Dep't of Ecology v. Acquavella

Yakima, WA - Water Rights lawyer represented defendant with a Yakama Nation treaty that reserved water rights for the Yakama Nation claim.

This case presents the culmination of the fight for surface

water rights that arguably began in 1855 with the Yakama Nation treaty that reserved

water rights for the Yakama Nation. Since then, there have been multiple cases that

purport to (at least partially) adjudicate and reserve water rights of various parties

throughout the Yakima River Drainage Basin (the claim Basin). Some of the present

parties have litigated these water rights in both federal and state court. The current

litigation began in 1977 when the Washington State Department of Ecology filed a

general water rights adjudication for all waters contained within the Basin. The

Yakima County Superior Court divided the Basin into multiple distinct subbasins

and issued conditional final orders (CFOs) for each subbasin at various points within

the litigation. The superior court issued its final decree in May 2019, incorporating

all of the prior CFOs as necessary. Multiple parties appealed the final decree, and,

after briefing was received, Division Three of the Court of Appeals certified the case

to this court.

The current appeal contains what can be categorized as three separate appeals,

each seeking to modify the trial court's final decree (or the incorporations of the

CFOs within). Although each distinct appeal is unrelated as to the disputed issues,

some parties have an interest in more than one appeal. Further, all three appeals are

tied together by slight variations on one common procedural gatekeeping issue: the

appealability of CFOs and how that relates to an appeal of the final decree.

Overall, we reverse the superior court in part and affirm in part, as follows.

We hold that RAP 2.2(d) and CR 54(b), which govern the appealability of a partial

final judgment in a case with multiple parties, are permissive rules and that a failure

to appeal from an order certified for appeal under these rules does not preclude an

appeal from the final judgment. In addition, res judicata does not bar Ahtanum

Irrigation District (AID) from appealing issues in the final decree. Further, we hold

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that the Yakama Nation, the Yakama Reservation Irrigation District (YRID), and the

United States are appealing a conflict between a prior order and the final judgment

in this case. Accordingly, we hold that all three appeals in this case are timely and

reach the merits of the issues presented.

We accept the concession of Ecology and reverse the superior court's acreage

limits on the Yakama Nation's specified water rights and remand to strike the limits.

Further, given that no party opposes the merits, we reverse the superior court's

calculation of Rattlesnake Ditch Association's (RDA) members' water rights and

remand to recalculate the members' water rights using the expert testimony as set

forth in RDA's opening brief. We affirm the superior court's holding that AID may

not open the headgates at Bachelor Creek and Hatton Creek for nondiversionary

stockwater or to rehydrate the creeks. However, we hold that AID does have a

nondiversionary stockwater right to the natural waters at Bachelor and Hatton

Creeks from Ahtanum Creek outside of irrigation season. However, because this

right is junior to the water rights of the Yakama Nation, it may be exercised only in

the unlikely event that the Yakama Nation is not making beneficial use of all the

waters of Ahtanum Creek. Finally, we affirm the superior court's holding that AID's

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water duty was adjudicated in the federal Ahtanum1 cases and affirm the superior

court's denial of conveyance loss water, as conveyance loss is part of water duty.

Due to the lengthy litigation and the large number of parties in this case, a

brief history of the Acquavella litigation and an overview of each of the three

appeals, including the parties and issues presented, is instructive in understanding

the issues presented in this case.

A BRIEF HISTORY OF THE ACQUAVELLA LITIGATION

As a whole, this case concerns the litigation surrounding the water rights in

the Basin. "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.” In re Yakima River Drainage Basin, 177 Wn.2d 299, 305, 296 P.3d 835

(2013) (Acquavella V).

In 1977, Ecology initiated a general adjudication pursuant to chapter 90.03

RCW to determine the priority of water rights held within the Basin. "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.” Dep't of Ecology v. Acquavella, 100

1 United States v. Ahtanum Irrig. Dist., 236 F.2d 321 (9th Cir. 1956) (Ahtanum I); United

States v. Ahtanum Irrig. Dist., 330 F.2d 897 (9th Cir. 1964) (Ahtanum II).

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Wn.2d 651, 652, 674 P.2d 160 (1983) (Acquavella I). "It is akin [to] a quiet title

action.” Acquavella V, 177 Wn.2d at 306. By 1981 this included over 2100

claimants, although only a handful are parties to this appeal.

Pursuant to RCW 90.03.160, the Yakima County Superior Court appointed a

referee to assist the court in evaluating the claims. The referee set forth the process

for each interested party to submit their claim to water rights within the Basin. The

court divided the adjudication into multiple subbasins and divided the water rights

at issue into four procedural pathways:

"1. Federal reserved rights for Indian claims.

"2. Federal reserved rights for non-Indian claims.

"3. State-based rights of major claimants.

"4. State-based rights for other claimants, by subbasin.”

Dep't of Ecology v. Yakima Reservation Irrig. Dist., 121 Wn.2d 257, 262, 850 P.2d

1306 (1993) (Acquavella II).

Throughout this case, there have been various appeals decided: four by this

court and one by Division Three of the Court of Appeals. In Acquavella I, we held

that "under the special circumstances of this case the notice provided by [Ecology]

was adequate to meet constitutional due process requirements.” 100 Wn.2d at 659.

In Acquavella II, we addressed multiple issues related to the Yakama Nation and

whether some congressional acts limited the Yakama Nation's water rights. 121

Wn.2d at 272-73. In Department of Ecology v. Acquavella, 131 Wn.2d 746, 750,

935 P.2d 595 (1997) (Acquavella III), we addressed the superior court's award of

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water rights to the Yakima-Tieton Irrigation District. In Department of Ecology v.

Acquavella, 112 Wn. App. 729, 732, 51 P.3d 800 (2002) (Acquavella IV), Division

Three of the Court of Appeals examined res judicata as it related to the denial of

water rights to a party that did not assert its rights in a previous adjudication. Finally,

in Acquavella V, this court addressed many discrete issues affecting the Ahtanum

Subbasin. 177 Wn.2d at 304. Significant to the present appeal, we held that the

federal Ahtanum litigation was a water rights adjudication that is binding on this

litigation. Id. at 326-29.

On May 19, 2019, the superior court issued its final decree, which

incorporated all previous CFOs and included the final schedule of water rights

(FSOR). Five parties timely appealed, as will be described below. This case presents

the first time that the Acquavella litigation has had an appeal from the final decree.

Division Three of the Court of Appeals certified the case to this court. Washington

State Supreme Court Commissioner Michael Johnston accepted certification.

THE THREE APPEALS, PARTIES, AND ISSUES PRESENTED

1. The Yakama Nation Appeal: Yakama Nation, YRID, and the United States

versus Ecology

The first appeal concerns the acreage limits to the Yakama Nation's water

rights in the Wapato Irrigation Project (Project) contained within the FSOR in the

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final decree. The United States is a party in this case by way of the McCarran

Amendment2 and acts as trustee to the Yakama Nation.

Both the Yakama Nation and the United States have filed briefing seeking

reversal of the limits in the FSOR. YRID has filed briefing joining in the Yakama

Nation's brief. The Yakama Nation and the United States are not challenging the

amount of water the Yakama Nation received under the final decree. They challenge

the acreage limits to how much land they can irrigate with said water within the

Project. They argue that the allocation of water within the Project is a duty of the

United States Bureau of Indian Affairs (BIA) and, therefore, is controlled by federal

law and that the state court cannot limit that use.

Not only does no one dispute the Yakama Nation's and the United States'

view of the law, Ecology is the only party to file a response brief and it explicitly

agrees with their interpretation of the law. See Ecology's Resp. Br. to Yakama

Nation, U.S., and YRID at 4-6. However, in the interest of "fairness,” Ecology

believes that these parties needed to appeal the acreage limitation under the

applicable CFO, which the superior court indicated was appealable under RAP

2.2(d). Id. at 4.

In its reply, the United States notes that its assignments of error are not

dependent on the appealability of the CFO issues as the FSOR contains acreage

2 43 U.S.C. § 666.

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limits that are not contained within the CFO. Therefore, it could not have appealed

the issue in 1996. However, the United States also contends in the alternative that

CFO issues are appealable in the final decree, as RAP 2.2(d) states, "[A]n appeal

may be taken from a final judgment that does not dispose of all the claims or counts

as to all the parties.” (Emphasis added.) Because "may” is not mandatory language,

parties can wait until the final decree to appeal. The Yakama Nation's reply

arguments are similar.

2. The RDA Appeal: RDA and its members3 versus Ecology (and previously, but

no longer, the Inouyes)

The first appeal in this case concerns the calculation of the water duty4 of

RDA and its members. RDA presents six different issues in its opening brief. Four

issues relate to issues of Robert and Carol Inouye's water rights. Since the initial

briefing at the Court of Appeals, RDA and the Inouyes have settled and filed a joint

motion to dismiss those four issues from review.

3 The RDA members include "Justin and Alyssa Briscoe, George and Janin Cameron,

Marty Ebert, John and Peggy Euteneier, [Steve Miller and] Katherine Hanses, Tim and Virginia

Hunter, Carla Jaeger and Bill Wentz, Linda King, Keith Morris, and Denny and Darlene Sveen.”

Appellant RDA's Supplemented Opening Br. at 1.

4 "[Water duty] [is] that measure of water, which, by careful management and use,

without wastage, is reasonably required to be applied to any given tract of land for

such period of time as may be adequate to produce therefrom a maximum amount

of such crops as ordinarily are grown thereon. It is not a hard and fast unit of

measurement, but is variable according to conditions.”

Dep't of Ecology v. Grimes, 121 Wn.2d 459, 469, 852 P.2d 1044 (1993) (first alteration in original)

(quoting In re Application for Water Rights of Steffens, 756 P.2d 1002, 1005-06 (Colo. 1988)).

