIIIGTON

.DATE: Q~~~~3 71-l_a-_.o£; . c~--~ M. CHIEF TICii

IN THE SUPREME COURT OF THE STATE OF WASHINGTON In the Matter of the Determination of the Rights to the Use of the Surface Waters of the Yakima River Drainage Basin, in Accordance with the Provisions of Chapter 90.03, Revised Code of Washington NO. 86211-7 STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, Respondents/Cross-Appellant, ENBANC v. JAMES J. ACQUAVELLA; UNITED STATES; YAKAMA NATION; AHTANUM IRRIGATION DISTRICT; F i1 ed _ ___.M.u!-A.lllR--lOL.ll7'--L2-'-'-014L3_ JOHN COX DITCH COMPANY; LA SALLE HIGH SCHOOL; DONALD and SYLVIA BRULE; JEROME DURNIL; and ALBERT LANTRIP; DEPARTMENT OF NATURAL RESOURCES, Appellants/Cross-Respondents. STEPHENS, J.-This case concerns the adjudication of water rights in the Yakima River Basin. The parties, as appellants and cross-appellants, bring various Dep 't of Ecology v. Acquavella, et al., 86211-7 challenges to the conditional final order of the trial court determining the parties' water rights. The Court of Appeals transferred the case to this court for direct review. We affirm the trial court's determination that the decision in United States v. Ahtanum Irrigation District, 330 F.2d 897 (9th Cir. 1964) was an adjudication of nontribal water rights, but we reverse the trial court's decision concerning the quantification of irrigable land on the reservation, remanding for further proceedings. We also reverse the trial court's determinations regarding the Yakama Indian Nation's (the Nation) right to store water, affirm the trial court's conclusions regarding the rights of nontribal claimants to so-called excess water, reverse the trial court's application of the "future development" excuse under RCW 90.14.140(2)(c) for nonuse of a water right, affirm the trial court's denial of several individual water rights claims, and remand to the trial court to correct an apparent clerical error regarding an individual parcel belonging to the Chancery (the Catholic Bishop ofYakima). 1 Dep 't of Ecology v. Acquavella, et al., 86211-7

BACKGROUND By way of geographic orientation, the Yakima River is a tributary of the Columbia River, commencing at the crest of the Cascade Range near Snoqualmie Pass and generally flowing southeasterly for 175 miles before emptying into the Columbia. Dep't ofEcology v. Acquavella, 100 Wn.2d 651,652-53, 674 P.2d 160 (1983) (Acquavella I). Its major tributaries are the Kachess River, the Cle Elum River, the Teanaway River, Ahtanum Creek, Toppenish Creek, Satus Creek, and the Naches River. Id. at 653. The case before us focuses on the rights to the water of one of those major tributaries, Ahtanum Creek. The adjudication of the Ahtanum Creek Subbasin has considerable history behind it. Before turning to the merits of the present dispute, it is helpful to consider the factual background and procedural posture of this case. General Background In the sprmg of 1977, meteorologists predicted record drought for the Yakima River Basin. Sidney P. Ottem, The General Adjudication of the Yakima River: Tributaries for the Twenty-First Century and a Changing Climate, 23 J. ENVTL. L. & LITIG. 275, 286 (2008). Up to that point, several water rights holders in the basin had been exercising their rights pursuant to a 1945 consent judgment Third, the Nation claims that the trial court erred in confirming a nondiversionary stock water right to the Department of Natural Resources (DNR) with a priority date senior to all other, except the Nation's instream right to fish, without adequate evidence as to the relative priority dates. DNR does not contest this assignment of error. We remand for the entry of findings of fact on the priority dates and further conclusions of law as appropriate.

Dep 't of Ecology v. Acquavella, et al., 86211-7

entered in federal court. Id. at 285. 2 The drought prediction, which threatened to severely curtail available water in the basin, prompted several irrigation districts to ask the federal court to modify the 1945 consent judgment. Id. at 286. The Nation sought to intervene. The federal court suggested a state court general adjudication. Id. 3 In October 1977, the Department of Ecology (DOE), pursuant to chapter 90.03 RCW, filed an action to seek a general adjudication of the surface water in the Yakima River Basin. Acquavella I, 100 Wn.2d at 652. "A general adjudication, pursuant to RCW 90.03, is a process whereby all those claiming the right to use waters of a river or stream are joined in a single action to determine water rights and priorities between claimants." Id. at 652. It is akin a quiet title action. Ottem, supra, at 285. The adjudication is overseen by the superior court in which the action is filed but the court may appoint a referee or other judicial officer to assist the court. RCW 90.03.160. The Yakima River Basin encompasses 6,062 square miles. Acquavella I, 100 Wn.2d at 654. Due to its size, the general adjudication involves thousands of parties. Id. at 653. In 1989, the trial court split the case into four procedural pathways, providing that the rights of the parties would be determined in the following order: (1) federal reserved right for Indian claims, (2) federal reserved Dep 't of Ecology v. Acquavella, et al., 86211-7

