UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON'
                                                                       187 R Supp. 2d 1273; 2002 U.S. Dist.
                                                             February 27, 2002, Decided Judge Owen Panner
BACKGROUND
In this action, the Court declared the existence, nature, .scope and priority of the reserved Indian water rights of the Klamath Tribes, but left the quantification of those rights to the State of Oregon's Klamath Basin Adjudication ("KBA"). See, United States v. Adair; 478 F. Supp. 336 (D. Or: 1979) ("Adair I"). The Court entered a Declaratory Judgment on April 21, 1980, which was affirmed in United States v. Adair; 723 F.2d 1394 (9th Cir: 1983) ("Adair II"), cert. denied sub nom, Oregon v. United States, 467U:S. 1252,82L.Ed.2d841,104S.Ct. 3536 (1984). This Court retained continuing jurisdiction   of this matter "for the purpose of enabling the parties or their successors in interest to apply to this court at any time for such orders and directions as may be necessary or appropriate for the construction and effectuation of this judgment, for the modification of any of the provisions hereof, and for the enforcement of compliance with this judgment." Declaratory Judgment, P 15.

Pursuant to Paragraph 15 of the Declaratory Judgment, Plaintiffs filed motions  for exercise of this Court's cotinuing jurisdiction. A dispute has arisen among the parties in the KBA over the proper interpretation of the Declaratory Judgment and how to effectuate rulings in this case to quantify the Tribe's water rights in the state proceeding. The motions were granted, and this Court is exercising its continuing jurisdiction to determine two narrow issues: (1)  whether the Klamath Tribes have a water right to support reserved gathering rights; and (2) whether and to what extent the "moderate living" standard applies in quantifying the Tribes' water rights.

The State of Oregon resisted the motion for exercise of the Court's jurisdiction on the ground that deference to the state adjudication was appropriate under the Colorado River doctrine. The Court rejected that argument. Opinion and Order, August 9,2001, dkt. no. 2359. Thereafter, the State of Oregon did not participate m the current proceedmg, and took no position with regard to the merits of the substantive issues addressed in this opinion.

II. Discussion

A. The Gathering Right

The Klamth Tribes have reserved gathering rights, along with supporting water nghts. The 1980 Declaratory Judgment explicitly holds that the tnbal water nght included water for gathenng purposes. Paragraph 3 of the Declaratory Judgment provides: " In creating the Reservation by treaty in 1864 the Government reserved land from the public domain to preserve the Tribe's hunting, fishing, trapping and gathering rights and to encourage agriculture.  The treaty granted the Tribe an implied right to as much water on the Reservation as was necessary to fulfill these purposes."  Paragraph 11 of the Declaratory Judgment provides: "The priority date of the Tribe's hunting fishing, trapping and gathering rights, and their water rights necessary to preserve these hunting, fishiqg, trapping and gathering rights is time immemorial.  "The Court could not have been more clear in articulating its holding that gathering rights, and supporting water rights, are reserved to the Tribe. Moreover, the plain language of the 1864 Treaty, and a commonsense reading of Adair I & II, and United States v, OWRD, 774 F: Supp, 1568 (D, Or 1991), affd and modified, 44 F.3d 758 (9th Cil: 1994), support this position. The Ninth Circuit's use of "hunting and fishing" language as a shorthand phrase shall not be construed to eliminate the Tribes' right to water for gathering purposes. There is nothing in Adair I or Adair II that is inconsistent with the Declaratory Judgment on this issue. Accordingly, the Klamath Tribes' water rights include a right to water to support resources the Tribes gather, in addition to the resources they hunt, fish, and trap.

B. Legal Standard for Measuring Water Rights

The parties dispute how to apply the legal standard for quantifying the Tribes' water rights. The Oregon Department of Justice ("ODOJ") attempted to provide legal advice to the Adjudicator in the KBA on this issue,  but admitted it was uncertain how to apply the relevant standards. The parties dispute not only what standard should be applied, but how it should be applied, and  which party has the burden of proof. The primary dispute revolves around applying the "moderate living" doctrine e announced in Adair II. The parties also struggle to interpret the phrase ''as currently exercised" from Adair II.