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The remaining two issues relate to the issue of calculating conveyance losses

and the expert testimony of Dr. George Maddox as to this type of calculation. RDA

contends that the superior court improperly calculated its members' water duty by

failing to include Dr. Maddox's testimony on conveyance losses (or the amount of

water lost in transit). RDA contends that this improper calculation means that its

members do not receive adequate water to account for the loss and, therefore, are

not receiving their full amount of water. This issue is not disputed nor is it challenged

on the merits by any party.

Ecology did file a response brief asserting that RDA needed to appeal this

issue in their subbasin's CFO and that the current appeal is untimely and prejudicial

to other parties. Accordingly, the issues relevant to resolve the RDA Appeal are

whether an appealable CFO must be appealed, whether an appellant may wait until

entry of the final decree to appeal terms of a CFO, and whether the CFO is appealable

as a final judgment.

3. The Ahtanum Appeal: AID versus Yakama Nation (including a cross appeal),

United States, and Ecology

AID contends that the superior court erred by (1) limiting AIDs patrons'

access to nondiversionary stockwater5 by improperly characterizing Bachelor and

5 "Nondiversionary stockwater” is naturally occurring water that is not diverted by human

efforts from another water source and from which livestock drink directly. See Clerk's Papers

(CP) at 2095-96.

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Hatton Creeks (which both break off from Ahtanum Creek) as irrigation canals, (2)

curtailing natural flows to the creeks by requiring AID to close the headgate6 outside

of irrigation season, (3) limiting AID's water duty, and (4) denying AID's claim for

conveyance water by improperly determining conveyance waste.

Like the other appeals, Ecology again argues that AID's appeal is untimely.

However, in this case Ecology also contends that res judicata precludes the appeal

as it is a collateral attack on the previous CFO that AID did appeal.

AID argues that the superior court erred in not allowing AID to open the

headgates at Bachelor and Hatton Creeks outside of irrigation season to gain more

natural water flow. Br. for Appellant AID at 11. AID contends that in having a right

to nondiversionary stockwater, it has the right to all natural flows, without the

headgates, and that the users in 1908 did not have headgates. Id. Further, the

headgates require AID to use some of its irrigation water to rehydrate the creeks

during the irrigation season. Id. at 13.

However, the Yakama Nation and the United States argue that AID is not

permitted to open the headgates outside of the irrigation season for many reasons.

First, they argue Yakama Nation has a right to all of the water in the Ahtanum Creek

outside of irrigation season under Ahtanum II. Therefore, any waters diverted into

6 A "headgate” is a human-made gate that can be opened or closed to control the flow of

water for irrigation. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1042 (2002).

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Bachelor and Hatton Creeks would take away from the Yakama Nation's water.

U.S.' Br. in Resp. to AID at 27. Further, the Yakama Nation's right to the water is

senior to AID's alleged right to nondiversionary stockwater and, thus, takes priority.

Id. at 30-33. Also, they contend that the addition of the headgates transformed the

creeks that were naturally occurring, into creeks that require human intervention to

divert the formerly naturally occurring water into the Bachelor and Hatton Creeks.

Yakama Nation's Resp./Cross-Appeal Br. to AID at 18-21. The superior court thus

found that the creeks function as irrigation channels and that AID is no longer

entitled to nondiversionary stockwater, except for that flow that occurs when the

headgates are closed. Id. at 21, 24. In addition, the Yakama Nation argues that the

superior court found that AID did not present evidence that there was a preirrigation

season right to rehydrate the creeks. Id. at 34-35. Without this beneficial use, the

water right is lost. Id. at 35. Finally, Ahtanum II precludes diverting water, and the

Yakama Nation contends this applies outside of irrigation season, and not just from

July 10 to the end of the season. Id. at 36. The Yakama Nation has also filed a cross

appeal on this issue.

As to water duty, AID argues the superior court erred in holding that the issue

of water duty had already been decided in the federal Ahtanum litigation because it

did not have notice that water duty was going to be litigated at the Ninth Circuit

Court of Appeals. Br. for Appellant AID at 15. In contrast, the Yakama Nation

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argues that Ahtanum did rule on water duty and that Acquavella V confirmed that

the case was an adjudication of water rights. Further, the United States argues that

AID did have the opportunity to litigate during the Ninth Circuit proceedings but

chose not to, and that the prior litigation is binding. U.S.' Br. in Resp. to AID at 46-

48.

In addition, AID also argues that it is entitled to conveyance loss water

because other irrigation districts were allowed conveyance loss water. Br. for

Appellant AID at 14. However, the Yakama Nation argues that conveyance loss and

water duty was adjudicated during the Ahtanum litigation and that this court cannot

change its rulings. Yakama Nation's Resp./Cross-Appeal Br. to AID at 40. The

United States argues that AID waived this argument by not presenting it below and

that Ahtanum II and Acquavella V preclude it. U.S.' Br. in Resp. to AID at 43.

ISSUES AND SHORT ANSWERS

1. Whether the present appeals are timely when the appealing parties either did

not appeal the CFO when it was issued or appealed different issues when the

CFO was issued? [Short answer—yes, all three appeals are timely. The use of

the word "may” in RAP 2.2(d) is permissive and not mandatory. In addition,

the Yakama Nation Appeal concerns an issue of a conflict between the final

decree/FSOR and the CFO, and therefore, the issue did not exist at the time

the CFO was issued.]

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2. Whether the trial court erred when it imposed acreage limits on the amount

of land that the Yakama Nation may irrigate with its set amount of water, once

that water has been diverted to the Project? [Short answer—yes. No one

contests this issue, and Ecology concedes this issue.]

3. Whether the trial court erred in calculating the conveyance water of the RDA

members? [Short answer—yes. No party opposes RDA on the merits of this

issue.]

4. Whether the trial court erred in requiring AID to close the headgates to

Bachelor Creek and Hatton Creek outside of irrigation season, curtailing

natural water flows to rehydrate the creeks and limiting nondiversionary

stockwater?7 [Short answer—no. Under Ahtanum II and Acquavella V, the

Yakama Nation has a senior water right to divert all flows from Ahtanum

Creek outside of irrigation season, and AID sets forth no basis for a water

right to rehydrate. However, we hold that Bachelor and Hatton Creeks are

natural watercourses such that AID does have a nondiversionary stockwater

right that is junior to the Yakama Nation's water rights.]

5. Whether the trial court erred in failing to apply a standard water duty to the

Ahtanum Subbasin, limiting the AID patrons' water duty? [Short answer—no.

7 AID characterizes this as two separate issues, but the United States combines them into

one issue because they are so interconnected. We agree with the United States' assessment and

treat these two issues as one.

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As noted, in Acquavella V we concluded that Ahtanum II was a binding

adjudication of northside water users' rights. Any issues of water duty

calculation should have been raised in Ahtanum II.]

6. Whether the trial court erred in denying AID's claim for conveyance water?

[Short answer—no. Conveyance water is included in water duty, which was

adjudicated in Ahtanum II.]

SPECIFIC FACTS AND ANALYSIS FOR EACH APPEAL

I. The timeliness of the present appeals

Timeliness is the procedural gateway to the merits of each appeal, and each

appeal contains a variation on the issue of the appealability of CFOs in relation to

timeliness. Because this section largely concerns the procedural language contained

within the CFOs, but not the substance of the CFOs, we recount only facts necessary

to assess the timeliness issue. Facts related to the merits of the other issues are found

within the discussion of each appeal.

A. Standard of review

The interpretation of a court rule is a question of law this court reviews de

novo. State v. Stump, 185 Wn.2d 454, 458, 374 P.3d 89 (2016). "Court rules are

interpreted in the same manner as statutes. If the rule's meaning is plain on its face,

we must give effect to that meaning as an expression of the drafter's intent.” Jafar

v. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042 (2013).

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B. The present appeals are timely because an appeal of a CFO certified

under CR 54(b) and RAP 2.2(d) is permissive and not mandatory

As explained above, the present adjudication has been divided into multiple

subbasins and procedural pathways. After reviewing the procedures laid out by the

referee, the superior court issued CFOs for each of the subbasins. Relevant to this

issue are

• the 1993 CFO for Subbasin No. 16 (Upper Naches) (hereinafter the

Upper Naches CFO) (which includes the interests of RDA);

• the 1996 CFO for Yakama Indian Nation Court Claim Nos. 2276 and

7253 (hereinafter the Yakama Nation CFO)8 (which includes the

interests of the Yakama Nation, YRID, and the United States); and

• the 2009 CFO for Subbasin No. 23 (Ahtanum) (hereinafter the

Ahtanum CFO) (which includes the interests of AID, the United States,

and the Yakama Nation).

Each of these CFOs includes some language that indicates the CFO is a final

order for the purposes of appeal under RAP 2.2(d). The specific language in the

CFOs is, however, not necessary to resolve the interpretation of the language in RAP

2.2(d) and CR 54(b).

8 The Yakama Nation CFO contains a provision that specifically states, "This Order

contains no quantification nor expresses any opinion on the Yakama Indian Nation's water right

to the flows of Ahtanum Creek. That right shall be quantified in another report specific to that

subbasin.” CP at 988. That Yakama Nation CFO is also at issue in the present case.

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A court generally must resolve all claims for and against all parties before it

enters a final judgment on any part of the case. Loeffelholz v. Citizens for Leaders

with Ethics & Accountability Now, 119 Wn. App. 665, 693, 82 P.3d 1199 (2004). A

final judgment is generally "'the final determination of the rights of the parties in the

action.'” Id. (quoting CR 54(a)(1)). RAP 2.2(d) and its companion rule, CR 54(b),

create an exception. In a case with multiple parties or multiple claims, as is the case

here, a party is allowed to appeal from a partial final judgment but only if the final

order contains an express determination that there is no just reason for delay,

supported by written findings, and an express direction for entry of the judgment.

