Spokane Indian Tribe v. Dawn Mining Corp

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

SPOKANE INDIAN TRIBE; UNITED No. 21-35502
STATES OF AMERICA,
D.C. No. 2:72-cv-03643-SAB
Plaintiffs-Appellees,

v. MEMORANDUM*

DAN SULGROVE; LESLIE SULGROVE;
CHAMOKANE LANDOWNERS
ASSOCIATION, INC.,

Objectors-Appellants,

v.

DAWN MINING CORP; STATE OF
WASHINGTON; CHRISTOPHER M.
NEWHOUSE,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding

Argued and Submitted July 5, 2022
Portland, Oregon

*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
Before: WATFORD, R. NELSON, and LEE, Circuit Judges.

Objectors are Chamokane Creek Basin (“Basin”) landowners who challenge

the modification of a judgment that affects water rights in the Basin. We dismiss the

appeal because Objectors lack standing.

1. The United States established a reservation for the Spokane Indian

Tribe (“Tribe”), which included a right to Basin water to fulfill the purpose of this

reservation. The United States filed the original lawsuit seeking judicial

confirmation of the Tribe’s water rights in the Basin. This lawsuit did not include

permit-exempt users in the Basin.

After a trial, the district court found that the Tribe held a water right senior to

most other Basin water users. The court also determined the water rights for the

named Defendants. The court did not adjudicate the water rights of certain de

minimis users, finding that these uses of water should always be available.

About 25 years later, a report showed that the Basin’s water flow was not

meeting the Tribe’s water right. The suspected cause was either that de minimis

water users were using more water than allowed under Wash. Rev. Code

§ 90.44.050, or that the number of de minimis users had increased. The Tribe, the

United States, and Washington (“Government Parties”) proposed a settlement to fix

the issue, but avoid adjudicating these users. This settlement included a provision

that the United States and Tribe would not sue non-parties for drawing less than one

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acre-foot per year (about 900 gallons per day), and any enforcement under state law

would require State approval.

The Government Parties presented the settlement to the district court and

requested that the judgment be modified. The district court entered an order to show

cause as to why the court should not approve the settlement and modify the

judgment. The court received five objections, including a joint objection by

Appellant-Objectors.

After a hearing, the district court approved the settlement and modified the

judgment. Importantly, the court made the following change: “The undisputed

evidence is that normal stock water use . . . and domestic water use is de minimus

and does not include impoundments. The [Judgment] is therefore adjusted to reflect

that these uses are not included in the judgment and should always be available,” to

“Water for domestic use and normal stock water use at the carrying capacity of the

land without the use of impoundments is included in this Judgment, but it is neither

adjudicated nor quantified at this time.” Objectors appealed this decision.

2. “The standing Article III requires must be met by persons seeking

appellate review.” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 64 (1997). This

requirement is jurisdictional and cannot be waived, see Va. House of Delegates v.

Bethune-Hill, 139 S. Ct. 1945, 1951 (2019), and must be considered “whether or not

the issue was raised in the district court,” Maricopa-Stanfield Irrigation & Drainage

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Dist. v. United States, 158 F.3d 428, 433 (9th Cir. 1998). At a minimum, standing

requires that Objectors show “(1) a concrete and particularized injury, that (2) is

fairly traceable to the challenged conduct, and (3) is likely to be redressed by a

favorable decision.” Va. House of Delegates, 139 S. Ct. at 1950.

3. Objectors argue that the original language protected de minimus water

users like them from future curtailment and regulation. They maintain that the

district court performed a general stream adjudication, and that the judgment

affected all water users in the Basin, not just the water users brought into court.

These arguments are flawed because the original judgment provided no

protection for Objectors. First, “[a] general adjudication . . . 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.” State Dep’t of

Ecology v. Acquavella, 674 P.2d 160, 161 (Wash. 1983). Even though the district

court made some stray comments suggesting that the adjudication may be a general

stream adjudication,1 it did not do so because not all water users in the Basin were

joined. Only permitted water users were joined; de minimis water users, like

Objectors, were not.

1
For example, the original judgment defined the Basin “to include the entire
Chamokane Creek System,” and that the district court had “jurisdiction to adjudicate
the surface and ground waters of the” Basin.

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 Second, Washington law directly contradicts the theory that exempt uses are

protected from adjudication. “[A]n appropriator’s right to use water . . . is subject

to senior water rights.” Whatcom County v. Hirst, 381 P.3d 1, 9 (Wash. 2016). This

applies to permit-exempt and de minimis uses because “any withdrawal of water

impacts the total availability of water,” and thus “an appropriator’s right to use water

from a permit-exempt withdrawal is subject to senior water rights.” Id. Even with

the language in the original judgment, Objectors could have been sued at any time

by senior water holders such as the Tribe.

Further, the modified judgment and settlement agreement protects Objectors

more than before. The agreement states that the Government Parties will not

adjudicate permit-exempt users that draw less than one acre-foot per year. This gives

Objectors some legal protection where originally there was none.

4. Because Objectors cannot claim a redressable injury caused by the

modification of the judgment, the appeal is DISMISSED.

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