After 40 years, water claims are settled in Bighorn Basin

by James Wynn
— September 16, 2014

The Wind River is not a monumental river by most of the world’s standards. It has no major shipping or ports; it has no commercial fishing; and for most of its length is not navigable by more than the shallowest drafted boats.

It is 185 miles long and pushes on average 1,357 cubic feet of water per second. The Missouri River, of which the Wind is a tributary, pushes 87,520 cubic feet per second. But, to the people who live along its course, the Wind River provides one very important thing: water to an arid land.

“Water is still in limbo out here,” said James Pogue, a private irrigator and a water technician who works for the tribal water engineer. “We have water rights up near Crowheart. The big question we face as tribal members, and as irrigators, is to know what our rights to the water is.”

Water rights in the west, and particularly in Wyoming, is tricky business. As the old saying went, “First in time, first in line.” According to the State Engineers office, Wyoming water law still operates under that very same prior appropriation doctrine stating, “Those holding an earlier priority water right are allowed to receive their full portion of water before those with junior rights may receive water under their right.”

But what happens when federal water rights backflow against state rights? That question has been at the heart of a nearly four decades-long dispute between the State of Wyoming and The Northern Arapahoe and Eastern Shoshone Tribes.

“The backdrop to all this started in Riverton,” said Gordon “Jeff” Fassett, former Wyoming State Engineer.

In the mid-seventies the city of Riverton wanted to put in some ground wells. The tribes believed that they owned the rights to that groundwater. “So the question became, what are those rights? We were uncertain back then,,” said Fassett.

It all began on January 22, 1977, when, according to the Judicial Branch of the State of Wyoming, “Wyoming enacted statute § 1-37-106, authorizing the State to institute an action to determine the nature, extent, and relative priority of water rights of all persons in any river system.”

On January 24, 1977, the State filed its complaint against the United States and other parties to adjudicate all water rights in Water Division 3, including reserved water right claims for the Wind River Indian Reservation. Eastern Shoshone and Northern Arapaho tribes intervened and joined the federal government as defendants in the Big Horn General Stream Adjudication.

“These water rights are important to our economy,” said John Washakie, Library Cultural Specialist at the Fort Washakie School, and former Eastern Shoshone Business council. “Many people make their living from it, and these rights become more important when you wake up in the morning and take that first drink of water.”

But Water Division 3 does not just concern the water rights along the Wind River. According to a study published by the Wyoming Water Development Commission (WWDC), “The Wind-Bighorn Basin Plan study area encompasses the five river basins generally located in the northwest corner of Wyoming, including the Madison & Gallatin, Yellowstone headwaters, Clark’s Fork, Wind and Bighorn River Basins.”

“The study area encompasses most or all of five of Wyoming’s 23 counties, including Big Horn, Fremont, Hot Springs, Park, and Washakie counties, as well as a small portion of Natrona County. The total basin area is nearly 22,900 square miles, or 23 percent of Wyoming’s 98,210 square mile area.”

“This was a case brought by Wyoming to really try and quantify what the rights are in Division 3,” said Ramsey Kropf, Special Master for the Big Horn Adjudication. “There were concerns about the tribal claims, along with both state and federal claims. This is a huge water division.”

According to Kropf, this isn’t a matter solely about the tribes. With a watershed that big there are other players in the game.

“This adjudication also includes the Bureau of Reclamation, The Bureau of Land Management and the Forest Service,” Kropf said.

Thirty-seven years of litigation

In the original court decision, the tribes were awarded nearly 500,000 million acre feet of water per year, with 250,000 million acre feet to be reserved for future water use. It’s that 250,000 acre feet of reserved water that has been one of the biggest contentions in the 37 year-old suit. The tribes believe that as a sovereign nation they should have the right to do as they see fit with the water. The state believed otherwise.

Under the state’s reasoning, if the tribes wanted to change the use of the water right, say moving the water toward inflow stream, they would first have to put the land to use as agriculture, then begin the process of transferring that use towards in-stream flow. But that process takes time.

“If you are not using your water right within five years, you can lose that right,” said Baptiste Weed, Deputy Tribal Water Engineer. “The state can take away water rights for an individual, but not for the tribes. We wanted that water for in-stream flow as a tribe.”

In the years since adjudication began there have been a total of six matters that have been appealed to the Wyoming Supreme Court.

In Big Horn III, the Court ruled that the Tribes could use their water rights solely for agricultural purposes and that the State Engineer had administrative authority over all water rights in the State, but must turn to the courts if the Tribes when questions regarding the decree arise.

“The (Wyoming State Engineers office) wants to manage the tribe’s water right, and no other state has held that is the case,” said Deb Donahue, a professor of law and instructor of Native American Studies at the University of Wyoming. “(The tribes) have a paper right to ½ million acre feet per year, but the state says that can only be used for agriculture.”

However, the tribes have other uses for the reserved 250,000 acre feet of water other than strictly agriculture. Some of that water, they say, could be better used for helping restore fisheries and habitats.

“The fisheries and habitat is a priority for us,” said Washakie. “But it just wasn’t allowed through the courts.”

The court’s reasoning was that irrigation water is meant for irrigation. Agriculture is the top need for that water. If you don’t need it for agriculture, then you don’t need it at all. The tribes held a different view.

“It’s an important issue as far as water and deficient streams are concerned. You can take for example Bull Lake. That has been worked on with a very pragmatic approach, but one of the biggest problems is that there is simply a lack of water.”

In order to have the water rights decided by state courts in Wyoming, rather than the federal courts, federal law required that the state call for examination of the water rights of not only the two tribes on the Wind River but every water right claimant in the Wind-Bighorn Basin — over 20,000 people or entities. Millions of dollars and untold number of hours have been spent by the many parties who have been pulled into the lawsuit.

— This story was modified on 9.16.14 to correct the misspelling of two names.

— James Wynn is a graduate of the University of Iowa and studied journalism at Humboldt State University. When not writing he’s probably wandering around the prairie. He lives and works in Lander.

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