Fluor Enters., Inc. v. Walter Constr., Ltd., 141 Wn. App. 761, 767, 172 P.3d 368

(2007). The goal behind the exception is to avoid piecemeal appeals. Loeffelholz,

119 Wn. App. at 693.

Specifically, under RAP 2.2(d),

In any case with multiple parties or multiple claims for relief . . . an

appeal may be taken from a final judgment that does not dispose of all

the claims or counts as to all the parties, but only after an express

direction by the trial court for entry of judgment and an express

determination in the judgment, supported by written findings, that there

is no just reason for delay. The findings may be made at the time of

entry of judgment or thereafter on the court's own motion or on motion

of any party. The time for filing notice of appeal begins to run from the

entry of the required findings. In the absence of the required findings,

determination and direction, a judgment that adjudicates less than all

the claims or counts, or adjudicates the rights and liabilities of less than

all the parties, is subject only to discretionary review until the entry of

a final judgment adjudicating all the claims, counts, rights, and

liabilities of all the parties.

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(Emphasis added.) Similarly, under CR 54(b),

When more than one claim for relief is presented in an action, whether

as a claim, counterclaim, cross claim, or third party claim, or when

multiple parties are involved, the court may direct the entry of a final

judgment as to one or more but fewer than all of the claims or parties

only upon an express determination in the judgment, supported by

written findings, that there is no just reason for delay and upon an

express direction for the entry of judgment. The findings may be made

at the time of entry of judgment or thereafter on the courts own motion

or on motion of any party. In the absence of such findings,

determination and direction, any order or other form of decision,

however designated, which adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the parties shall not terminate the

action as to any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of judgment

adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added.)

The most important language from a general procedural gatekeeping

perspective is that RAP 2.2(d) states that a party may appeal a partial final judgment.

It does not require a party to appeal. The use of the word "may” is unambiguous and

thus afforded its plain and obvious meaning. See Dep't of Ecology v. Campbell &

Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Therefore, although the parties may

have been allowed to appeal the CFOs (and some parties did just that), they were not

required to in order to appeal the final judgment in this case (the final decree and the

FSOR).

Further support for this interpretation can be found in Fox v. Sunmaster

Prods., Inc., 115 Wn.2d 498, 798 P.2d 808 (1990). In that case, the defendant,

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Ladder Industries, moved for summary judgment against the Foxes, arguing they

could not be held liable for the suit. Id. at 499. The court granted the motion. Id.

Months later, the other defendant, Sunmaster, moved for summary judgment seeking

dismissal. Id. at 500. The court granted that motion as well. Id. After losing a motion

for reconsideration, the Foxes appealed both summary judgment orders. Id. Ladder

Industries moved to dismiss as untimely, as more than 30 days had passed since its

summary judgment order was final. Id. This court held that although there was a

delay, the appeal against Ladder Industries was timely, because the CR 54(b)

certification was not proper and, even if it had been, "that would have meant only

that the Foxes could have appealed immediately.” Id. at 502.

As to the permissive language of the rules, we reasoned, "RAP 2.2(d) says an

appeal 'may be taken' from certain kinds of decisions entered before the case is

finally disposed of. The rule 'does not explicitly say what must be appealed to avoid

loss of the right of review or other prejudice.'” Id. at 504 (quoting 2A LEWIS H.

ORLAND, WASHINGTON PRACTICE: RULES PRACTICE author's cmts. § 3061, at 432

(3d ed. 1978)). Further, "the rules contemplate that various kinds of decisions—

specifically including earlier appealable orders—will be reviewed in the appeal from

the final judgment in the case.” Id. We ultimately held that it "makes no sense to

mandate an immediate appeal from a partial final judgment entered under CR 54(b),

even though the judgment might qualify as appealable under RAP 2.2(d)” because

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"[q]uite possibly some subsequent order will render an adverse decision moot, or the

party will ultimately prevail on remaining issues or recover against other parties.”

Id. at 505. A party cannot know if subsequent rulings in a multiparty case will affect

a partial final judgment or if they will ever need to appeal an adverse ruling.

Allowing parties to wait until the final order to appeal prevents "perhaps unnecessary

appeals in multiparty and multiclaim cases.” Id.

Nonetheless Ecology contends, without citing to any authority, that the final

decree in this case "does not open the door to collateral attack on every judicial

finding that has been made in every CFO by the trial court over the course of this

lengthy adjudication.” Resp. Br. of Ecology to Opening Br. of RDA at 4-5. In an

attempt to support this assertion, Ecology quotes the final decree,

"The CFOs entered in this action confirm the valid surface water

rights in this case, and those rights are integrated in this Final Decree.

Since each water right entered in a CFO was confirmed as of the

original date of entry of the CFO, any future determination of the

extent and validity of the water right (including any determination of

relinquishment) shall commence from the date of entry of the CFO

unless otherwise provided by law . . . .”

Id. at 6 (quoting Clerk's Papers (CP) at 570). However, this argument is predicated

on a misunderstanding of the trial court's order. The trial court order simply

acknowledged that the 1983-2009 CFOs confirmed water rights for purposes of

priority and relinquishment against the rest of the world as of the date of entry unless

modified within this particular adjudication. It had nothing to do with whether the

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CFOs were final for purposes of appealability when entered. Therefore, Ecology's

contention is not persuasive.

Ecology further argues that because "the several CFOs in this adjudication

resolved the merits of the parties' legal claims, often decades ago,” the CFOs are

final judgments, and the previous Acquavella appeals would not have been possible

if they were not. Id. at 10-11. This contention does not change the language of RAP

2.2(d) that the appeal from the CFO was not mandatory. While some parties chose

to appeal the CFOs, no party was required to appeal. Further, as RDA emphasizes,

this court has held that although this case is broken down into multiple procedural

pathways and subbasins, it is "[a] general adjudication, pursuant to RCW 90.03, . . .

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.”

Acquavella I, 100 Wn.2d at 652. Therefore, no CFO determines the merits of all

involved parties' claims such that it is a full final judgment.

Ecology also attempts to argue that AID's appeal is barred by the doctrine of

res judicata, claiming that this is a collateral attack on the Ahtanum CFO. Resp. Br.

of Ecology to Br. for Appellant AID at 5. Ecology claims that res judicata applies

because, "[r]es judicata precludes litigation by collateral attack, and generally

speaking, a motion raising the same claim filed in a different action constitutes a

collateral attack.” Id. (citing In re Marriage of Aldrich, 72 Wn. App. 132, 138, 864

Dep't of Ecology v. Acquavella, et al., No. 99373-4

21

P.2d 388 (1993)). Here, AID is not raising the same claim in a different action when

it appeals issues in the CFO, rather, AID is appealing different issues in the same

action.

"'The threshold requirement of res judicata is a final judgment on the merits

in the prior suit.'” State v. Stevens County Dist. Court Judge, 194 Wn.2d 898, 903,

453 P.3d 984 (2019) (quoting Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,

865, 93 P.3d 108 (2004)). Ironically, as will be discussed in detail below, AID's

appeal is partially precluded on the merits because some of the issues raised appear

to be a collateral attack on the issues previously decided in Ahtanum II. However,

Ecology does not argue this (and the United States and the Yakama Nation argue

this, without invoking res judicata, by simply arguing that the issues have been

previously adjudicated in the Ninth Circuit and are binding under Acquavella V).

Accordingly, we hold that RDA's and AID's appeals from the final decree are

timely because the appeals from the CFOs were permissive and not mandatory.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

22

C. The United States, the Yakama Nation, and YRID are appealing an

alleged conflict between the CFO and the FSOR9

The Yakama Nation Appeal is also timely. The various historical and

procedural rulings show the parties raise an issue of a conflict between the Yakama

Nation CFO and the FSOR and not an issue found within the Yakama Nation CFO

alone. However, because this issue requires extensive facts, and to avoid repetition

of those facts, we will address it in the next section while discussing the uncontested

acreage limit issue.

II. The Yakama Nation Appeal

The Yakama Nation, the United States, and YRID all contend that the trial

court erred when it imposed acreage limits on the Yakama Nation's federal water

rights to irrigate land within the Project. This concerns water rights S4-84762-J, S4-

84763-J, S4-84754-J, and S4-84755-J. Although the Yakama Nation CFO and the

FSOR both indicate that these surface water rights are not subject to state law or

oversight, the FSOR nonetheless indicates the specific number of irrigable acres for

which the water can be used. See, e.g., CP at 975 (setting out that the S4-84762-J

water right is to be used for 72,000 irrigable acres but also that "[t]his water right is

9 We note that the Yakama Nation (and, thus, YRID) does offer an alternative argument

that if the Yakama Nation CFO does set an acreage limit, it was incorrect and should be reversed.

See Yakama Nation's Opening Br. at 4-5 (assignments of error 4 and 6). The Yakama Nation

reiterates that it seeks this court's review of the Yakama Nation CFO "only if the Court does not

grant the Nation's appeal of the Schedule of Rights.” Yakama Nation's Reply Br. to Ecology's

Resp. Brs. at 4. We need not address the appealability of this issue as we agree that the Yakama

Nation's request for relief is about a conflict between the Yakama Nation CFO and the FSOR.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

23

a federally reserved right and is not subject to state regulation, law or oversight”).

Although we accept Ecology's concession on the merits of this appeal, we examine

the background facts and procedure for context and to show why this appeal is an

appeal from the final decree and FSOR and not from the Yakama Nation CFO.

The Project is located on the Yakama Indian Reservation (Reservation) and is

operated by BIA. The Project diverts water from the Yakima River for use on the

Reservation's irrigable land. These water rights were reserved by the Yakama Nation

when it entered into the 1855 treaty with the United States. See 12 Stat. 951 (1855)

(Treaty with the Yakama Nation). At the time the Project began construction, it was

understood that the Reservation contained approximately 120,000 acres of irrigable

land. These were split into approximate 72,000 acres of "A” lands (which would

bear no cost to store water) and 48,000 acres of "B” lands (which would bear costs

to store water). These acreage limits are found in the FSOR. However, in 1962 the

BIA estimated the Project to be more than 136,000 acres of irrigable land (amounting

to approximately 79,000 "A” lands and 57,000 "B” lands).

