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Legally Speaking

 

Issue: October, 2009
Author: Hon. Gary P. Hartman

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The Big Horn River General Stream Adjudication

“Tis better to be upstream with a shovel than downstream with a right,” so goes the old adage of the West. Not true in the Big Horn River Stream Adjudication which has been one of the longest running court cases in Wyoming. Commenced on January 24, 1977, two days after the Wyoming Legislature passed the enabling legislation, the State of Wyoming brought suit in the 5th Judicial District Court in Worland. The purpose was to institute an action to determine the nature, extent and relative priority of water rights of all persons on the river which included Indian reserved rights, federal reserved rights and more complexing, the individual water rights of hundreds of irrigators on the system.

Some initial problems of the case were how to handle this complex case, who was entitled to notice and who or what entity was going to foot the bill for this costly litigation. Such were the problems that confronted the first judge to handle the case. Judge Joffee began this monumental task by bringing several of the key players together to hammer out a case plan for management and procedure. It was decided that the litigation should be addressed in three phases: Phase I would determine the Indian reserved right, Phase II would determine the federal reserved rights and Phase III would address the water rights of all other irrigators on the Big Horn. Subsumed within these phases were a multitude of issues such as quantifying “practicable irrigable acres” for the Indian reserved rights, determining the criteria for a valid “Walton Right” and managing the River to insure delivery of water to Indian as well as other irrigator’s head gate.

To assist the court, a series of Special Masters were appointed to hold hearings, issue Findings of Fact and to keep the litigation moving forward. The first of these Special Masters was former U.S. Representative Teno Roncolio. Master Roncolio was instrumental in the Phase I work and recommended to Judge Joffee the “practicable irrigable acres” as well as reserved storage rights of the Arapahoe and Eastern Shoshone Tribes. While not accepting all of Master Roncolio’s findings, Judge Joffee quantified the “practicable irrigable acres” on the Wind River Indian Reservation and awarded the Northern Arapahoe and Eastern Shoshone Tribes almost 500,000 acre feet of water. With the announcement of that decision, Judge Joffee retired in 1983 and the case was assigned for a short period to the State District Judge Alan Johnson. Judge Joffee’s decision was appealed, the first of seven, to the Wyoming Supreme Court and ultimately to the U.S. Supreme Court.

In 1986, the “Big Horn Case” as it came to be known, was assigned to me, Judge Joffee’s replacement. I directed the case until my retirement in 2008. During that 22 year period, the case moved slowly forward with numerous hearings involving a multitude of attorneys. It appeared to the court that there was no incentive to bring the case to a resolution and obtain a final decree. Finally in desperation, the court ordered the parties to meet without their attorneys as it appeared the case would not move forward without the technical people, the engineers and hydrologists, solving many of the factual issues such as inspections, water monitoring and head gate usage. Once this occurred, the case lost much of its previous acrimony and it began to move forward.

The main parties involved in the case were the two Indian tribes, the U.S. Department of Justice who represented the Bureau of Land Management, the National Park Service and the Forest Service, the State of Wyoming, Irrigation Districts, municipalities and thousands of individual irrigators. Depending upon what issue was before the court, the alignment of those parties shifted. For example, on one issue the Justice Department and the tribes might align on one side against the private irrigators and the State of Wyoming, while on another issue the Justice Department might be aligned with the State of Wyoming.

With an end in sight, perhaps in 2009, the Court began to look towards wrapping up the case but many problems still remained. What, for example, should the Final Decree look like? Should it contain more than just a tabulation of the determined water rights? Should the court retain jurisdiction if any future issue should arise, and what should be done with the monumental boxes of Orders, Notices, Submissions, maps and other important documents? A group of the attorneys met several times under the direction of John Thorsen, a retired Special Master from Arizona, to begin drafting a Final Decree that would not bring on yet another appeal. The watchword for that group became “Less is More,” meaning that the fewer items placed in the Final Decree, the better off would be all parties. They did agree that the Court should retain jurisdiction of the case for future issues but that many of the duties the Court assumed with the case would revert back to the State of Wyoming’s State Engineer’s Office and the Board of Control.

One large and potentially costly item of final business was the preservation of the entire record in the case. A system was needed that would provide access to all Orders, maps and Notices for the entire case to not only lawyers and irrigators but to the general public. In that vein, the Court sought and received substantial funding from the Wyoming Legislature to design and implement a system for storage and access. The Special Master, Ramsey Kropf, and Administrative Assistant Gayla Mead joined with the IT people from the Wyoming Supreme Court and from the State Engineer’s Office and have designed a working document that makes the entire record of the Big Horn River Stream Adjudication case available on the Internet. That record can be accessed by name, permit number, ditch or legal description.

The case of the adjudication of the Big Horn River was costly, extensive and lengthy, but it determined the legal water rights for thousands of individuals, Indian tribes and the U.S. Government as landowners. While no entity has determined the total cost of this project, suffice it to say that it was hundreds of millions of dollars in time, effort and expense.

Hon. Gary P. Hartman earned a Bachelor of Arts in Political Science (1969) and a Juris Doctorate (1972) from the University of Wyoming. He was in private practice in Greybull, Wyoming, from 1973 – 1983 before being appointed to the District Court bench in the Fifth Judicial District (Worland). He retired from the bench in 2008 and currently serves as the Juvenile Justice Policy Analyst for the Governor’s office.

Copyright © 2009 – Wyoming State Bar

     

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