|
(Cite as: 2007 WL 3273545)
United
States District Court, W.D. Washington,
at
Seattle.
UNITED
STATES, in its own right and on behalf of the
LUMMI INDIAN NATION, Plaintiff,
Lummi
Indian Nation, Plaintiff-Intervenor,
v.
State
of WASHINGTON, Department of Ecology, et al., Defendants.
No.
C01-0047Z.
Nov.
2, 2007.
Brian
C. Kipnis, U.S. Attorney's Office, Seattle, WA, James B. Cooney,
Washington, DC, Harry L Johnsen, III, Raas Johnsen & Stuen,
Bellingham, WA, Jane Marx, Law Office of Jane Marx, Albuquerque,
NM, Judith K. Bush, Lummi Indian Nation, Bellingham, WA, for
Plaintiff.
Barbara
A. Markham, Attorney General's Office, Thomas J. Young, Olympia, WA,
John Timothy Slater, Slater Law Firm PS, Rolf G. Beckhusen,
Jr., Eugene H. Knapp, Jr., BD Law Group PLLC, Bellingham,
WA, for Defendants.
Leeward-Northgate
Water Association, Bellingham, WA, pro se.
Michael
G. Bezona, Bellingham, WA, pro se.
D.
Kim Bezona, Bellingham, WA, pro se.
Robert
D. Bezona, Bellingham, WA, pro se.
Michael
R. Heintz, Bellingham, WA, pro se.
Kristine
A. Heintz, Bellingham, WA, pro se.
Steve
H. Hovander, Ferndale, WA, pro se.
Ervin
J. Jindrich, Mill Valley, CA, pro se.
Denise
L. Jindrich, Mill Valley, CA, pro se.
Richard
L. King, Bellingham, WA, pro se.
Linda
L. King, Bellingham, WA, pro se.
Terry
Knight, Freeland, WA, pro se.
Fred
C. Larsen, Bellingham, WA, pro se.
Chuck
R. McCord, Bellingham, WA, pro se.
Brett
L. Randmel, Bellingham, WA, pro se.
Richard
Schleitweiler, Bellingham, WA, pro se.
Debra
J. Schleitweiler, Bellingham, WA, pro se.
David
E. Snead, Ferndale, WA, pro se.
Ruth
L. Snead, Ferndale, WA, pro se.
Terry
N. Taylor, Bellingham, WA, pro se.
Wayne
W. Walker, Bellingham, WA, pro se.
Kimberlee
S. Walker, Bellingham, WA, pro se.
Donald
Weber, Bellingham, WA, pro se.
Kathleen
K. Weber, Bellingham, WA, pro se.
John
W. Whiteley, Bellingham, WA, pro se.
Lillian
G. Whitney, Bellingham, WA, pro se.
1659
Holdings Ltd, Port Coquitlam, BC, pro se.
Concetta
J. Blaine, Seattle, WA, pro se.
Lois
Aminikharrazi Lois Rev Trust, Gilmer, TX, pro se.
Bert
Family Trust, Deming, WA, pro se.
Jeremy
W. Bert, Deming, WA, pro se.
Colette
A. Bert, Deming, WA, pro se.
Craig
E. Bessire, Bellingham, WA, pro se.
Barbara
J. Bessire, Bellingham, WA, pro se.
Christina
M. Ysaguirre-Boersma, Bellingham, WA, pro se.
Richard
J. Borsini, Port Ludlow, WA, pro se.
Richard
Bremer, Bellingham, WA, pro se.
Marion
Bremer, Bellingham, WA, pro se.
Jeffrey
Clark, Highlands Range, CO, pro se.
Mildred
K. Clark, pro se.
Gretchen
Lux, Olympia, WA, pro se.
Frank
Dance, Sask., Canada, pro se.
Kenneth
G. Dawson, Bellingham, WA, pro se.
Anna
J. Dawson, Bellingham, WA, pro se.
Kevin
M Dickerson, Bellingham, WA, pro se.
Robert
E. Doucette, Bellingham, WA, pro se.
Phillip
J. Elgin, Bellingham, WA, pro se.
Clifford
D. Fisher, Lafayette, IN, pro se.
Damien
Fisher, Seattle, WA, pro se.
Britt
Fisher, Lake Stevens, WA, pro se.
Gloria
Hanson, Bellingham, WA, pro se.
Shawn
Hillis, Mill Creek, WA, pro se.
Laura
Hillis, Mill Creek, WA, pro se.