In 1990, the superior court entered partial summary judgment finding that the

Yakama Nation did reserve federal water rights in the 1855 treaty. However, it also

held that Congress had abrogated some of the water rights and modified priority

dates through prior statutes. The partial summary judgment did not indicate how the

water was to be allocated once diverted by the Project.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

24

On appeal, in Acquavella II, this court concluded that Congress "intended to

abrogate the treaty rights of the [Yakama Nation] by limiting the amount of water to

which they were entitled for irrigation and by modifying the priority date with

respect to some of that water.” 121 Wn.2d at 298. We therefore affirmed the 1990

"Amended Partial Summary Judgment.” However, in Acquavella II the parties did

not ask this court how the water could be allocated among the irrigable acreage of

the Project (though the court did refer to the 120,000 acre figure in the opinion). See,

e.g., 121 Wn.2d at 299.

In the Yakama Nation CFO, the court included a provision that reads,

None of the Yakama Indian Nation's surface water rights in the Yakima

Basin are subject to state law or oversight. The allocation of water, once

diverted onto the Yakima Indian Reservation at the Wapato Irrigation

Project diversion points, remains a duty of the Bureau of Indian Affairs

through the Wapato Irrigation Project, subject to the requirements of

federal law.

CP at 989. The Yakama Nation did not appeal this CFO.

In contrast to this language in the Yakama Nation CFO, the FSOR limits the

use of the water rights to either the 72,000 acres of "A” lands or the 48,000 acres of

"B” lands, depending on the specific water right. The United States and the Yakama

Nation objected to the draft schedule of rights to the extent that it limited the acreage

and thus BIA's ability to allocate water as it sees fit under federal law. Specifically,

because there has since been found to be more irrigable land than the initial 72,000

acres and 48,000 acres, the limitations on the water rights prevent BIA from

Dep't of Ecology v. Acquavella, et al., No. 99373-4

25

providing water to that land, although it should have control of the allocation of

water once diverted onto the Reservation. Accordingly, the United States and

Yakama Nation seek to have the acreage limits removed from the FSOR. Further,

this shows that the parties are not appealing the Yakama Nation CFO but, rather, the

conflict that arises between the absence of the acreage limits in the CFO with the

subsequent acreage limits in the FSOR. We hold that this appeal of the FSOR is

timely.

As to the acreage limitations, Ecology agrees and concedes this issue as it did

before the trial court. Ecology Resp. Br. to Yakama Nation, U.S., and YRID at 5-6.

Ecology agrees and contends that paragraph 9 of the Yakama Nation CFO makes

this case factually unique as it indicates the use of the water rights once diverted onto

the reservation are not subject to state law oversight, and the allocation of water at

the Project is a duty of BIA under federal law. Id. Therefore, Ecology concedes that

"if, under federal law, additional lands were designated beyond the 120,000 acres

confirmed in the CFO, then it would seem that the Nation could serve those lands

even if they extend beyond what the court originally confirmed in the 1996 CFO.”

Id.

We accept Ecology's concession and remand to the superior court to strike

the acreage limitations in the FSOR and reiterate that federal law governs how

diverted water may be allocated within the Project.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

26

III. The RDA Appeal

Rattlesnake Ditch is an approximately two-mile-long, unnatural watercourse

from which RDA members divert water for their properties. Its water is diverted

from Rattlesnake Creek, a tributary of the Naches River. Members use the water

from Rattlesnake Ditch for many reasons, including irrigation and stockwater.

RDA is located in the Upper Naches Subbasin, or Subbasin 16. The referee

held multiple evidentiary hearings for the Upper Naches Subbasin between March

30, 1987 and March 22, 1989. CP at 132-33 (Report of Referee Re: Subbasin No.

16). The referee then submitted his report, which included his determination of water

rights in the Upper Naches Subbasin. As to irrigation, the referee concluded that "for

each irrigated acre, the Referee calculates the maximum instantaneous rate of

diversion to be 0.02 cubic foot per second [(cfs)] (9 gallons per minute).” Id. at 135

(Report of Referee Re: Subbasin No. 16). However, he also noted that claimants that

use ditches for delivery of water to their property, as RDA's members do, "require[]

the diversion of additional water for transportation in the ditch and conveyance loss.”

Id. In addition the referee noted that during the evidentiary hearings, Ecology and

most of the claimants, including RDA, did not provide expert testimony concerning

conveyance loss nor "any specific testimony concerning their ditch and the need for

conveyance water.” Id. The only expert who testified was Dr. Maddox, on behalf of

the Nile Ditch Association. He testified about conveyance loss in the Nile Ditch. In

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27

the absence of specific testimony of conveyance loss for the other ditches, "the

Referee [chose] to extrapolate Dr. Maddox's testimony to the other ditches being

used in the subbasin.” Id. at 135, 233.

As to the Nile Ditch, Dr. Maddox testified that

0.02 cubic foot per second per acre irrigated was the maximum that

could be applied to the land and that it would take a diversion of 0.033

cubic foot per second per acre at the headworks in order to get that

much water through the ditch system to the land, indicating a 60 percent

loss in the one and a half mile long ditch.[10]

Id. at 233. Accordingly, users diverting their water from a ditch of that size would

need their water duty increased in order to account for the loss. Specifically, in order

to get 0.02 cfs/acre to the property in question, one must be allowed a water right for

0.033 cfs/acre to account for the water lost in transit. Therefore, the calculation of

the cubic feet of water under the water rights is the number of irrigable acres

multiplied by 0.033 cfs.

According to the report, Ecology recommended that the referee confirm the

members' water rights. However, the members took exception "as it related to the

quantity of water allocated for irrigation purposes and asked that their

recommendations be amended to reflect the quantities of water testified to by expert

10 RDA notes that the Rattlesnake Ditch is approximately two miles long, and so it would

theoretically have even more conveyance loss than the Nile Ditch. Because Dr. Maddox is the

only expert who testified, even applying his calculation correctly results in an underestimate for

RDA and its members, but less so than not applying the calculation at all.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

28

witnesses on the first day of the hearing.” Id. at 264. Ecology then proposed the

quantities of water be modified to account for the expert testimony and filed an order

modifying its recommendation. The referee adopted the recommendation of Ecology

and recommended the court confirm the rights. The recommended rights are those

set forth in Ecology's modified report.

RDA and its members did not file exceptions to the referee's

recommendations. On April 8, 1993, after the court settled other issues unrelated to

this appeal, it entered the Upper Naches CFO. The CFO confirmed all of the water

rights recommended by the referee in the original report for the subbasin and the

supplemental report, which included recommendations after exceptions. As noted

above, RDA did not appeal then but, instead, waited until the court filed its final

decree in May 2019.

RDA and its members dispute the calculation of water rights and the failure

to account for conveyance loss. The members contend that the referee did not apply

Dr. Maddox's testimony and that their water rights should have been calculated as

follows:

Dep't of Ecology v. Acquavella, et al., No. 99373-4

29

Appellant RDA's Supplemented Opening Br. at 22. No party has filed any briefing

disputing this issue or RDA's calculations.

RDA relies on a previous case within this litigation, Acquavella V, in asking

this court to remand to correct its members' water rights. In that case, the superior

court similarly issued a report, heard exceptions, took more evidence, issued a

supplemental report, heard more exceptions, and issued a CFO. Acquavella V, 177

Wn.2d at 308. On appeal, AID argued that the superior court "made a mistake in

failing to confirm a water right to the Chancery in the 2009 CFO.” Id. at 348-49.

This court concluded that the parcel at issue "appear[ed] to have met the trial court's

Dep't of Ecology v. Acquavella, et al., No. 99373-4

30

requirements to be confirmed a water right” and "there is no evidence the trial court

found any reason not to confirm a right to all the parcels held by the Chancery.”

Id. at 349. We agreed that it is likely the superior court made a clerical error. Id.

The United States argued that because the omission occurred in the

supplemental report and AID and the Chancery did not act to correct the omission,

RAP 2.5(a) should prevent review. Id. However, this court held,

The Rules of Appellate Procedure are flexible to allow for the fair

administration of justice. This was an enormous adjudication, involving

thousands of parties. In this instance, we are not inclined to irrevocably

punish AID and the Chancery for its oversight, when the trial court made

the same oversight. AID asks that we remand to the trial court to correct

this error. Br. of AID at 34. Assuming an error did occur, as appears

likely, we direct the trial court to correct it on remand.

Id.

Similarly, the failure to properly calculate the conveyance loss in the RDA

members' water duties has occurred since the original report of the referee. We apply

the same reasoning as we did in Acquavella V not only as binding precedent but as

part of the present litigation. This is an enormous litigation and multiple parties and

actors involved did not catch this error: neither Ecology, the referee, the superior

court, nor RDA's members. However, all agreed that Dr. Maddox's testimony

should be incorporated. Given that no parties have expressed any objection on the

merits or demonstrated any tangible prejudice, we remand to the trial court for the

error to be corrected.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

31

IV. The Ahtanum Appeal

Ahtanum Creek flows along the northside boundary of the Yakama Nation

Indian Reservation. At some points Ahtanum Creek splits into other waterways. Of

most importance to this appeal are Bachelor Creek and Hatton Creek. AID disputes

the trial court's characterization of Bachelor Creek and Hatton Creek as irrigation

channels and seeks to open its headgates outside of irrigation season in order to use

its alleged nondiversionary stockwater rights. Further, AID asserts that the trial court

erred when it denied AID conveyance loss water and did not apply a standard water

duty throughout the Ahtanum Subbasin.

The United States and the Yakama Nation disagree and contend, for various

reasons, that AID is incorrect. Their main argument is that these issues were litigated

and decided in the federal Ahtanum cases.

We primarily agree with the United States and the Yakama Nation and hold

that because the Yakama Nation has a senior water right, AID is precluded from

opening its headgates outside of irrigation season. We also hold that the trial court

erred in categorizing Bachelor and Hatton Creeks as nonnatural watercourses and

applying the diversionary stockwater right. In addition, we hold that Bachelor and

Hatton Creeks are natural watercourses and that AID has a nondiversionary

stockwater right that is junior to the Yakama Nation's senior water right to divert all

the waters of Ahtanum Creek. Further, we affirm the superior court's holdings as to

Dep't of Ecology v. Acquavella, et al., No. 99373-4

32

conveyance loss and water duty as those issues were litigated in the federal Ahtanum

cases.