rights for non-Indian claims, (3) state-based rights of major claimants, and (4) state-based rights for other claimants, by subbasin. Dep 't of Ecology v. Yakima Reservation Irrigation Dist., 121 Wn.2d 257, 262, 850 P.2d 1306 (1993) (Acquavella II). Given its scope, this is not the first time the Acquavella adjudication has been before this court, but this is the first time we have considered individual rights to the waters of Ahtanum Creek Subbasin in the context of this . adjudication. The case before us now is part of the adjudication of the water rights for the surface waters in "Subbasin Number 23" of the Yakima River Basin, also known as the "Ahtanum Creek Subbasin." Proceedings concerning Subbasin Number 23 began in approximately 1993. See Clerk's Papers (CP) at 1500. The Ahtanum Creek Subbasin is the final subbasin to be considered m the larger water adjudication of the Yakima River Basin that began m 1977. Br. of Appellant/Resp't John Cox Ditch Co. (Br. of John Cox) at 2. It therefore appears to fall into the final pathway-state-based rights for other claimants by subbasin- but in fact the Ahtanum Creek Subbasin is "extraordinary" among the subbasins of the Yakima River Basin. CP at 977. Ahtanum Creek forms the northern boundary of the Yakama Indian Reservation. CP at 1501. The subbasin is thus home to not only individual water rights holders, but also major claimants including the United States as trustee to the Nation, the Nation, the Ahtanum Irrigation District, and the John Cox Ditch Company (John Cox). Accordingly, the claimed rights of all the individual holders in the subbasin, as well as the claimed rights of those major Dep 't of Ecology v. Acquavella, et al., 86211-7

claimants, were consolidated for presentation in one proceeding. Yakama Nation's Corrected Opening Br. (Yakama Nation Br.) at 7. The proceeding was presided over first by Judge Walter A. Stauffacher, then by Court Commissioner Sydney P. Ottem, and then by Judge F. James Gavin. In 2002, having already made a number of discrete rulings and conducted fact- finding, the trial court issued a 481-page report of the court concerning the water rights for the Subbasin Number 23 (Ahtanum Creek). It incorporated the earlier rulings and made a number of rulings apportioning the water. CP at 974 (beginning of report). In March 2003, the parties filed their "exceptions," i.e., objections to the 2002 report. CP at 725. Additional evidentiary hearings took place. In 2008, the court issued a 388-page supplemental report. CP at 722. Another round of exceptions followed. CP at 532, 456. In April 2009, having considered all of the evidence and exceptions, the trial court issued a conditional final order, incorporating or revising its previous rulings. CP at 129. In May 2009, it issued an order on motions for reconsideration, granting several motions for reconsideration while denying others, incorporating those changes into its conditional final order. ^[4] CP at 74. This appeal followed.

Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et a!., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep't of Ecology v. Acquavella, eta!., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7

how much land has historically been irrigated, or what is presently being irrigated, but how much land is and could feasibly be irrigated in the future. See Arizona I, 373 U.S. at 600. 7 Below, the trial court concluded in 1994 that the decisions in Ahtanum I and II quantified the acreage that can be irrigated on the Yakama Reservation and that "the doctrine of res judicata applies to prevent relitigation of the already judicially determined irrigable acreage." CP at 1503. The trial court later noted, however, that "PIA, in its traditional sense, was found not to apply to Ahtanum Creek," CP at 1018, acknowledging that Ahtanum did not expressly discuss the PIA standard. But, wrote the trial court in. its 1994 memorandum opinion regarding the PIA standard, it was clear from the Pope Decree that the federal court was making provision for the future needs of the Nation. CP at 1508-12. Ultimately, the trial court looked to the record established in Ahtanum I and II to determine that the reservation's practicably irrigable acreage is 4,107.61 acres. We turn now to the parties' specific arguments. ^[1]. The United States/The Nation The United States maintains that the trial court erred when it concluded quantification of the Nation's water right was litigated in the Ahtanum decisions. It argues that the Ahtanum court did not rely on the PIA standard. The United States asks that this court remand the case to the trial court for a determination Dep 't of Ecology v. Acquavella, et al., 86211-7

under the practicably irrigable acreage evidence offered by the United States, which puts the total at 6,381.3 acres. Br. of United States at 19-21. The United States also argues that the trial court erred when it limited the reservation's water use to the irrigation season from April 1 to October 1. !d. at 39. The United States contends that the Pope Decree allows it to exercise its treaty rights and divert water year-round. The United States also challenges the trial court's determination that the Pope Decree precludes the Nation from exercising a storage right, i.e., the right to keep diverted water in a storage facility on the reservation for future use. !d. In addition, the United States argues that the trial court improperly included, in its confirmation of the United States' right, a number of non-Indian successors to what was once tribal land. The United States contends that it does not hold water rights in trust for such individuals and asks this court to direct the trial court to revise the United States' claim accordingly. Br. of United States at 44. Finally, the United States challenges that the trial court's description of its irrigation right as shared with Northside users between April 1 and April 15 as erroneous. In fact, argues the United States, other than John Cox, no Northsider users' irrigation season begins before April 15. Thus, the United States argues that between April 1 and April 14, it is entitled to all the flow from the creek available for irrigation, except for the John Cox share. The Nation joins in all of these arguments. In addition, it argues that this court should reverse the trial court's ruling that Northside users who had rights confirmed in the Pope Decree may take, when available, any excess water beyond Dep 't of Ecology v. Acquavella, et al., 86211-7

that to which the Nation is entitled. The Nation argues that excess water does not exist as a matter of law. Y akama Nation Br. at 4 7. The Nation also argues that the trial court erred when it ruled that Northside parties have a priority date for nondiversionary stockwater rights senior to the Nation's treaty irrigation rights, absent proof of that priority date. The Nation asks this court to reverse that determination and remand for an evidentiary hearing on the priority date of that right. ^[2]. DOE DOE cross-appeals on the issue of whether the trial court correctly interpreted RCW 90.14.140(2)(c). The trial court relied on the statute to confirm the water right of an individual user, the Hagemeiers. After five years of consecutive nonuse of a water right, relinquishment follows unless an excuse for nonuse under RCW 90.14.140(2) applies. DOE argues that the excuse upon which the Hagemeiers relied under the statute is not supported by evidence in the record. It asks for reversal on this issue. DOE also challenges AID's standing to litigate this claim on behalf of the Hagemeiers. Resp't/Cross-Appellant State of Wash., Dep't of Ecology's Reply Br. (DOE Reply Br.) at 9. In addition, DOE responds to the arguments of the appellants. DOE agrees with the United States and the Nation that the trial court should have used the practicably irrigable acreage standard, rather than relying on the federal Ahtanum litigation, to quantify the reservation's irrigation right, and that the trial court erred in holding there was no right to store water, no right to take water outside the Dep 't of Ecology v. Acquavella, et al., 86211-7