At the outsett, it is  worth noting that any arguments would have the practical effect of quantifying the Tribe's reserved water right at a level that would not support productive habitat is rejected. This would result in abbrogating the Tribes' treaty rights to hunt, fish, gather, and trap on the reservation lands. The Ninth Circuit has recently confirmed, in the context of the Klamath Tribes' water rights, that "only Congress can abrogate Indian treaty ights, see United States v, Dion, 476 US. 734, 738, 90 L,Ed, 2d 767,106 S, Ct, 2216 (1986), and it has not done so here." Klamath Water Users Prot, Ass'n v, Patterson, 204 aF:3d 1206,1213 (9th Cir.), cert. denied, 531 US, 812,148 - L, Ed, 2d 14, 121 S. Ct, 44 (2000), Moreover, both Adair I and Adair II announce that water must be maintained at some level on the land to fulfill the purpose of the reservation. In Adair II, the Ninth Circuit could not have been more clear that it intended to "prevent other appropnators from depleting the streams and waters below a protected level in any area where the non-consumptive[water] right applies." Adair II, 723 F.2d at 1411,

With these arguments put to rest, this Court must reconcile the quantification standard announced in Adair 1, with the "moderate living" standard announced in  Adair II. The two standards are not in conflict and what Defendants have apparently lost sight of is that the initial quantification of water rights is a separate analysis from the "moderate jiving" standard. The adjudicator is called upon to first quantify the Tribes' water rights to establish an allocation of water to fulfill the purpose of the reservation. Only after the quantification stage can the "moderate living" doctrine be considered to possibly adjust the quantification.

1. Step One - Quantifying the Water Right 

Adair I announced the legal standard for quantifying the Tribe's water rights by holding:

The Indians are still entitled to as much water on the Reservation lands as they need to protect their hunting and fishing rights. If  the preservation of these nghts requires that the Marsh be maintained as wetlands and that the forest be maintained on a sustained-yield
basis, then the Indians are entitled to whatever water is necessary to achieve those results.

 Adair I, 478 F. Supp. at 345-46. Adair II and the "mod- erate living" standard did not change this threshold quantification standard.

The quantification standard does not Involve an analysis of any actual beneficial use of the water, or any actual harvest of treaty protected resources on a fixed day or time m history. Adair II, 723 F.2d at 1406 n. 11,. see also Arizona v. California, 373 US. 546, 598, 10 L. Ed. 2d 542, 83S. Ct. 1468(1963) "Arizona I") reserved water rights measured by "practicably imgable acres to fulfill treaty purposes, and not based upon number of Indians on reservation or actual use of land). Instead, the focus must be on fulfilling the purpose of the reservation. Id.

Adair II held that there were two primary purposes of the reservation and accompanying implied water rights. One was to support Klamath agriculture, and theother, which is at issue here, was "for the purpose of maintaining the Tribe's treaty right to hunt and fish on reservation lands." Adair II, 723 F.2d at 1409. In order to provide the Tribe an opportunity to continue hunting and fishing on the reservation lands, it is axiomatic that there be sufficient water to support productive habitat so there may be game to hunt, and fish to fish, as well as edible plants to gather. As Adair I announced, this may require that the "Marsh be maintained as wertlands" and that the  "forest be maintained on a sustained-yield basis." Adair I, at 345-46. Quantifying the reserved water right so that productive habitat can be supported is the only meaningful way to measure the water requirements to meet the goal of fulfilling the purpose of the reservation,