Dennis
L. Hoofnagle, Bellingham, WA, pro se.
Max
W. Hurren, North Vancouver, BC, pro se.
Quang
Vuong, Seattle, WA, pro se.
Ha
Tu Huynh, Seattle, WA, pro se.
Harold
J. Jeffries, Ferndale, WA, pro se.
Jennifer
Jeffries, Ferndale, WA, pro se.
George
E. Johnson, Bellingham, WA, pro se.
Marion
E. Johnson, Bellingham, WA, pro se.
Raymond
R. Kendall, Ferndale, WA, pro se.
Barbara
A. Kendall, Ferndale, WA, pro se.
Monte
R. Littleton, Bellingham, WA, pro se.
Edward
A. McCaffery, Bellingham, WA, pro se.
Jean
G. McCaffery, Bellingham, WA, pro se.
James
E. Miles, Bellingham, WA, pro se.
Jeffrey
K. Mock, Bellevue, WA, pro se.
John
B. Moss, Moyie Springs, ID, pro se.
Mary
Moss, Moyie Springs, ID, pro se.
Stacy
Neal, Bellingham, WA, pro se.
Eunice
I. Olsen, Bellingham, WA, pro se.
Erin
Osborn, Bellingham, WA, pro se.
Aleda
A. Rabel, Bellingham, WA, pro se.
Terry
W. Roal, Owens Cross Roads, AL, pro se.
Reuben
W. Rudy, Bellingham, WA, pro se.
William
D. Smith, Bellingham, WA, pro se.
Linnea
G. Smith, Bellingham, WA, pro se.
Peter
E. Stephenson, Bellingham, WA, pro se.
Ellen
S. Stephenson, Bellingham, WA, pro se.
Yvonne
J. Solomon, Bellingham, WA, pro se.
Daniel
J. Vanweerdhuizen, Ferndale, WA, pro se.
David
A. Ware, Bellingham, WA, pro se.
Joseph
E. Washington, Bellingham, WA, pro se.
Mark
R. Weinberg, Bellingham, WA, pro se.
ORDER
CONDITIONALLY APPROVING SETTLEMENT AGREEMENT
THOMAS
S. ZILLY, United States District Judge.
*1
THIS MATTER comes before the Court on a Joint Motion
to Approve Settlement, docket no. 1056, by plaintiff United States,
plaintiff-intervenor Lummi Indian Nation, and defendants Washington State Department of
Ecology (“Ecology”),
Whatcom County, the Georgia Manor Water Association, the Harnden Island
View Water Association, and the Sunset Water Association (collectively, the
“Water
Associations”),
and various property owners represented by Eugene Knapp of Barron
Smith Daugert PLLC. On June 26, 2007, the Court heard
oral argument from the moving parties, as well as from
the objecting parties. The Court directed the moving parties to
address certain issues and took the matter under advisement. The
Joint Motion to Approve Settlement was subsequently renoted to September
14, 2007, and the parties were directed to submit supplemental
materials by that date. Having now reviewed all papers filed
in support of and in opposition to the pending motion,
the Court hereby conditionally approves the Settlement Agreement as outlined
in the attachments to the Joint Motion to Approve Settlement,
docket nos. 1056-4 through 1056-12, the Notice of Corrections and
attachments thereto, docket no. 1199, and the Corrected Pages of
the Settlement Agreement, docket no. 1243-2.
Background
This
action was initiated in January 2001 by the United States
on behalf of the Lummi Nation. The United States sought
a declaration that the Treaty of Point Elliott implicitly reserved
to the Lummi Nation rights to surface water on and
groundwater under the Lummi and Sandy Point Peninsulas that are
prior and paramount to the rights of other users of
such water. The original complaint named as defendants various water
associations and property owners, as well as Ecology. The Lummi
Nation subsequently intervened, and Whatcom County was later added as
a defendant. During the ensuing six years of litigation, some
defendants sold their parcels and were substituted or dismissed, while
others, including the Gooseberry Point Community and Water Association, separately
settled with the United States and the Lummi Nation. After
protracted negotiations, Ecology, Whatcom County, the Water Associations, and substantially
all of the remaining property owners have reached agreement with
the United States and the Lummi Nation, pursuant to which
water is allocated based on scientific principles and under which
future disputes can be efficiently resolved. An assessment of this
proposed settlement requires knowledge about the geology and history of
the area at issue.