irrigation season, and no exclusive right (save John Cox's right) to the water between April 1 and April 14 of each year. DOE further agrees that the trial court confirmed stockwater rights for off-reservation users without sufficient evidence showing those rights carry a priority date senior to that of the 1855 treaty. However, DOE also agrees with the Northside users that excess water-that is, water not put to beneficial use by the Nation-should be available for allocation under state water law to Northside users. ^[3]. DNR DNR files briefing on the only issue involving it: whether the trial court erred in confirming a nondiversionary stockwater right for DNR with a priority date senior to the Nation's treaty irrigation rights. "DNR concedes that this priority date does not reflect the evidence in the record concerning DNR' s acquisition and use of its lands." Br. of DNR at 4. It asks this court to remand to the trial court for entry of findings of fact on this issue. ^[4]. John Cox In proceedings below, John Cox urged the trial court to confirm "junior" water rights. Generally, a "junior water right" is a later-appropriated right with a later priority date than a "senior" water right. See Br. of the United States as Cross-Resp't to Brs. of Appellants John Cox Ditch Co., Ahtanum Irrigation Dist., and La Salle, et al. (Resp. Br. of United States) at 4. Here, however, John Cox Dep 't of Ecology v. Acquavella, et al., 86211-7

uses the term "junior right" to mean a right to irrigate lands not recognized in the Pope Decree. ^[8] The trial court refused to recognize such right. CP at 457. John Cox also asked the trial court to recognize a right to "excess water." As John Cox formulates it, excess water is water beyond that needed to satisfy all confirmed water rights on and off the reservation and needed to satisfy minimum instream flow to support fish and aquatic life in the creek. See Br. of John Cox at 8. John Cox asked the trial court to confinn a right to excess water for two groups or classes: (1) claimants (such as John Cox) who were parties to the Code Agreement and the Achepohl Decree, but who, by virtue of the right confirmed to them in the Pope Decree, are receiving less than allocated to them under the Achepohl Decree and (2) claimants who were denied a right under the Pope Decree to participate in the Code Agreement allocation. Id. at 21-22. The trial court in an initial ruling agreed with John Cox that excess water was available for both classes of claimants. CP at 1087-88. However, the court later amended its decision and ruled that when excess water exists, it "can only be used on lands for which rights were recognized in the Pope Decree and, therefore, cannot be used as 'junior rights.'" CP at 457-58. John Cox challenges this determination. The trial court erred, John Cox argues, because it mistakenly viewed Ahtanum I and II to have been a de facto Dep 't of Ecology v. Acquavella, et al., 86211-7

adjudication of individual Northside user water rights, whereas those cases were merely an allocation of water between the reservation and all Northside users. John Cox contends that the Ahtanum cases trigger neither res judicata nor collateral estoppel on this issue. Moreover, Jolu1 Cox believes the trial court's ruling ignores state-based rights under the Achepohl Decree. In addition, John Cox asks this court to reverse the trial court's determination that it was not entitled to a post-July 10 water right, outside the irrigation season. John Cox asks that a post-July 10 right to excess water be confirmed, subordinate only to the Nation's rights. Finally, John Cox challenges a limitation placed by the trial court on John Cox's "excess water" right award. 5. AID AID joins John Cox in arguing that the trial court erred in its determination involving a "junior right" to "excess water." The use of excess water, argues AID, must be governed by state law under the provisions of the Achepohl Decree. AID faults the trial court for failing to recognize that nothing in Ahtanum I or II should or can be read to conflict with the Achepohl Decree. See Br. of Appellant Ahtanum Irrigation District (Br. of AID) at 21-27. AID believes the same argument should have led the trial court to allow a post-July 10 right to "excess water" and joins John Cox in challenging this ruling. In addition, AID advances several arguments on behalf of individual parties who were denied claims. In order to have a water right confirmed in this Dep 't of Ecology v. Acquavella, et al., 86211-7

adjudication, the trial court required every Northside claimant to show that (1) the water was beneficially applied to the land, (2) a predecessor on the land signed the Code Agreement, (3) the property also received an Achepohl Certificate, and (4) the property in question was included in an answer filed in the federal Ahtanum litigation. CP at 934. With regard to the property owned by Hull Ranches, AID claims that a mistake was made by the Ahtanum II court when it found that the owner of the property did not sign the Code Agreement, and the trial court below should not have relied on that finding. With regard to the parcels owned by the Chancery and the Richardsons, Splawns, and Lyndes, AID asks this court to remand those determinations back to the trial court, which AID contends made a clerical error in failing to include these parcels and owners in its confirmation of rights. Finally, AID responds on behalf of the Hagemeiers to DOE's challenge regarding application of the statutorily prescribed excuse for nonuse of a water right. ^[6]. La Salle High School, Donald and Sylvia Brule, Jerome Durnil, and Albert Lantrip As noted, in order to have a water right confirmed in this adjudication, the trial court required that the property in question have been included in an answer filed in the federal Ahtanum litigation. CP at 934. The trial court concluded that neither the Brules nor La Salle made a showing of the fourth prong: that their properties were included in an answer filed in the federal Ahtanum litigation, the Dep 't of Ecology v. Acquavella, et al., 86211-7