Defendants interpret the rullings in this case to hold that Plaintiffs are "entitled to the minimum amount of water necessary to protect the Tnbes hunting and fishing water rights" and that "the minimum amount necessary is a factual determination that must be made based upon the material supplied by the claimants."  Although.there seems to be no dispute that Plaintiffs carry the initial burden of proving that a certain amount of water is needed to support productive habitat, the assertion that the tribes are entitled only to some minimum amount of water is an incorrect statement of the law. In quantifying the right under Adair I, the Tribe is entitled to "whatever water is necessary to achieve" the result of supporting productive habitat. Adair I, 478 F. Supp. at 346. Once the adjudicator has quantified the Tribes' water rights under the principles announced in Adair I, the moderate living standard may be considered

Adair II, 723 F.2d at 1414-15.
Under the traditional application of the moderate living standard, the initial quantification of a reserved right may be limited "if tribal needs may be satisfied by a lesser amount." Washington v. Fishing Vessel Ass'n, 443.U.S. 658, 685, 61 L. Ed. 2d 823, 99 S. Ct. 3055 (1979). However, this case is unlike Fishing Vessel where the reserved right could be reduced without complelety frustrating the purpose of the reservation. Dor example, if the tribes' 50% allocation of the harvestable fish run at issue in Fishing Vessel would have been reduced to a 35% allocation, the reserved right would still survive after the reduction. In contrast, the Klamath Tribe's reserved water right does not readily lend itself to such a reduction. Ultimately, the water level cannot be reduced to a level below that which is required to support productive habitat, and the Tribes are entitled to "whatever water is necessary to achieve" the result of supporting productive habitat. This would be true even if there were fewer members of the Tribe. Reducing the water level below a level which would support productive habitat would have the result of abrogating the reserved rights. Because only Congress can abrogate treaty rights, and it has not done   so here, the moderate living standard cannot be applied to have the effect of reducing water levels below a level that would support productive habitat.
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 To the extent the moderate living standard can be appied in this case,the Supreme Court's guidance in Fishing Vessel on the burden of persuasion and the applicable legal; test was followed in  United States v. Washington, 873  F: Supp, 1422, 1445-46 (W.D, Wash, 1994) [hereinafter Shellfish I,]  affd.in relevannt part, rev'd in part, 135 F.3d 618 (9th Cir. 1998), opinion ammended and superceded on other matters, 157 F.3d 630 (9th Cor. 1998.) The district court in Shellfish I looked for "persuasive evidence...presented to the Court by the State and the interveners [parties opposing the tribal right]" demonstrating that the full resource amount claimed by the tribes was in fact not necessary to provide the tribes with a moderate living. Id. 873 F.Supp. at 1445 . Because the parties opposing the tribal right did not present sufficient persuasive evidence, the district in Shellfish  I did not apply the moderate living standard to reduce the treaty right from its initial allocation. The same burdens should be used to the extent non-tribal parties seek to reduce the Tribes' water rights based on the moderate living standard. However, if reducing the full resource amount would result in reducing the water level below that which is necessary to support productive habitat, no such reduction, may be made regardloess of the outcome of the moderate living standard analysls.

3. "As currently exercised"

The parties dispute the meaning of the ''as currently exercised" language in Adair II where the Court of Appeals "confirmed to the Tribe the amount of water necessary to support its hunting and fishing rights as currently exercised to maintain the livelihood of the Tribe members, not as these rights once were exercised."Adair II, 723 F:2d at 1414 (emphasis added). Some defendants have interpreted this phrase to be the definitive measure for quantifyIng the tribal water nght in the KBA.  Under these defendants' interprestation, the amount of water associated with the Tnbes right is fixed by a specific   date in 1979 - the date of the Adair I decision. For example, Oregon's Preliminary Evaluation concluded that the Tribes' right is to :"that amount of unconsumed water owing flowing through [each described reach] as of September 27, 1979, the date of [Adair I] or the quantity of the water claimed by the BIA for physical habitat maintenance flows, whichever is less." Some private defendants also assert that the water flows in 1979 or 1984 (the date of Adiar II) are the proper measure of the Tribes' water rights.

