concurring in part and dissenting in part, with whom GOLDEN, Justice, joins on the part dissenting to the first issue.
I agree with Justice Golden and join in his dissent on the first issue of this case.
My principal concern with the proposed majority opinion is that it does not give proper effect to the 1868 Treaty of Ft. Bridger, July 3,1868, 15 Stat. 673. It must be remembered that the Tribes’ water rights flow from the Treaty of 1868 and not from an appropriation under Wyoming law. The majority opinion treats the Tribes’ reserved water right substantially the same as an appropriation under Wyoming statutes. The effect of the majority determination is to make marginal farmers out of the Tribes forever. This defeats the purposes for which the Reservation was created.
The court’s opinion in In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo.1988), cert. granted in part 488 U.S. 1040, 109 S.Ct. 863, 102 L.Ed.2d 987, judgment aff'd 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342, reh’g denied 492 U.S. 938, 110 S.Ct. 28, 106 L.Ed.2d 639 (1989) {Big Horn I) was fashioned by a committee and organized by an editor. It does not state what issues were being decided. It is hard to determine exactly what portion of the district court judgment was reversed and what portions of the 1983 decision and the 1985 decree were left intact. It is not clearly stated in the opinion how the Tribes’ request for additional water for fisheries, minerals, industrial, wildlife and aesthetics was resolved. In examining the 1988 opinion of this court, a reader cannot find where a change of use issue was ever considered. The majority, however, quotes portions of Big Horn I out of context and bootstraps the case to support its determination in the case before us.
The special master awarded the Tribes approximately 500 cubic feet per second (cfs) as a reserved water right for agricultural and subsumed purposes. In the adjudication proceeding, the Tribes had also asked for a declaration of a reserved water right for fisheries, mineral, industrial, wildlife and aesthetics. The special master recommended an award for these purposes. The district court, however, disallowed a reserved water right for fisheries, minerals, industrial, wildlife and aesthetics. The Tribes appealed the denial of these reserved water rights. The Wyoming Supreme Court affirmed the district court in denying a reserved water right for fisheries, mineral, industrial, wildlife and aesthetics. 753 P.2d at 98-99.
The majority pumps air into its Big Horn I decision, then cites the enhanced opinion for its determination that the Tribes cannot change their right to divert water for agricultural purposes to an instream flow for fisheries. There were numerous issues in Big Horn I, all parties having appealed some part of the district court’s judgment. However, there was no issue regarding changing part of the reserved right for agricultural purposes to a right to instream *289flow for fishery purposes. The majority cites Big Horn I for a proposition that was never an issue in that case; nor was it even discussed. If the majority is determined to hold that the Tribes cannot effect a change in use to an instream flow, it should find some authority other than Big Horn I. The trouble, of course, is it cannot find any such authority. All authority is to the contrary. See Arizona v. California, 439 U.S. 419, 99 S.Ct. 995, 58 L.Ed.2d 627 (1979).
The majority opinion holds that the Tribes are subject to Wyoming law with respect to the use of their reserved water right. This determination flies in the face of a large body of law. The majority opinion makes no distinction between the Tribes’ reserved water right and an appropriation under Wyoming law. As aforesaid, such determination cannot be supported by what the court said in Big Horn I.
In the Joffe and Johnson decrees, it was stated several times and in several ways that the Tribes are entitled to make such use of the water covered by their reserved water right as they deem advisable. In his Amended Judgment and Decree dated May 15,1985, Judge Johnson held in paragraphs 8 and 9 at page 17:
8. The Tribes are entitled to make such use of the water covered by their reserved water rights they deem advisable but the use is confined to the reservation and in no event shall the consumptive use be increased.
9. The Tribes can sell or lease any part of the water covered by their reserved water rights but the said sale or lease cannot be for exportation off of the reservation and in no event shall the consumptive use be increased.
In his Decision dated May 10, 1983, Judge Joffe had made an identical determination at paragraphs 8 and 9 of the section entitled Judgment and Decree, at page 70. Judge Joffe additionally stated in the discussion section of his Decision:
The Court states again the premise that the determination of “historic” acreage and “practicably irrigable acreage” is used only as a measuring device to calculate the Tribes present and future needs. The requirements of an adjudication of a reserved right are different than those of a state awarded water right. The granting of a reserved right does not limit the usage of the water nor does it compel the Tribes to use the water on any particular tract of land. When the Tribes determine where and how they wish to use the water granted in this decree, they will inform the proper authorities who will then be able to make the specific determinations which are necessary for administration of a water right.