Native Americans have been making beneficial use of the waters in the

Yakima River Basin for centuries. In the second half of the 19th century, this country

encouraged the settling of Native lands through the policy of "Manifest Destiny.”

Acquavella II, 121 Wn.2d at 266. This stealing of Native lands led to conflicts

between settlers and the tribes and, ultimately, led to treaties and the establishment

of reservations to resolve the conflicts. Id.

In 1855, 14 confederated tribes and bands residing in the Yakima Valley (now

collectively the Yakama Nation) signed a treaty with the United States. Id.; Treaty

with the Yakama, June 9, 1855, 12 Stat. 951. "In reality the [Native Americans] had

little choice but to sign the treaties, giving up land in exchange for money. The

alternative was continued war and the likely loss of land without any compensation

whatsoever.” Acquavella II, 121 Wn.2d at 266.

Federal reserved water rights are those rights impliedly reserved in the

agreement between an Indian nation and the United States government

creating an Indian reservation. Also called Winters rights after the case

that first recognized them, such rights presume that when a reservation

was established by treaty, sufficient water was reserved to meet the

present and future needs of the reservation.

Acquavella V, 177 Wn.2d at 309 (citing Winters v. United States, 207 U.S. 564, 28

S. Ct. 207, 52 L. Ed. 340 (1908); Acquavella II, 121 Wn.2d at 274).

Dep't of Ecology v. Acquavella, et al., No. 99373-4

33

Although the Yakama Nation has presumed reserved water rights to meet present

and future needs of the Reservation from the Treaty with the Yakama Nation under

the Winters doctrine, some of those rights would later be taken without the consent

of the Yakama Nation.

As people settled in the Basin, they needed water and, in 1905, began taking

water from the Yakima River. Acquavella V, 177 Wn.2d at 312. Soon thereafter, the

water was overappropriated, and the United States sought to limit the amount of

water use. Id. As part of this reclamation effort, in 1908, an agent of the United States

(W.H. Code) entered into the "Code Agreement” with many white northside settlers

on behalf of the Yakama Nation. Id.; Ahtanum I, 236 F.2d at 329-30. This agreement

gave the northside settlers 75 percent of the flow of Ahtanum Creek and reserved

only 25 percent of the waters for the Yakama Nation. Acquavella V, 177 Wn.2d at

312; Ahtanum I, 236 F.2d at 329-30. An assistant to the secretary of the interior

approved the agreement on the secretary's behalf. Ahtanum I, 236 F.2d at 329. "The

agreement was drawn and signed, not only without consulting the [Yakama Nation],

but without legal advice.” Id. at 337.

In the 1920s, the Yakima County Superior Court later adjudicated water rights

for the northside settlers, some of whom signed the Code Agreement. See State v.

Achepol, 139 Wash. 84, 245 P. 758 (1926). On appeal, this court affirmed the socalled "Achepol Decree.” The Yakama Nation and the United States were not parties

Dep't of Ecology v. Acquavella, et al., No. 99373-4

34

and were not present to challenge the Treaty with the Yakama Nation's reserved

rights that had been taken from the Yakama Nation.

In 1947, the United States filed suit in federal court on behalf of the Yakama

Nation to quiet title to the Yakama Nation's rights to the waters of Ahtanum Creek

and seeking to invalidate the Code Agreement. Ahtanum I, 236 F.2d at 323. The trial

court dismissed the action, holding that neither the United States as trustee to the

Yakama Nation nor the Yakama Nation "had any right, title or interest in any water

of Ahtanum Creek.” Id. Although Winters had been the law for decades, the trial

court nonetheless held that no water rights were reserved by the 1855 treaty. Id. at

324. Further, the trial court held that the Code Agreement "gave the white owners

nothing that they did not already own.” Id.

On appeal, the Ninth Circuit held that under Winters, the Yakama Nation did,

in fact, reserve water rights for the present and future use of the Reservation. Id. at

325. In addition, the Ninth Circuit examined the Code Agreement in great detail. It

noted that it did not appear that Congress had been apprised of this agreement, as

Congress continued to appropriate water to the Reservation's irrigation system. Id.

at 331-32. It was estimated that the Yakama Nation's irrigation system would need

all of the waters of Ahtanum Creek by the year 1915, and so the Ninth Circuit

questioned whether the secretary of the Interior could have had the power to give

away water rights that the Yakama Nation might need. Id. at 337.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

35

The Ninth Circuit acknowledged how valuable the water rights were to the

Yakama Nation and criticized this nation's treatment of Native peoples and the

taking of their land and rights. Id. It reasoned,

With an opportunity to study the history of the Winters rule, as it

has stood now for nearly 50 years, we can readily perceive that the

Secretary of the Interior, in acting as he did, improvidently bargained

away extremely valuable rights belonging to the [Yakama Nation].

Perhaps the feature of the whole matter most worthy of criticism is the

apparent failure of the Secretary, before approving such an

arrangement, to obtain legal advice either from the Solicitor or from the

Department of Justice, as to the Validity or the advisability of the

proposed agreement. Viewing this contract as an improvident disposal

of three-fourths of that which justly belonged to the [Yakama Nation],

it cannot be said to be out of character with the sort of thing which

Congress and the Department of the Interior has been doing throughout

the sad history of the Government's dealings with the Indians and the

Indian tribes. That history largely supports the statement: "From the

very beginnings of this nation, the chief issue around which federal

Indian policy has revolved has been, not how to assimilate the Indian

nations whose lands we usurped, but how best to transfer Indian lands

and resources to non-Indians.”

Id.

Although noting our nation's history of taking what rightfully belongs to

Native Americans, the Ninth Circuit ultimately upheld the Code Agreement noting,

"The Secretary's mistakes, his poor judgment, his overlooking or ignoring of the

true measure of the [Yakama Nation's] rights, his lack of bargaining skill or

determination may add up to an abuse of his power, but do not negative it, or make

his act ultra vires.” Id. at 338.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

36

However, the court limited the Code Agreement such that "when the needs of

those parties to that agreement . . . were such as to require less than the full 75 percent

of the waters of the stream, then their rights to the use of the water was

correspondingly reduced, and those of the [Yakama Nation], in like measure,

greater.” Id. at 341. Therefore, any rights not "clearly shown to have been granted”

under the Code Agreement were reserved by the Yakama Nation. Id. The Ninth

Circuit remanded to further determine the water rights of the individual northside

users, as the Yakama Nation had proved the Reservation needed all of the water. Id.

at 340-42.

On remand claimants submitted their claims of water use. Ahtanum II, 330

F.2d at 900. The trial court concluded that the northside users' rights in the aggregate

included 75 percent of streamflow. Id. at 904. The Ninth Circuit disagreed and held

that the use limitations also included seasonal limitations on the use of the water. Id.

at 907-08. Thus, when the traditional irrigation season on the northside ended in

July, so did the water needs and, accordingly, the water rights. Id. at 909. As to the

water rights, the Ninth Circuit held,

It is ordered, adjudged and decreed that the waters of Ahtanum

Creek shall be and are hereby divided between the parties to this action

in the following manner and at the following times, to-wit:

Dep't of Ecology v. Acquavella, et al., No. 99373-4

37

I

From the beginning of each irrigation season, in the spring of

each year, to and including the tenth day of July of each such year, said

waters shall be divided as follows:

a. To defendants, for use of their lands north of Ahtanum Creek,

seventy-five per cent of the natural flow of Ahtanum Creek, as

measured at the north and south gauging stations, provided that the total

diversion for this purpose shall not exceed 46.96 cubic feet per second,

and provided that when the said measured flow exceeds 62.59 cubic

feet per second defendants shall have no right to the excess, except in

subordination to the higher rights of the plaintiff.

b. To plaintiff, for use of Indian Reservation lands south of

Ahtanum Creek, twenty-five per cent of the natural flow of Ahtanum

Creek, as measured at the north and south gauging stations; provided

that when that natural flow as so measured exceeds 62.59 cubic feet per

second, all the excess over that figure is awarded to plaintiff, to the

extent that the said water can be put to a beneficial use.

c. Plaintiff may divert such water from the south fork of Ahtanum

Creek as can be beneficially used for the individual diversion into the

Yakima Indian Reservation lying above the main Bureau of Indian

Affairs diversion; provided, however, that the water diverted to such

individual diversion shall be charged against and deducted from the

overall award set forth in "b” above.

d. To the plaintiff, for the lower Bureau of Indian Affairs

diversion, a daily diversion of water representing five per cent of the

natural flow of Ahtanum Creek as measured at the north and south fork

gauging stations. This award shall represent plaintiff's interest in the

return flow of the main stem of Ahtanum Creek, and the award to

defendants shall be conditioned upon plaintiff receiving this flow of

water at the lower Bureau of Indian Affairs diversion.

e. To defendants, all the rest of the return flow in the main stem

of Ahtanum Creek, and all the return flow in Hatton and Batchelor [sic]

Creeks.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

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f. Any water loss which may occur between the north and south

fork gauging stations, and the defendants' Hatton Creek diversion, is to

be absorbed by defendants; plaintiff being entitled to its full stated

percentage of the measured flow, and defendants taking the balance.

II

After the tenth day of July in 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.

Id. at 915 (emphasis added). This is referred to as the "Pope Decree.”

In the present case, the superior court incorporated the Pope Decree into its

memoranda and ultimately the Ahtanum CFO. AID appealed some of its issues with

the CFO for its subbasin, becoming the basis for Acquavella V. In that case, we held

that Ahtanum II was an adjudication of individual water rights on the northside

residents and is binding on the Acquavella proceedings. Acquavella V, 177 Wn.2d

at 326-29. On remand, the court issued an amended CFO. CP at 7531-35. After the

court issued its final decree, AID appealed, and the Yakama Nation cross appealed

on the stockwater issue of whether AID can divert water from Ahtanum Creek

through the headgates outside of irrigation season.