suit for which was filed in 1947. CP at 933, 495-96. The Brules argue that their predecessor in interest in 194 7, Walter Cope, was never served in the federal litigation or, if he was, none of his successors were ever substituted into the litigation after the land was transferred. Thus, the Brules contend that Ahtanum I and II can have no preclusive effect because there is no identity of parties. As to La Salle, it is not contested that the owner of the land in 1947, Jeannie Goodman, was served with the Ahtanum suit. But she died a year later. Corrected Br. of Appellants La Salle High School, Donald and Sylvia Brule, Jerome Durnil, and Albert Lantrip (Br. of La Salle) at 16. La Salle now claims that Goodman's successors were required to be substituted into the litigation under Federal Rule of Civil Procedure (FRCP) 25(a)(1). Thus, La Salle argues that the record does not establish its predecessors were "properly served with paperwork that would have put them on notice that they were parties to the Federal Ahtanum Litigation" and that case can have no preclusive effect. Br. of La Salle at 20-21. In addition, these appellants join John Cox in arguing that the Ahtanum cases were not a general adjudication of water rights to the creek. Id. at 21. Thus, argues La Salle, the trial court erred when it required Northside users to prove their property was included in an answer filed in Ahtanum II. Br. of La Salle at 22. In the alternative, these appellants also join John Cox and AID in arguing that the trial court erred when it denied "junior rights" to "excess water." They ask that if this court affirms the trial court's denial of a "senior" (i.e., primary) water right, the Dep 't of Ecology v. Acquavella, et al., 86211-7

court reverse the trial court's determination that excess water cannot be used by non-Ahtanum parties. SUMMARY OF ISSUES AND SHORT ANSWERS As noted supra note 1, some of the issues brought to us by the parties were uncontested at the close of briefing, and as to those issues, we remand to the trial court for proceedings consistent with the parties' concessions. The live issues in this appeal that remain are as follows. ^[1]. Was the federal litigation an adjudication of Northside users' rights? [Short Answer: Yes.] 2. Did the federal Ahtanum litigation quantify the reservation's irrigable acreage? [Short Answer: No. Remand for a determination of acreage.] 3. Storage right a. Did the trial court correctly characterize the reservation's claim for a storage right from April to October as premature? [Short Answer: No. Remand for further fact-finding as to the necessity of storage.] b. Did the trial court properly deny the reservation a storage right from October to April? [Short Answer: No. Reverse and remand to determine limit of right.] 4. Excess water a. Did the trial court properly conclude that, as a matter of law, excess water is available for qualifying Northside users? [Short Answer: Yes.]

Dep 't of Ecology v. Acquavella, et al., 86211-7

b. Did the trial court properly deny qualifying Northside users a right to use excess water after July 10? [Short Answer: Yes.] c. Did the trial court properly limit John Cox's interest in excess water to a 45-day period ofuse ending May 15? [Short Answer: Yes.] d. Did the trial court properly deny a "junior right" to "excess water" for lands not recognized in the Pope Decree? [Short Answer: Yes.] 5. Individual denials based on failure to satisfy the trial court's four-part test a. The Brules: Did the trial court properly determine that the Brules' predecessor in interest, W.C. Cope, was served in the federal Ahtanum litigation? [Short Answer: Yes.] b. La Salle High School: Did the trial court properly determine that La Salle's predecessors in interest were served in the federal Ahtanum litigation? [Short Answer: Yes.] c. Hull Ranches: Did the trial court properly deny Hull Ranches a water right on the basis that the Ahtanum II court found the Hull Ranches' predecessor in interest did not sign the Code Agreement? [Short Answer: Yes.] 6. Did the trial court properly apply the future development excuse in RCW 90.14.140(2)(c) to the Hagemeiers? [Short Answer: No.] 7. May this court direct the trial court to correct a clerical error? [Short Answer: Yes. Remand as to the Chancery parcel to correct any error; affirm as to the Splawn, Richardson, and Lynde parcels.]

Dep 't of Ecology v. Acquavella, et al., 86211-7

ANALYSIS There are several discrete and unrelated issues presented in this appeal. But m general, they fall into the following categories: claims dealing with quantification of the reservation's acreage, claims dealing with the reservation's right to store water, claims concerning the availability or existence of excess water, and claims of error on the part of the trial court that are specific to individual claimants. Although these issues are for the most part unrelated in fact, all require us to decide what the federal Ahtanum litigation accomplished. Disagreement between the appellants and the Northside parties as to the correct reading of Ahtanum informs most of their positions. The main area of disagreement is whether the federal Ahtanum cases constituted merely an allocation of water rights as between the reservation and the Northside users or an adjudication of Northside users' water rights. The trial court repeatedly held that it was an adjudication. See, e.g., CP at 750 (Suppl. Report of the Court (Suppl. Report) at 26). The Northside users argue it was merely an allotment or an in gross apportionment. Because the answer to this question guides several of our holdings, this opinion will turn to that question first. ^[1]. The federal Ahtanum litigation was an adjudication of Northside users' rights As explained, in order to have a water right confirmed in this adjudication, the trial court required every Northside claimant to show that (1) the water was Dep 't of Ecology v. Acquavella, et al., 86211-7