Id. at 36.
It is difficult to see how the majority can dance around the clear holdings of two district judges. This determination by Judges Joffe and Johnson was not reversed by this court in Big Horn I and is therefore the law of the case.1 The majority opinion summarily disposes of the Joffe and Johnson decrees by saying that reliance upon the 1983 decision or upon the 1985 decree is not justified. Then the majority quotes out of context statements from Big Horn I that had nothing to do with the Tribes’ reserved water right for agricultural purposes or a change in use.
After this court entered its decision in Big Horn I, affirming the Tribes’ right to use their water as they deem advisable, Wyoming filed a Petition for Rehearing or, in the Alternative, for Reconsideration and Clarification, in which it admitted the broad range of uses to which the Tribes could put their water pursuant to this Court’s decision:
Under the rationale suggested by Judge Johnson, once the reserved water right is quantified for irrigation it arguably may be used for virtually any purpose on the Reservation.... The Tribes are entitled to make such use of the *290water covered by their reserved water rights as they deem advisable but the use is confined to the Reservation and in no event shall consumptive use be increased.
... the Tribes may decide that their “future”projects may never be built or may be significantly delayed and if so, the Tribes may decide to unilaterally convert their reserved right for future projects into the fisheries flows denied by this Court.
Petition for Rehearing at 44 (emphasis added); see also Brief of Appellee State of Wyoming in Response to the Appellants’ Briefs of the United States and Tribes (Type 2 claims) at 86-87 (since Tribes may use their reserved water right for other non-agricultural purposes, Tribes not entitled to an additional and separate water award). Wyoming, therefore, explicitly asked that this Court amend its ruling insofar as it authorized the Tribes to dedicate their water to uses other than irrigation, including instream flows. Petition for Rehearing at 45. This court denied that request.
Wyoming adopted the same position before the United States Supreme Court in support of its argument that the “practicably irrigable acreage” quantification standard created a windfall for the Tribes. In its brief before the United States Supreme Court, Wyoming argued:
The rights received are no longer subject to the limitations of state law regarding continued use (without which they would be subject to abandonment) or transfer to different uses (for which there may be no injury to other water users).
Brief of Petitioners, In the Supreme Court of the United States, Wyoming v. United States, Case No. 88-309 at 33-34 (emphasis added and footnote omitted). That argument was rejected. Wyoming v. United States, 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342 (1989).
The State of Wyoming had no trouble understanding the court’s opinion in Big Horn I when it petitioned for a rehearing and in its appeal to the United States Supreme Court. The law of this case and its ramifications have been clear throughout this litigation. The district court, this court, and the United States Supreme Court recognized that the Tribes are entitled to dedicate their decreed water to in-stream flows. Apparently the district court disallowed the special master’s recommendation for a reserved water right for fisheries, mineral, industrial, wildlife, and aesthetics because the Tribes already had a substantial amount of reserved water (500 cfs) quantified for agriculture. According to the district court, this reserved water right could be used for any purpose. All parties understood how the Tribes could use their reserved water until this appeal. The State should be estopped from changing the position it took in its petition and argument for rehearing in Big Horn I and the position it took in its appeal of Big Horn I to the United States Supreme Court.
I agree with appellants that the State Engineer should control and manage the water, the subject matter of this litigation. I am influenced in my vote because the majority has determined that the Tribes’ future water right cannot, at this time, be transferred to instream flow. A provision for dual management would be unworkable, exacerbate a power struggle, and invite continued litigation. Despite the posturing reflected in the five separate opinions, the court’s holding is very narrow: a majority of the court has determined that the State Engineer manages the water. A different majority has determined that the Tribes’ future water right cannot, at this time, be transferred to instream flow. Considering the two narrow issues decided in our opinion, the State Engineer should not experience the difficulty with “gray areas” that he experienced in interpreting Big Horn I.
I would affirm the district court on Issue Number 1, and reverse on Issue Number 2.
. In fact, the only portions of the district court decrees that the Wyoming Supreme Court reversed were (1) an adverse ruling on the Walton claims, and (2) the award of water to the Tribes should be reduced overall by ten percent.