A. AID is not permitted to open its headgates outside of irrigation season because

of the Yakama Nation's senior water right to all of the waters of Ahtanum

Creek

AID regulates its water from the Ahtanum Creek to the Bachelor and Hatton

Creeks through headgates. Over the course of the litigation, there have been many

Dep't of Ecology v. Acquavella, et al., No. 99373-4

39

rulings on stockwater, but the issue in the present appeal pertains to nondiversionary

stockwater. In 2002, the superior court ruled in its "Report of the Court Concerning

the Water Rights for the Subbasin No. 23 (Ahtanum Creek)” that

[w]aters in natural watercourses in the subbasin shall be retained when

naturally available, in an amount not to exceed 0.25 cubic feet per

second (cfs), for stock water uses in such watercourses as they flow

across or are adjacent to lands, which are now used as pasture or range

for livestock. Retention of such water shall be deemed senior (or first)

in priority, except as that use is inconsistent with the Yakama Nation's

instream right for fish which carries a priority date of 'time

immemorial,' in which case the Nation's right shall have priority.

Regulation of these watercourses by the plaintiff shall be consistent

with such retention requirements.

Id. at 2095.

Subsequently, after the exceptions briefing, in the "Memorandum Opinion Re:

Ahtanum Creek Threshold Legal Issues,” the superior court concluded that Ahtanum

II did not resolve the issue of nondiversionary stockwater rights and set the issue for

an evidentiary hearing. The court did hold that diversionary stockwater rights were

covered by Ahtanum II and, thus,

no diversions for stock watering purposes may be made after July 10

through the end of the irrigation season and any use of water diverted

prior to July 10 for stock water purposes must be incidental to irrigation

and therefore within, and not in addition to, the quantities confirmed by

the Court for irrigation.

Id. at 3417.

AID sought to keep the headgates open after July 10 to allow for natural flows

through Bachelor and Hatton Creeks and for said flows to be considered

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40

nondiversionary stockwater. However, the superior court concluded that the use of

the headgates made it so that Bachelor and Hatton Creeks were being used as

irrigation channels. Further, keeping the gates open would substantially reduce the

flow in Ahtanum Creek to the detriment of the Yakama Nation, so the Pope Decree

dictated that the headgates remain closed. The court also noted,

Even though the creeks have been modified to function as irrigation

channels, they still are creeks[,] and lands through which the creeks

flow are riparian to those creeks and entitled to non-diversionary stock

water rights. After the gates are closed, any water that continues to flow

in Hatton and Bachelor Creeks is available for non-diversionary stock

watering, because no human effort is required to cause that water to be

there. Livestock can drink from those creeks if water is available,

without the landowner being confirmed a diversionary stock water

right.

Id. at 6733-34. These rulings were eventually incorporated into the Ahtanum CFO.

When the court issued the Ahtanum CFO, the Yakama Nation appealed the

priority date set forth in the nondiversionary stockwater ruling for lack of adequate

evidence as the priority date did not include the Yakama Nation's reserved water

rights under the 1855 Treaty with the Yakama Nation. The issue was uncontested,

and we remanded on this issue for "the entry of findings of fact on the priority dates

and further conclusions of law as appropriate.” Acquavella V, 177 Wn.2d at 305 n.1.

On remand, the court amended the nondiversionary stockwater ruling to read,

"Waters in natural watercourses in the subbasin shall be retained when

naturally available, in an amount not to exceed 0.25 cubic feet per

second (cfs), for stock water uses in such watercourses as they flow

across or are adjacent to lands, which are now used as pasture or range

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41

for livestock. Retention of such water shall be deemed senior (or first)

in priority, except as that use is inconsistent with the Yakama Nation's

instream right for fish which carries a priority date of 'time

immemorial' or as that use is inconsistent with the Yakama Nation's

treaty water rights for irrigation which carry a priority date of June 9,

1855, in which case the Nation's rights shall have priority. Regulation

of these watercourses outside of the Yakama Reservation by the

plaintiff or, in the case of watercourses on the Yakama Reservation,

regulation by the United States Bureau of Indian Affairs or the Yakama

Nation shall be consistent with such retention requirements.”

CP at 7535 (emphasis added, denoting the language added to the CFO on remand).

AID appealed and argues that the trial court erred when it refused to allow

AID to open the headgates at Bachelor and Hatton Creeks outside of irrigation

season to allow for natural flows for stockwater and to rehydrate the creeks before

irrigation season. The Yakama Nation cross appealed and argues that the trial court

erred when it held that Ahtanum II does not prevent AID from diverting water from

Ahtanum Creek through the headgates "between the end of the irrigation season and

April 15 of the next year although AID is barred from diverting after July 10 until

April 15.” Yakama Nation's Resp./Cross-Appeal Br. to AID at 2. The Yakama

Nation and the United States provide multiple arguments as to why AID should be

prevented from opening the headgates outside of irrigation season, we discuss each

in turn.

1. Standard of Review

"Appellate review of the decree shall be in the same manner as in other cases

in equity.” RCW 90.03.200. "Findings of fact are reviewed under a substantial

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42

evidence standard, defined as a quantum of evidence sufficient to persuade a rational

fair-minded person the premise is true.” Sunnyside Valley Irrig. Dist. v. Dickie, 149

Wn.2d 873, 879, 73 P.3d 369 (2003). The court defers to the findings of fact below

so long as this standard is met. Id. "Questions of law and conclusions of law are

reviewed de novo.” Id. at 880.

2. Yakama Nation's senior water right and Ahtanum II

We hold that the Yakama Nation has an irrigation water right to the waters of

Ahtanum Creek that is senior to all other parties. Under Ahtanum II, the Yakama

Nation has a right to divert all waters of Ahtanum Creek outside of irrigation season

and AID is precluded from diverting water after July 10.

AID argues that "neither the Ahtanum I nor the Ahtanum II decisions

addressed water use outside the irrigation season, and neither decision mandates that

AID manipulate or constrain natural stream flows.” Br. for Appellant AID at 14.

This is simply not the case. As discussed, in Ahtanum I, the Ninth Circuit first looked

to the 1908 Code Agreement, which purported to give 75 percent of flows to the

northside users with 25 percent reserved for the Yakama Nation. Although it did

affirm that the Code Agreement was binding, in Ahtanum II, the Ninth Circuit

adjudicated individual water rights. There was no "seasonal limit” to the water rights

adjudicated in Ahtanum II. The court looked to the testimony on the use to determine

when and how the northside users were beneficially using the water, and the court

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found that the northside users beneficially used the water only during irrigation

season. As a result, any time that the northside users were not traditionally and

beneficially using the waters of Ahtanum Creek (which was found to be all times

outside of irrigation season), the right to the waters was still reserved by the Yakama

Nation under the 1855 treaty. Accordingly, the Pope Decree indicates that "[a]fter

the tenth day of July in 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 (emphasis added). Thus, the Ninth Circuit adjudicated

the water rights for the entire year, not just irrigation season.

While the Pope Decree may not specifically mandate that AID is the one to

manipulate or constrain the natural flows of the creeks, it certainly allows for the

Yakama Nation to use and divert the water in Ahtanum Creek that would flow down

Bachelor and Hatton Creeks were the headgates open outside of irrigation season.

There is no reason why the superior court could not require AID to keep the

headgates closed in order for the Yakama Nation to take advantage of its water

rights.

AID rightfully conceded below, and reiterates its concession here, that the

Yakama Nation treaty rights for irrigation are senior to the junior rights of northside

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users to use nondiversionary stockwater.

11 This senior right is memorialized in the

2019 amended Ahtanum CFO and, therefore, the final decree. "Because junior rights

holders take their water rights subject to the rights of senior rights holders, in times

of scarcity the junior rights holders suffer first and suffer the most.” Lummi Indian

Nation v. State, 170 Wn.2d 247, 265, 241 P.3d 1220 (2010). Therefore, any junior

right to nondiversionary stockwater comes at the expense of the Yakama Nation's

senior right.

In its reply, AID agrees that it has a junior right but contends, without citation,

that "the junior user may continue to use its water right unless and until the senior

water right holder is denied the use of its water.” Reply Br. of Appellant AID to

Resp. Br. of U.S. & Resp. Br. of Ecology at 2. However, "[j]unior rights holders

always take their water rights subject to the risk that there may be no water to fulfill

those rights.” Lummi Indian Nation, 170 Wn.2d at 267.

Further, in this case, any diversion of water through the Bachelor and Hatton

headgates would result in the Yakama Nation's diverting less than all the waters of

Ahtanum Creek that it can put to beneficial use. Evidence in the record shows that

Yakama Nation is "operating on a real thin margin after July 10th.” CP at 3797-98.

Further, a small diversion of up to 5 cfs would result in "a sizable reduction in

11 In the next section we conclude that AID does have a nondiversionary stockwater right

to the natural flows of Bachelor and Hatton Creeks but that this right is junior to the Yakama

Nation's senior treaty rights.

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deliveries to our farmers, and it would also make us quit diverting water probably

two to four weeks sooner than we do now. On any given year, it's probably going to

shorten the season by two to four weeks.” Id. at 3797. There is simply not enough

water in Ahtanum Creek to allow for both AID to open the headgates to exercise a

nondiversionary stockwater right and for the Yakama Nation to exercise its senior

reserved irrigation rights. Accordingly, we hold that the superior court did not err in

requiring AID to keep the headgates closed outside of irrigation season.