beneficially applied to the land, (2) a predecessor on the land signed the Code Agreement, (3) the property also received an Achepohl Certificate, and (4) the property in question was included in an answer filed in the federal Ahtanum litigation. CP at 934 (Mem. Op. La Salle High School (Mem. Op. re La Salle) at 3). The trial court ruled that various parties failed to show one or more of these prerequisites, and those parties were thus denied water rights. These parties now argue that the trial court erred as a matter of law in holding that the federal Ahtanum litigation had preclusive effect on Northside users' rights. See Br. of John Cox at 9; Br. of La Salle at 21. The parties assert that Ahtanum was not a general adjudication of Northside users' water rights, but merely an allocation of water as between the reservation and the Northside users. See Br. of La Salle at 21-26. The federal Ahtanum litigation did adjudicate the Northside users' water rights. The Northside users are correct that when Ahtanum was initially filed, the United States did not seek a general adjudication but instead sought to invalidate the Code Agreement. But the Ninth Circuit Court of Appeals admonished the federal district court for dismissing the United States' complaint on the basis that the United States had failed to prove it had any right, as a trustee, to the waters of Ahtanum Creek. Ahtanum I, 236 F.2d at 339. The Ahtanum I court explained that the trial court missed the point. " [A] determination of the validity of the 1908 agreement did not call for the trial court's conclusion that the United States had no interest whatever in the Ahtanum waters." Id. Instead, the Ahtanum I court Dep 't of Ecology v. Acquavella, et al., 86211-7

explained that, "as in the case of other suits to quiet title, the defendants should have been required to appear by answer and set forth their claims of right to the use of the waters of the stream." !d. It went on to direct that: Since the cause must be remanded for further proceedings in the trial court, and since those proceedings must determine and adjudicate the respective rights of the parties, during which defendants must be required to show and disclose their rights and titles, it is apparent that proper and appropriate answers must be required from all defendants. !d. (emphasis added). Despite this direction, on remand the federal district court again failed to adjudicate individual claims. The Ahtanum II court excused this exercise of discretion, but it did not adopt it. 330 F.2d at 910-12. Instead, the Ninth Circuit Court of Appeals explained that the record created at trial allowed it to fully adjudicate the relative rights of the parties, and it did so. The conclusions which we have reached here are such that a new trial of the case is unnecessary. A retrial would be most unfortunate. The parties should be informed now as to where they stand, and the unanimity of the evidence, to which we have previously alluded, makes our conclusion as to the extent of the 1908 water rights possible on this record. !d. at 914. The Ahtanum II court then made parcel-by-parcel adjustments to the irrigated acreage figures presented to the federal district court, as reflected in appendix A and appendix B ofthe court's opinion. !d. at 916, 917. Further evidence that the federal Ahtanum litigation ultimately adjudicated individual rights lies in the Northside parties' petition for writ of certiorari following the Ahtanum I decision and the Ahtanum II court's characterization of it: It would appear that [... ] the defendants were not in doubt that this court had previously ruled that they must prove their rights as of 1908 and establish their needs to the water as of that time. Thus, in their petition for certiorari following our former decision, defendants stated: "We thus find Dep 't of Ecology v. Acquavella, et a!., 86211-7

the court upholding the agreement on the one hand and then requiring the water users on the north side to completely readjudicate their rights by requiring them to establish their needs as measured fifty years ago. * * * The Court of Appeals' decision states: 'Furthermore, as in the case of other suits to quiet title, the defendants should have been required to appear by answer and set forth their claims or right to the use of the waters of the stream.' The effect is to require the Ahtanum water users to adjudicate again their right to the use of waters from the stream. They are not only required to establish their needs as of 1908, which was one of the purposes of the 1908 agreement, but are again required to prove their water rights with the same particularity which was required of them in the state court proceeding in 192 5." Plainly with this correct understanding of the meaning of our mandate the defendants at the trial on the remand proceeded to prove, elaborately and with particularity, what their water rights, or the water rights of their predecessors, were in 1908. Ahtanum II, 330 F.2d at 905. We reject the Northside users' contention that the federal Ahtanum litigation was merely an in gross allocation and not a water rights adjudication. On this point, we affirm the trial court. Because we hold that the Ahtanum litigation was an adjudication of rights, the trial court here properly required parties to show they filed an answer in Ahtanum in order to have a right confirmed in this proceeding. Keeping this overarching holding in mind, we turn now to the remaining arguments presented. ^[2]. The Ahtanum litigation did not preclusively quantify the reservation's irrigable acreage Although during the course of this proceeding the trial court issued a number of decisions quantifying the Nation's irrigable acreage, it did not make a definitive decision on this question until its 2009 memorandum opinion re Subbasin Number 23 exceptions (CP at 456-531 ). As described earlier, the trial court concluded that the federal Ahtanum litigation had preclusively quantified the amount of irrigable Dep 't of Ecology v. Acquavella, et al., 86211-7

acreage on the reservation. CP at 515. Based on quantifications made in a 1957 pretrial order on the merits in the Ahtanum cases, the trial court determined that the amount of practicably irrigable acreage is 4,107.61 acres. CP 514-15 (subtracting 992.39 acres of reservation land confirmed a separate right from the "approximately" 5,100 acres claimed by the United States in the Ahtanum cases). The Nation and the United States argue that the federal Ahtanum litigation did not quantify the reservation's acreage at all. Given that they believe quantification is still an undetermined question, the United States and the Nation argue that the correct figure is 6,381.3 acres. Br. of United States at 21; Yakama Nation Br. at 13-18. 9 Whether the trial court erred in giving Ahtanum preclusive effect on the question of the reservation's quantum of acreage is a question of law, and as such the standard of review is de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003). As an initial matter, the trial court, in finding that Ahtanum preclusively determined the reservation's irrigable acreage, relied on agreed facts in a 19 57 pretrial order in Ahtanum. "There is a second Order [the 1957 Order] that the Court believes establishes the law of the case regarding acreage." CP at 514. The trial court did not ultimately rely on an earlier 1951 pretrial order that also Dep 't ofEcology v. Acquavella, et al., 86211-7