In
1855, the Treaty of Point Elliott established the Lummi Indian
Reservation. The Reservation consists of two peninsulas. The larger peninsula,
the Lummi Peninsula, extends into Bellingham Bay, and the smaller
peninsula, the Sandy Point Peninsula, extends into Lummi Bay. Both
Bellingham Bay and Lummi Bay are saltwater bodies. The portion
of the Lummi Reservation involved in this litigation (the “Case
Area”)
is located on the Lummi Peninsula. The impetus for this
lawsuit was the belief that the available groundwater on the
Lummi Peninsula cannot meet the future needs of every landowner
within the Case Area.
*2
Differing views have been articulated concerning the manner in which
groundwater on the Lummi Peninsula is recharged. The hydrogeologists at
Aspect Consulting, LLC have concluded that precipitation falling on the
Lummi Peninsula provides the only significant source of groundwater recharge.
They posit that, if the amount of groundwater withdrawn from
the aquifer exceeds safe levels, saltwater could intrude and irreversibly
contaminate the water supply. Others have theorized that the Lummi
aquifer has some continuity with groundwater outside the Case Area
and might be recharged by the Nooksack River or other
sources of potable water. After devoting substantial resources to studying
the issue, the moving parties have adopted a conservative approach,
relying upon the annual safe yield calculations performed by Aspect
Consulting, LLC. Using a theoretical maximum safe yield of 1,000
acre-feet per year (“afy”),FN1
the moving parties have agreed upon an actual safe yield
of 900 afy. The moving parties have indicated that they
view this value for actual safe yield as a compromise,FN2
based on their assessment that, in light of the evidence,
the Court could reach the same conclusion at trial.
FN1.
One acre-foot per year equals approximately 892.8 gallons per day.
FN2.
The actual safe yield of the aquifer cannot be computed
with certainty, and it will depend on a variety of
factors, including the manner in which water is withdrawn.
Assuming
an actual safe yield of 900 afy, the moving parties
propose to allocate, via the Settlement Agreement, a certain amount
of groundwater to each of the constituencies involved, without regard
to the seniority or vesting of water rights. Thus, the
Settlement Agreement substantially departs from the methods under federal and
state law for determining the priority of water rights. In
previous orders, the Court has ruled that the Lummi Reservation
is “Indian
Country”
within the meaning of 18 U.S.C. §
1151, and that water rights consistent with the primary purpose
of the reservation were implicitly transferred by the treaty creating
the reservation. See
Amended Order at 9, 14-15 (docket no. 794); Order at
8 (docket no. 304);see
also Winters
v. United States,
207 U.S. 564 (1908). Such water rights, described as Winters
rights, have not yet been quantified by the Court; however,
the Court has identified the water reserved to the Lummi
Nation as the amount associated with the “practicably
irrigable acreage”
in combination with a domestic supply. Amended Order at 18-19
(docket no. 794). The Court has also observed that, when
an Indian allottee transfers property to a non-Indian, the successor
must act with diligence to perfect the Winters
rights and then must maintain the water rights through continuous
use. Amended Order at 27-28 (docket no. 794);see
also Colville
Confederated Tribes v. Walton,
647 F.2d 42 (9th Cir.1981). In other words, the non-Indian
successor must “use
it or lose it.”
United
States v. Anderson,
736 F.2d 1358, 1362 (9th Cir.1984).
The
Settlement Agreement's water allocation system obviates the need to quantify
the water rights of the Lummi Nation or to determine
whether various non-Indian successors perfected and maintained their Winters/Walton
rights. For this and other reasons, the moving parties are
requesting that the Court vacate its prior orders concerning the
applicable federal and state law. Before deciding whether to do
so, the Court must first evaluate whether the Settlement Agreement
satisfies the criteria set forth in its order concerning the
process for approving settlement. In its earlier order, the Court
indicated that the following conditions needed to be established by
a preponderance of the evidence:
*3
(a) The Settlement is fair, adequate, and reasonable, considering all
of the circumstances surrounding the settlement;
(b)
The water rights or other legally protected interest claimed by
the objector(s) were:
(i)
not established by the objector; or
(ii)
if established, the objector's water rights or other legally protected
interest would not be materially injured by the terms of
the Settlement and proposed Judgment and Order; or the objector
is bound by the Settlement terms by virtue of the
objector's relationship to a party that has agreed to the
terms of the Settlement.
and;
(c)
The interests of all the parties would justify the Court's
vacatur of the Court's Orders under all the circumstances.