In its reply, AID does not challenge this evidence but, instead, pivots to the

argument that AID patrons' have a nondiversionary stockwater right "when flows

permit” that does not necessarily impair the Yakama Nation's senior right. Reply

Br. of Appellant AID to Resp. Br. of U.S. & Resp. Br. of Ecology at 3. This is true;

however, given the scarcity of the water in this subbasin, it is unlikely that there will

be water in Ahtanum Creek in excess of what the Yakama Nation can beneficially

use. See Acquavella V, 177 Wn.2d at 306 ("In the spring of 1977, meteorologists

predicted record drought for the Yakima River Basin,” leading to the filing of this

water rights adjudication.). Nonetheless, in theory it could. Therefore, in the next

section, we analyze the issue of nondiversionary stockwater and conclude that AID

does have a right to nondiversionary stockwater that is junior to the Yakama

Nation's water rights.

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3. Natural watercourse and nondiversionary stockwater

As to the issue of nondiversionary stockwater, the parties also disagree as to

whether Bachelor and Hatton Creeks are artificial or natural watercourses. The trial

court held that the northside users had a right to nondiversionary stockwater in

Bachelor and Hatton Creeks to the extent that there is any natural flow with the

headgates closed. Because under Ahtanum II there is no right to diversionary

stockwater outside of irrigation season and because the opening and closing of the

headgate requires human effort, the court held that the northside users do not have a

right to diversionary stockwater from opening the headgates.

AID argues that the trial court erred when it characterized Bachelor and

Hatton Creeks as "artificial water courses.”12 Br. for Appellant AID at 11. It

contends that because the water rights were confirmed in 1908 when there were no

headgates, they are entitled to natural streams without the headgates. It further

contends that the use of headgates does not mean that Bachelor and Hatton Creeks

"are no longer natural water courses.” Id. at 12. AID provides no citation or

definition for what a "natural water course” is as opposed to an "artificial” one, and

whether the addition of the headgates made the once natural watercourses artificial.

12 Even with AID's citation to the record it is unclear where in the record the trial court

referred to the watercourses as "artificial.” However, the record does indicate that diverting water

now requires human intervention, which will be discussed and which seems to indicate that the

court concluded that the watercourses are no longer natural because of the addition of the

headgates.

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The Yakama Nation, therefore, contends that AID has failed to show that the trial

court was incorrect in its ruling.

Yakama Nation cites to cases that show that other means of artificial

waterways are diversionary (as opposed to nondiversionary), but not that adding an

artificial headgate makes a natural creek artificial. See, e.g., Pays v. Roseburg, 123

Wash. 82, 84, 211 P. 750 (1923) (using constructed ditches and flumes to divert

water, eliminating former natural flow, was a diversion from original riparian lands).

In contrast to irrigation ditches and flumes, which are themselves dug by humans,

here, Bachelor and Hatton Creeks are the original riparian lands and part of the

geography of the Basin. There is no dispute that they have been artificially modified

with headgates for the purposes of irrigation and fish screens to prevent fish from

entering the creeks. Bachelor Creek and Hatton Creek both contain headgates where

they divert from Ahtanum Creek. Since the Hatton Creek headgate is no longer

operational, Ahtanum Creek water is piped to Hatton Creek by way of Bachelor

Creek.

When closed, the headgates prevent water from entering Bachelor and Hatton

Creeks and instead cause the water to remain in Ahtanum Creek. Because the

headgates prevent water from entering Bachelor and Hatton Creeks from Ahtanum

Creek, it is logical that flows in the creeks through the open headgates are not a true

diversion but instead are the natural flows of Bachelor and Hatton Creeks. However,

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it is also true that to open the headgate and allow for water flows requires human

effort (and is thus a diversion under the court's ruling).

The Yakama Nation dedicates briefing to the substantial evidence to support

the trial court's ruling, which in this case means proof that water flows by the

addition of headgates is not natural, is controlled by human intervention, and is an

irrigation channel. See Yakama Nation's Resp./Cross-Appeal Br. to AID at 22-25.

AID does not address the Yakama Nation in its reply, nor does it seem to address

any of these issues in its briefing. But no one is disputing that the headgates

themselves are not natural and are controlled by human intervention. Accordingly,

the true issue is whether the addition of the headgate makes a previously natural

watercourse artificial.

In his treatise, Clesson S. Kinney writes,

To maintain rights in a [natural] water course it must be a made to

appear that the water usually flows in a certain direction and by a

regular, natural channel, with a bed, banks, or sides. . . . In its legal

sense it consists of a bed, banks, sides, or walls, and a current of water.

It is a living stream confined to a channel, usually flowing in a

particular direction, and usually discharging itself into some other

stream or body of water, but not necessarily flowing all of the time, for

there are water courses which are sometimes dry. It is a natural, living

stream, and includes rivers, creeks, brooks, runs, and rivulets.

1 CLESSON S. KINNEY, A TREATISE ON THE LAW OF IRRIGATION AND WATER RIGHTS,

§ 301 (2d ed. 1912) (emphasis added) (footnote omitted). Similarly, Black's Law

Dictionary defines "watercourse” as "[a] body of water, usu[ally] of natural origin,

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flowing in a reasonably definite channel with bed and banks. [ ] The term includes

not just rivers and creeks, but also springs, lakes, and marshes in which such flowing

streams originate or through which they flow.” BLACK'S LAW DICTIONARY 1907

(11th ed. 2019) (emphasis added). It defines "natural watercourse” as "[a]

watercourse with its origin in the forces of nature.” Id. We have held that

"[a] natural watercourse, insofar as riparian rights be concerned, and as related in

appropriate instances to drainage rights, is defined as a channel, having a bed, banks

or sides, and a current in which waters, with some regularity, run in a certain

direction.” King County v. Boeing Co., 62 Wn.2d 545, 550, 384 P.2d 122 (1963).

Further, in reference to the creek at issue, in Rigney v. Tacoma Light & Water Co.,

9 Wash. 576, 579, 38 P. 147 (1894), we opined,

From the time of the earliest settlement of the country it has flowed in

a definite and easily distinguished channel, and was seldom, perhaps

never, dry prior to the commission of the acts complained of.

Having a bed, banks and current[,] it is a natural water course, even

although it may, at times, be dry.

(Emphasis added.)

Natural watercourses are "distinguished from artificial water courses as being

formed entirely by Nature, while artificial watercourses are formed by the works of

man.” 1 KINNEY, supra, § 301. Artificial watercourses

include all man-made ditches, canals, tunnels, flumes, or other artificial

conduits constructed for the purpose of conveying water. They may be

constructed for the purpose of conveying water to the place of use, as

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in the case of irrigation; or, upon the other hand, they may be

constructed to convey water away from the land, as in the case of

drainage. Their principal characteristic is their entire artificial

construction.

1 KINNEY, supra, § 316 (emphasis added).

Similarly, Black's Law Dictionary defines an "artificial watercourse” as "[a]

man-made watercourse, usu[ally] to be used only temporarily. [] If the watercourse

is of a permanent character and has been maintained for a sufficient length of time,

it may be considered a natural watercourse to which riparian rights can attach.”

BLACK'S LAW DICTIONARY 1907 (11th ed. 2019). These definitions refer to the types

of artificial watercourses in which the watercourse itself is artificial, such as the

flumes and ditches in Pays, 123 Wash. 82, but not the addition of artificial

improvements to control the flow of water in a watercourse created by nature.

We have not previously addressed whether adding a headgate to a natural

watercourse changes that watercourse from natural to artificial. However, in Rigney,

we held that the creek at issue was still a natural watercourse, even though "its

channel has been deepened artificially within the last ten or fifteen years for the

purpose of draining the swamp from whence it flows.” 9 Wash. at 579.

The Supreme Court of Nebraska and the Supreme Court of California have

also opined on artificial changes to a natural watercourse, and we look to these courts

for further guidance.

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In Northport Irrigation District v. Jess, 215 Neb. 152, 156, 337 N.W.2d 733

(1983), the Supreme Court of Nebraska held that the creek at issue was still a

"natural watercourse” even though "a portion of the banks . . . had been repaired.”

It reasoned, "A natural stream or watercourse does not lose its natural character

as such merely by artificial improvements.” Id. at 156-57 (citing 1 KINNEY, supra, §

301). Further, when defining a natural watercourse, the Supreme Court of California

opined, "Alterations to a natural watercourse, such as the construction of conduits[13]

or other improvements in the bed of the stream, do not affect its status as a 'natural'

watercourse.” Locklin v. City of Lafayette, 7 Cal. 4th 327, 345, 867 P.2d 724, 27 Cal.

Rptr. 2d 613 (1994).

While these cases address artificial alterations to the bed and the banks of the

stream, it logically follows that artificial improvements to a natural watercourse that

in some way help or change the flow do not transform a natural watercourse into an

artificial one. Here, the improvements to Bachelor and Hatton Creeks were

headgates and a pipe to control the flow of water for the purpose of irrigation. But

the creeks themselves are not artificial or constructed in the same way that irrigation

ditches (such as the Rattlesnake Ditch), flumes, or canals are constructed. While it

is true that the headgate requires human intervention and is thus an artificial addition,

13 A "conduit” is "a natural or artificial channel through which water or other fluid passes

or is conveyed.” WEBSTER'S,supra, 474. Webster's also lists "pipe” and "aqueduct” as synonyms.

Id.

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the creeks themselves, and the natural flows within them without the headgates, are

not. When the headgates are open, as would be the natural state of the creeks, the

water that flows is not "diverted” from Ahtanum Creek, it flows naturally. While the

creeks may function as irrigation channels, the creeks themselves are natural

watercourses. This is in line with our own definition of a natural watercourse in

Boeing, 62 Wn.2d 545.