contained references to a number of different acreage quantifications. See CP at 513-14 (discussing but not relying upon 19 51 pretrial order). It is important to point this out because some of the parties spend a fair amount of time discussing the 1951 pretrial order. See, e.g., Yakama Nation Br. at 26; Resp. Br. of Appellant/Resp't John Cox Ditch Co. to Brs. of the United States, Yakama Nation and Washington State Department of Ecology (Resp. Br. of John Cox) at 15-16; Resp. Br. of Appellant/Cross Resp't Ahtanum Irrigation Dist. to the United States and Yakama Nation, Br. of Appellant (Resp. Br. of AID) at 9-10. The trial court did appear to rely upon the 1951 pretrial order in early rulings. See CP at 923. And it also cited to the 1951 pretrial order to establish the quantity of non-Indian fee lands. CP at 515. But in the final analysis, as noted, the 1951 pretrial order was not part of the trial court's mathematical calculation as to the reservation's irrigable acreage. Id. In finding that the 1957 pretrial order controlled, the trial court looked to agreed fact XV, which stipulated that irrigable lands claimed by the reservation totaled "approximately 5,100 acres." CP at 514. The trial court found the 5,100 figure to be reasonable based on other contentions put forth by the United States in the 1957 pretrial order. CP 515. It then subtracted from 5,100 the 992.39 acres of non-Indian reservation fee land to arrive at an irrigation right for the Nation of 4,107.61 acres. The United States correctly identifies the error in the trial court's reasoning. Br. of United States at 25. The 1957 pretrial order did not contain a stipulation Dep 't of Ecology v. Acquavella, et al., 86211-7

from the parties that the irrigable land on the reservation in fact totaled 5,100. Instead, the agreed fact was merely that the United States claimed approximately 5,100 acres of irrigable land. CP at 514. It is not at all clear how an approximated figure could serve as the basis by which to quantify the reservation's irrigation right. Moreover, this agreed fact came under the heading "Lands For Which Rights To The Use of Water from Ahtanum Creek Are Claimed." CP at 3684 (1957 pretrial order at 6). Thus, the 5,100 acre calculation is not a figure the federal district court in Ahtanum arrived at as a finding of fact. Neither does the 1951 pretrial order alone provide a sufficient basis to support the trial court's determination that Ahtanum preclusively quantified the reservation's irrigable land. As the trial court itself noted, the 1951 pretrial order contained two equally reasonable quantifications of the irrigation right. CP at 923. More importantly, the 1951 pretrial order was part of a proceeding brought by the United States to invalidate the Code Agreement. The district court held that the United States had not proved that it "had any right, title or interest in any water of Ahtanum Creek" and dismissed the action and the complaint. Ahtanum I, 236 F.2d at 323-24. It would be a dubious conclusion to say that the United States' evidence of irrigable acreage incorporated into the 1951 pretrial order made a preclusive quantification of the reservation's irrigable acreage when the proceeding under which the order was entered ultimately found the United States had no interest whatsoever in the water.

Dep 't of Ecology v. Acquavella, et al., 86211-7

AID and John Cox rely on and quote extensively from the 1957 pretrial order, and the trial court's discussion of the order, in arguing that Ahtanum is preclusive. Resp. Br. of AID at 7-19; see generally Resp. Br. of John Cox. But they offer no response to the persuasive contention that an approximate claim, as the 5,100 acre figure was, is not a finding of fact. The best argument AID and John Cox have that the federal Ahtanum litigation determined the reservation's irrigable acreage can be found in language from Ahtanum I. Describing the proceeding below, the Ninth Circuit wrote: By maps and Indian Office records the United States showed the location, point of diversion and capacity of each ditch constructed by Indians, or by the Indian Service, and the description, irrigable area, and location of all reservation lands served by those ditches with water from Ahtanum Creek. Also shown are the rate of progress through the years since the creation of the treaty in getting this water upon these lands. Just which lands are Indian owned, whether under trust or fee patent, and which are owned by successors of Indian allottees, also was proven. The quantities of water required by these lands was both stipulated and proven. 236 F.3d at 340 (emphasis added); Resp. Br. of John Cox at 14-15 (quoting Judge Stauffacher's citation to this language in his 1994 PIA memo). But to the extent this language hints that the United States may have proved an acreage quantification, it merely notes that the United States adequately proved what acreage it presently irrigated as of 194 7, when the federal Ahtanum litigation commenced. This is not adequate to meet the practicably irrigable acreage standard, which must account for both present and future needs of the reservation. Arizona I, 373 U.S. at 600. Thus, it would be erroneous to hold that this language Dep 't of Ecology v. Acquavella, et al., 86211-7

intimates that the PIA quantification of the reservation's irrigation right was proved in the federal Ahtanum proceedings. John Cox endorses the trial court's view that the federal Ahtanum litigation did make provision for the future needs of the reservation, and therefore preclusively determined the reservation's practicably irrigable acreage. Resp. Br. of John Cox at 11-13; CP at 1508-12. But the portions of Ahtanum I and II that the trial court and John Cox cite in support of this assertion discuss the ongoing shorifall the reservation would face as a result of the Code Agreement. The Pope Decree's allocation tried to minimize the negative impact of the Code Agreement while respecting the agreement's percentage allocation. The conclusions which we have reached here are such that a new trial of the case is unnecessary . . . . Thus the Indian Tribe may now ascertain, by actual experience under the decree, just how badly they have suffered through the Code taking of their property. Plainly the waters they are here awarded ·will be insufficient for the irrigable lands of the Reservation. Just how insufficient they can soon tell. Ahtanum II, 330 F.2d at 914. In sum, there were several figures quantifying (or approximating) the reservation's practicably irrigable acreage available from the record created in Ahtanum. Nowhere in the Ahtanum federal district court proceedings was there a finding of fact as to the reservation's practicably irrigable acreage. Hence, it is evident that proceeding did not quantify the acreage. The trial court erred when it declined to consider the United States' evidence of practicably irrigable acreage. Because the trial court made no findings of fact as to the practicably irrigable Dep 't ofEcology v. Acquavella, et al., 86211-7