 Defendants interpretations conflict with the mean mg of Adair II and are inconsistent with the cases relied upon therein. In particular, in Fishing Vessel the Supreme Court did not limit the Indian treaty harvest of the fishery to the number of fish that were currently being harvested as of the date of the opinion, or on any other fixed date. By the time of the Fishing Vessel litigation, the Indian harvest had shrunk to only about 2 % of the harvestable fishery and current fishery management "excluded most Indians from participating in it." Fishing Vessel 443 US, at 669, Rather, Fishing Vessel confirmed 50% of the harvest to the tribes (unless opponents could prove that a lesser share was appropnate under the moderate Iiving standard) and confirmed that the treaty fishing right remained undiminished by the fact that non-treaty fishermen had, at the time of the litigatIon, over-whelmed Indian participation in the fishery. Id. at 684-87 Similarly, in Arizona I, which Fishing Vessel relied upon, the court confirmed enough water to tribes to irrigate all irrigable acres on their reservation lands regardless of the amount of irrigation tyhen currently being exercised by the tribes, Arizona I, 373 US at 600-01. 

Defendants' interpretations have the effect  of assigning a 1979 (or 1984) priority date to the Tribes' water right. This result cannot be reconciled with this Court's  holding, which was affirmed in Adair II, that the Tribes'  priority date is "time immemorial." Moreover, a stream   without water cannot be reconciled with the purpose of  the tribal right which is to "guarantee continuity of the                Indians' hunting and gathering lifestyle," (Adair II, 723 F.2d at 1412-13,) and its acknowledgment that "the treaty is not a grant of rights to the Indians, but a grant of nghts from them -a reservatIon of those not granted." Id., quoting United States v, Winans, 198 US, 371, 381, 49 L. Ed, 1089,25 S, Ct, 662 (1905) Fixing the tribal water rights to a specific date is not related to the fulfillment of purposes of the Klamath Indian Reservation, which is the paramount consideration mandated by United States v, Winters, 207 US. 564, 52 L. Ed, 340, 28 S. Ct. 207 (1908).

The "as currently exercised" phrase refers only to the moderate living standard which recognizes that changing circumstances can affect the measure of a reserved nght.Fishing Vessel, 443 US at 686-87. The "as currently exercised" language does not set a water right to a
level in 1979 or 1984, for that would clearly be contrary to the intent of Adair II. This is the only way to interpret the phrase to be consistent with the rest of Adair II, to not result in changmg the Tribes' prionty date, and to not result in abrogating the Tnbes' reserved nghts.

C. Hufford Defendants' Preclusion Argument

A significant portion of the Hufford Defendants' opening brief is devoted to their contention that "the Klamath Tribes and their members have relinquished their rights to hunt, fish and gather and all interests in water incident thereto through disposal of the lands upon which those  rights, under the Treaty of 1864, were necessarily appurtenant." Memorandum of Private Defendants, p. 43. This contention was rejected by Judge Solomon in Adair I. It is too late to relitigate that issue now, over twenty years later.

The Hufford Defendants also contend that an award of compensation made by the Court of Claims in 1971 extinguished water rights under Article I of the Treaty. The short answer is that this argument could and should have been asserted in Adair I, which was decided in 1979. It is too late now. Finaly in their reply brief, the Hufford Defendants assert that they need more time to marshal evidence in support of their preclusion argument, and seek to delay a decision on that defense. However, no additional "evidence" can change the fact that this argument comes twenty years too late.

CONCLUSION

For the foregoing reasons, it is hereby Ordered and   Declared that: (I) the Klamath Tribes' water rights include a right to water to support resources the Tribes gather, in addition to the resources they hunt, fish, and trap; (2) Adair I announced the standard for quantifying the tribal water right; and (3) the "moderate living" standard has limited applicatIon in this case, but could be used toadjust the initial quantification of the tribal water right upon a proper showing by non-tribal opponents. In no event shall the adjudicator quantify or reduce the Tribal water right to a level below that which is necessary to support productive habitat.

DATED this 9th day of April, 2002.

OWEN M PANNER

United States District Judge

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