Accordingly, we hold that AID has a nondiversionary stockwater right to the

flows of Bachelor and Hatton Creeks with the headgates open. However, as

discussed, this right is junior to the Yakama Nation's right to divert all waters from

Ahtanum Creek. Until and unless the Yakama Nation is no longer making beneficial

use of all the waters of Ahtanum Creek outside of irrigation season, AID cannot open

the headgates outside of irrigation season to exercise its nondiversionary stockwater

right.14

4. Rehydrating the creeks prior to irrigation season

AID also contends that it should be allowed to open the headgates to

"rehydrate” the creeks because closing the headgates outside of irrigation season

14 AID further argues that refusal to allow AID to open the gates violates chapter 90.22

RCW (the minimum water flows and levels act of 1969). But, as the Yakama Nation succinctly

curbs this argument, state law cannot be used to impair federal water rights and the enacted state

laws do not affect existing rights. Yakama Nation's Resp./Cross-Appeal Br. to AID at 30 (citing

CP at 1040 (Yakama Nation CFO)); RCW 90.22.010, .030 ("The establishment of levels and flows

pursuant to RCW 90.22.010 shall in no way affect existing water and storage rights and the use

thereof .”).

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"essentially requires AID to dewater Bachelor and Hatton Creeks.” Br. for AID at

13. But AID does not provide any authority or citation for a water right to

"rehydrate” the creeks or how it is different from the nondiversionary stockwater

right it seeks. Further, this is specifically where AID argues that Ahtanum I and II

did not adjudicate water rights outside of irrigation season. As discussed above, this

is not the case.

The Yakama Nation urges this court to disregard the assertion of a right to

"rehydrate” the creek as AID does not support the assertion of the right. Yakama

Nation's Resp./Cross-Appeal Br. to AID at 34 (citing In re Registration of Elec.

Lightwave, Inc., 123 Wn.2d 530, 545, 869 P.2d 1045 (1994) ("An appellate court

need not decide a contention not supported by citation to authority.”)). Further, when

AID urged the trial court that northside users were entitled to "'recharge its

conveyance facilities'” in early spring, the court gave AID the opportunity to provide

evidence of this right. CP at 6732. "That evidence was not provided.” Id. AID

provided certificates indicating that irrigation season began April 1, but did not

provide any evidence of beneficial use of the water by its patrons. Id. at 6733. AID

failed to show that it is entitled to any separate right to rehydrate Bachelor and Hatton

Creeks such that it should be allowed to keep the headgates open outside of irrigation

season.

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We hold that AID is not entitled to open the Bachelor and Hatton Creeks

headgates to rehydrate the creeks because it has not established a water right that

would allow for such use. Further, as discussed above, even if it had established a

water right, it would be junior to the Yakama Nation's senior right to all waters of

Ahtanum Creek outside of irrigation season.

B. Water duty was adjudicated in Ahtanum II and is binding on this adjudication

AID contends that the superior court "improperly limited AID patrons' water

duty” because it "improperly relied on the federal Ahtanum litigation to conclude

that the issue of water duty had already been decided.” Br. for Appellant AID at 15.

In contrast, the United States and the Yakama Nation both contend that Ahtanum II

did quantify AID patrons' water duty. See Yakama Nation's Resp./Cross-Appeal Br.

to AID at 45; U.S.' Br. in Resp. to AID at 46-47. We agree with the Yakama Nation

and the United States.

As noted above in footnote 4,

"[Water duty] [is] that measure of water, which, by careful management

and use, without wastage, is reasonably required to be applied to any

given tract of land for such period of time as may be adequate to

produce therefrom a maximum amount of such crops as ordinarily are

grown thereon. It is not a hard and fast unit of measurement, but is

variable according to conditions.”

Dep't of Ecology v. Grimes, 121 Wn.2d 459, 469, 852 P.2d 1044 (1993) (first

alteration in original) (quoting In re Application of Water Rights of Steffens, 756

P.2d 1002, 1005-06 (Colo. 1988)).

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This court held, and reiterated multiple times in Acquavella V, that the federal

Ahtanum cases were an adjudication of the northside users' water rights. In Ahtanum

I, the Ninth Circuit remanded to the trial court for the northside users to set forth

their claims to the waters of Ahtanum Creek. 236 F.2d at 339, 341-42. In Ahtanum

II, the Ninth Circuit explained that on remand the northside users

filed numerous answers setting forth, as we had directed, "who these

water users are, the lands they claim to have the right to irrigate, and

how they deraigned their titles to any water rights,” and generally set

forth their claims to water rights in the stream as to the various dates of

acquisition.

330 F.2d at 900. They called witnesses and gave testimony as to the use of the

Ahtanum Creek waters. Id. at 901. The court appointed a special master, and the

special master determined "that the duty of water for supplying these lands was 1/2

miner's inch per acre during the irrigation season.” Id. at 903. The special master

then calculated the "allowable diversion requirements” of the northside users to be

57.18 cfs. Id. The Ninth Circuit ultimately determined the total diversion allowed to

be 46.96 cfs. Id. at 915.

AID repeatedly contends both that it "did not have notice that the issue of

water duty would be litigated” and that "Ahtanum II court did not allow claimants to

litigate the issue” of water duty. Br. for Appellant AID at 15. However, it provides

no evidence or citation that this is the case and, instead, cites to memoranda in the

record that, when describing the Ahtanum case law, does not refer to the rulings on

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water duty. See id. at 15-16 (citing CP at 2018-19 (Report of Ct. Concerning Water

Rights for Subbasin No. 23 (Ahtanum Creek)), 3414-15 (Mem. Op. Re: Ahtanum

Creek Threshold Legal Issues)). It is unclear how, on a remand to determine water

rights of the northside users, AID was unaware that water duty (or the quantification

of the northside users rights) was at issue in the case. Regardless, what remains is

that the Ahtanum litigation determined the water duty, and Acquavella V determined

that Ahtanum II was an adjudication of water rights.

AID further argues that the Ahtanum II court indicated that Washington was

in a better position to adjudicate water rights claims under state law. Id. at 16 (citing

Ahtanum II, 330 F.2d at 911-12). While the Ninth Circuit did indicate that

Washington has an established system and "[a] federal district court is not

necessarily possessed of any better machinery,” it nonetheless adjudicated the rights.

Ahtanum II, 330 F.2d at 911-12. That federal adjudication is binding on this one.

C. Conveyance loss is included in water duty and, therefore, was also adjudicated

in Ahtanum II

AID also contends that the superior court "improperly denied AID's claim for

conveyance water” and that it has a greater loss because it is not a piped district. Br.

for Appellant AID at 14. In contrast, both the Yakama Nation and the United States

contend that conveyance loss is also precluded by Ahtanum II as part of the

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quantification of the water rights in that case.15 Yakama Nation's Resp./CrossAppeal Br. to AID at 47-48, U.S.' Br. in Resp. to AID at 44. We agree with the

Yakama Nation and the United States and hold that conveyance loss is a part of

water duty and was thus adjudicated in Ahtanum II.

In Acquavella V, this court reiterated that as part of the Ahtanum litigation,

the northside users were required to show that the water "was beneficially applied

to the land.” 177 Wn.2d at 326. Beneficial use includes an analysis of the purpose

of the water and the measure of the water right. Grimes, 121 Wn.2d at 468. To

determine the measure of water for beneficial use, the court looks to water duty and

waste. Id. In terms of waste, "[w]hile an appropriator's use of water must be

reasonably efficient, absolute efficiency is not required.” Id. at 472. Reasonable

efficiency thus allows for some conveyance loss. Id.

In Grimes, this court indicated that conveyance loss is part of water duty. We

noted that the referee in that case "applied an efficiency factor [to the amount of

water needed to irrigate] and increased this water duty to 2.5 acre feet per acre per

year.” Id. at 470. Further, we held there was sufficient evidence for the referee to

have "confirmed in the Grimeses a water right with one-fourth conveyance loss for

15 The United States also argues that AID did not raise the issue below and, therefore, is

precluded from bringing the issue on appeal. U.S.' Br. in Resp. to AID at 43 (citing State v.

Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011)); see also RAP 2.5(a) ("The appellate court

may refuse to review any claim of error which was not raised in the trial court.). AID does not

indicate where in the record it raised this issue.

Dep't of Ecology v. Acquavella, et al., No. 99373-4

58

a total of 1.5 cubic feet per second.” Id. at 472-73. Therefore, it follows that

conveyance loss is part of the water right and can be determined as part of the water

duty. The Ninth Circuit has also opined that "[t]he major conceptual tool for

implementing beneficial use is the water duty, which is the amount of water an

appropriator is entitled to use, including a margin for conveyance loss.”

United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 854 (9th Cir. 1983)

(emphasis added).

We thus hold that because water duty includes conveyance loss, the

conveyance loss was adjudicated in Ahtanum II.

We reverse in part and affirm in part as follows. We hold that parties may

appeal a partial final judgment under RAP 2.2(d) and CR 54(b), but because it is

permissive, a failure to do so does not make an appeal from the actual final judgment

untimely. We hold that res judicata does not bar AID from appealing issues in the

final decree not previously appealed in the Ahtanum CFO. We hold that the Yakama

Nation Appeal is timely because the parties are not appealing the Yakama Nation

CFO but, instead, are appealing a conflict between the FSOR and the Yakama Nation

CFO.

We reverse the superior court’s acreage limits on the Yakama Nation’s water

rights to divert water within the Project and remand to strike said limits.

Dep’t of Ecology v. Acquavella, et al., No. 99373-4

59

We reverse the superior court’s quantifications of conveyance loss as to RDA,

and remand for proper quantification using Dr. Maddox’s expert testimony.

We affirm the superior court’s holding that AID is not permitted to open the

Bachelor and Hatton Creeks headgates outside of irrigation season because of the

Yakama Nation’s senior water right to all of the waters of Ahtanum Creek pursuant

to the adjudication in Ahtanum II. However, we reverse the superior court and hold

that AID has a junior, nondiversionary stockwater right to the waters of Ahtanum

Creek that would naturally flow in Bachelor and Hatton Creeks with the headgates

open. This right, however, is junior to the Yakama Nation’s water right, and AID

cannot open the headgates to exercise this right if it would interfere with the Yakama

Nation’s senior water right.

We affirm the superior court’s holding as to the conclusion that water duty

was litigated and adjudicated in Ahtanum II. And finally, we affirm the superior

court’s denial of conveyance loss to AID as conveyance loss is a part of water duty

and the water rights adjudicated in Ahtanum II