acreage evidence the United States and the Nation offered, we are not in a position to adopt those parties' contention that the correct figure is 6,381.3 acres. The acreage remains to be determined. We hold that because the federal Ahtanum proceeding did not quantify the reservation's practicably irrigable acreage, the trial court should have considered the evidence as to practicably irrigable acreage. We remand for a determination consistent with this holding. ^[3]. Storage right The Pope Decree granted qualifying parties the right to divert water from Ahtanum Creek. The parties now debate whether the Nation is precluded under the Pope Decree from also storing water, such as in a reservoir or other storage facility. The following two questions relate to that claimed right. a. The reservation's claim for a storage right from April to October is not premature Notably, the trial court did not outright deny a storage right to the reservation, but rather held that it was premature to grant one. CP at 521. The trial court noted that it would include a statement in its conditional final order (CPO) "allowing for some modification of the Yakama Nation's water right" to account for storage in the future. !d. at 522. However, it failed to include the statement in the CPO. The trial court offered little reasonmg supporting its conclusion that confirmation of a storage right for the reservation would be premature as to a storage right between April 1 and October 1. It noted only that it was a "request Dep 't of Ecology v. Acquavella, et al., 86211-7

for a potential future storage right." CP at 521. The United States argues that it is not asking for a future storage right but instead asking to store water "it already has a right to divert for use on acres it already has a right to irrigate." Br. of United States at 41-42. John Cox argues that the United States failed to provide evidence that construction of a storage facility was economically feasible or that there was a suitable site on the reservation for such storage. Resp. Br. of John Cox at 28. The United States and DOE respond that economic feasibility is an appropriate question in making a determination of practicably irrigable acreage. Because we have already concluded this case must be remanded to the trial court for a determination of the reservation's irrigable acreage under the practicably irrigable acreage standard, we have effectively mooted the question of whether a determination of the storage right is premature. We remand for fact finding from the trial court on the question of the reservation's storage needs as part of its practicably irrigable acreage determination and appropriate conclusions of law. b. The trial court erred when it denied the reservation a storage right from October to April The Nation seeks a right to divert and store water from October to April. The trial court denied this claim because it held that Ahtanum I and II precluded such an award. Those cases, wrote the trial court, "authorize diversion of water between April 1 and October 1" and "do not provide for water to be diverted during the nonirrigation season." CP at 521.

Dep 't ofEcology v. Acquavella, et al., 86211-7

By its plain language, the Pope Decree does not foreclose a storage right. It decrees that after July 10 of each year, "all the waters of Ahtanum Creek shall be available to, and subject to diversion by, the plaintiff for use on Indian Reservation lands south of Ahtanum Creek, to the extent that the said water can be put to a beneficial use." Ahtanum II, 330 F.2d at 915. We hold that the trial court erred in denying the reservation a right to store water outside the irrigation season. The extent of this storage right should be considered on remand as part of the trial court's practicably irrigable acreage determination. ^[4]. Excess water The trial court ruled that some Northside users could make use of "excess" water in Ahtanum Creek-that is, water "in excess of that needed to satisfy all confirmed water rights both on and off the reservation and any water needed to satisfy the Yakama Nation's minimum instream flow right for fish." CP at 753-54. But the trial court ordered that only lands that were recognized in the Pope Decree had a right to excess water, and it imposed additional limits. Id. at 753. These rulings are challenged by the parties. Yakama Nation Br. at 43; Br. of John Cox at 21; Br. of AID at 18; Br. of La Salle at 26-27. The following four questions relate to the parties' challenges. a. The trial court properly concluded that as a matter of law, excess water is available for qualifying Northside parties The Nation contends that as a matter of law, Northside parties should have no right to excess water. Yakama Nation Br. at 47. To be more precise, the Nation Dep 't of Ecology v. Acquavella, et al., 86211-7

argues that there is no excess water as a matter of law because the Nation's treaty- reserved rights mean that all water not specifically granted to the Northside parties reverts back to the reservation. Id. at 46-47. Moreover, there is insufficient water in the creek to satisfy even the needs of the reservation, so there is no basis to confirm an excess right for Northside parties. Id. at 47. The Pope Decree altered the traditional scheme of treaty-reserved rights in that it granted excess water to the reservation to the extent it can be put to beneficial use. See Ahtanum II, 330 F.2d at 915; see Resp. Br. of United States at 4. As a matter of law, due to its treaty-based reserved rights, the Nation has no obligation to ensure there is excess water after the allotments under the Pope Decree are satisfied. But just because there may be no water available does not mean a right to excess water cannot be confirmed to qualifying Northside users. ^[10] See United States v. Anderson, 736 F.2d 1358, 1365 (9th Cir. 1984) (noting in the context of a question about the state's jurisdiction to regulate excess water impacting a treaty reservation that "[a]ny permits issued by the state would be limited to excess water. If those permits represent rights that may be empty, so be it."); CP at 754 (explaining that "it is an irony of stream adjudications that insufficient supply does not prevent a court from confirming rights, unless it can be demonstrated that such a limitation on supply has prevented beneficial use"); see Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7

John Cox Ditch Co. to Resp. Brs. of the United States and Yakama Nation (Reply Br. of John Cox) at 23. John Cox does not appear to question as a matter of law the trial court's ability to place limits on John Cox's use of excess water. Instead, John Cox argues that the trial court's decision is not based on substantial evidence. Reply Br. of John Cox at 23-24. The United States explains how the trial court might have arrived at its 45-day limit on excess water use. Resp. Br. of United States at 30-32. It suggests the trial court might have relied on a declaration supplying evidence of flow data for 1998-2008, which could have led the trial court to conclude 45 days ending May 15 accounted for the period of time in which there was usually excess water. !d. (citing CP at 5-10). John Cox cites to its own exhibits, which it claims "show late May and early June are frequently the periods of highest flow in the Ahtanum subbasin." Reply Br. of John Cox at 24 (citing Ex. JCD (John Cox Ditch) 16 through Ex. JCD 30). However, the trial court recognized that "[t]he period of time each year that excess water might be available varies significantly." CP at 498. "[W]here competing documentary evidence must be weighed and issues of credibility resolved, the substantial evidence standard is appropriate." Dolan v. King County, 172 Wn.2d 299, 310, 258 P.3d 20 (2011). We are not in a better position than the water adjudicator to evaluate complex scientific evidence regarding water availability in the Ahtanum Creek Subbasin. Thus, although there may be conflicting evidence, there is evidence of sufficient quantum to persuade a fair-minded person that the 45-day limitation ending on May 15 was reasonable.

Dep't of Ecology v. Acquavella, et al., 86211-7

John Cox is correct that the availability of water does not necessarily dictate a right, as we have already noted. But a limitation on the right still recognizes that the right exists. We decline to disturb the trial court's limitation on John Cox's excess water right to a 45-day period of use ending on May 15. d. The trial court properly denied a "junior right" to excess water for lands not recognized in the Pope Decree Initially in this proceeding, the trial court granted a "junior right" in excess water. Under the trial court's initial ruling, a "junior" rights holder is one who either (a) was not confirmed a right in the Pope Decree, but who had been making beneficial use of excess water pursuant to an Achepohl Certificate or (b) a party who had rights under the Pope Decree, but whose use of excess water meant the party was using more water than allocated to it under the Pope Decree. CP at 1082-88 (2002 Report ofthe Court at 105-11). In the trial court's view, this award harmonized the decision in Achepohl with the Pope Decree. CP at 1087. After further reflection, the trial court changed its mind. It concluded that the Pope Decree precluded the use of excess water except on lands recognized in the Pope Decree. CP at 753 (2008 Suppl. Report of the Court at 29). The trial court found, however, that excess water could be used to fulfill the Northside users' Achepohl Certificate rights on lands confirmed under Ahtanum. The Pope Decree awarded 0.01 cfs for each irrigated acre, half of the quantity of water authorized for use in the certificates that issued following the earlier adjudication, the Achepohl Decree. The Court finds that excess water can be used, when available, on lands north of Ahtanum Creek that are confirmed rights in this proceeding, up to the 0.02 cfs per acre authorized in the appurtenant certificates.

Dep 't of Ecology v. Acquavella, et al., 86211-7

CP at 458 (2009 Mem. Op. to the 2008 Suppl. Report of the Court at 3). The Northside parties challenge the trial court's decision that excess water can be used only on lands recognized in the Pope Decree. They urge this court to embrace a more expansive view of "junior party." See Br. of John Cox at 24 (asking that this court recognize John Cox can use excess water, when available, to irrigate the additional lands confirmed to it under Achepohl but not recognized by the Pope Decree); Br. of AID at 24-27 (arguing that the federal Ahtanum litigation leaves room for the allocation of excess water to parties holding only an Achepohl Certificate). They ask that these "junior rights" apply to water that is in excess of what is already defined as excess water-that is, water that may remain after rights under the Pope Decree are fulfilled, and subordinate to qualifying Northside parties' rights in excess water. In other words, water that is in excess of excess water. The United States characterizes the Northside parties as argumg that "defendants" as contemplated in the federal Ahtanum litigation meant all defendants joined in the litigation, not just those confirmed a right. Resp. Br. of United States at 24. That argument, responds the United States, "is plainly inconsistent with the Ninth Circuit's express holding that the [Achepohl] Decree disposes of water right claims for the tracts of the 456 defendants not included in Appendix B." Id. In addition, much of the Northside parties' argument on this question relate to their assertion that the federal Ahtanum litigation was not an adjudication of their water rights, a contention we reject. Supra pp. 28-31.

Dep 't ofEcology v. Acquavella, et al., 86211-7

Because the federal Ahtanum litigation was an adjudication, that leaves at the heart of the excess water question a perceived tension between the Code Agreement, the Ahtanum cases, and Achepohl. It is troubling at first blush that Ahtanum makes no direct mention of Achepohl or the fact that many of the Northside litigants in Ahtanum were exercising rights under Achepohl. But because Ahtanum Creek would have been entirely controlled by the Nation's treaty-reserved rights but for the Code Agreement, Ahtanum I, 236 F.2d at 340, an Achepohl Certificate is meaningless if the party was not also a party to the 1908 Code Agreement. See CP at 966 (trial court's 2003 Mem. Op. re: Ahtanum Creek Threshold Legal Issues) (reasoning that "even if an Acquavella claimant can prove they were not properly joined to the U.S. v. Ahtanum proceeding, they must also prove, as every single water user was require to do in that proceeding, that they are successors to a signatory of the 1908 Code Agreement"). The Ahtanum II court determined that to have been a party to the 1908 Code Agreement, one had to have been making beneficial use of the water in 1908. If a party in the federal Ahtanum litigation could not or did not show this, or did not join the Ahtanum litigation at all, then they were denied a right under Ahtanum II. Such a denial-in effect a recognition that the party was not a signatory to the Code Agreement-worked to void the party's Achepohl Certificate. Thus, we hold that the trial court properly denied "junior rights" to use "excess water" on lands not recognized by the Pope Decree. ^[13] Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, eta!., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep't of Ecology v. Acquavella, et al., 86211-7 Dep 't of Ecology v. Acquavella, et al., 86211-7 Dep 't ofEcology v. Acquavella, et al., 86211-7