Order
at 5 (docket no. 1068);see
also United
States v. Oregon,
913 F.2d 576 (9th Cir.1990). As discussed in further detail
below, the Court has thoroughly reviewed the Settlement Agreement, as
well as the objections thereto, and concludes that the Settlement
Agreement should be approved.
Discussion
A.
The
Settlement Agreement
The
Settlement Agreement addresses three primary issues: (i) division of water;
(ii) management of the aquifer; and (iii) dispute resolution. Under
the Settlement Agreement, Ecology is granted exclusive regulatory authority over
120 afy of groundwater in the Case Area; an additional
95 afy is committed to non-Lummi water users under other
settlements and service arrangements. The Lummi Nation may authorize withdrawal
of all groundwater in the Case Area not subject to
allocation by Ecology or otherwise committed to non-Lummi water users,FN3
provided that chloride levels remain within an acceptable range,FN4
and the Lummi Nation may use such water for any
purpose permitted under federal or tribal law. The moving parties
indicate that the apportionment of water between Ecology and the
Lummi Nation is roughly equivalent to the current ratio of
non-Lummi to Lummi property ownership. The moving parties agree that,
of the 6,286 acres of land located within the Case
Area, approximately 1,245 acres, or almost 20%, is owned in
fee by non-Lummi defendants.FN5In
comparison, under the Settlement Agreement, Ecology may allocate to non-Lummi
users up to 24% of the actual safe yield of
the aquifer (215 of 900 afy).
FN3.
The moving parties are directed to revise section III.B.1 of
the Settlement Agreement to reflect that the water reserved therein
to the Lummi Nation does not include the amounts governed
by separate settlement agreements and service arrangements.
FN4.
The presence of chloride within a well is an indication
of saltwater intrusion, and the Settlement Agreement states as a
goal maintaining less than 100 milligrams of chloride per liter
of water.
FN5.
These computations were performed by Ann Newton Stark, who is
employed by the Lummi Nation as a professionally certified Geographic
Information Systems Coordinator. See
Stark Decl. (docket no. 1056-3). Pro se defendant Chuck McCord
challenges these acreage calculations. Mr. McCord, a local realtor, believes
that “more
like 40%”
of the Case Area is owned by non-tribal members. McCord
Response (docket no. 1102). Mr. McCord, however, provides no evidentiary
support for his claim, and he fails to identify any
error in Ms. Stark's calculations.
Ecology's
allotment is divided as follows: 20 afy to the Georgia
Manor Water Association, 35 afy to the Sunset Water Association,
4.29 afy to the Harnden Island View Water Association, 7.0
afy to the well associated with state certificate G1-23833C, and
0.39 afy (or 350 gallons per day) to each person
owning or served by an existing well. In this manner,
the Settlement Agreement provides water for every existing home in
the Case Area. Moreover, the moving parties envision that approximately
50 new homes can acquire water from the Water Associations
and another 60 homes will be able to draw water
from new wells. These 110 currently undeveloped parcels would not
have water rights
but for the Settlement Agreement because, under federal and state
law, water rights depend on actual use. RCW 90.03.010; Walton,
647 F.2d at 51.
*4
The Settlement Agreement explicitly addresses the effect of transferring property
from non-Lummi to Lummi ownership or vice versa. When a
parcel is deeded by a non-Lummi owner to the Lummi
Nation or one of its enrolled members, unless the parcel
is receiving water from a Water Association, regulation of the
water for that parcel transfers to the Lummi Nation and
is withdrawn from Ecology's reserves. Likewise, if an owner with
a perfected right to water from Ecology's allocation enters into
an agreement to receive water from the Lummi Nation, Ecology's
reserves will be reduced by the quantity of water authorized
for such parcel of land. On the other hand, if
a non-Lummi acquires title from the Lummi Nation, one of
its members, or an Indian for whom the United States
owns the land in trust, then water rights for the
parcel shall be determined by applicable law. The Court interprets
this provision of the Settlement Agreement to incorporate the “use
it or lose it”
doctrines of federal and state law.
The
Settlement Agreement also provides a safety net in the event
of saltwater intrusion. The owner of a well with chloride
above the trigger level FN6
may cease operating the well and connect to the Lummi
Tribal Water District system by providing notice and paying the
standard connection fee and a pro rata share of any
additional infrastructure. The Settlement Agreement expressly provides that connection to
the Lummi Tribal Water District system does not confer tribal
jurisdiction for any purpose over the connecting owner.
FN6.
The trigger level is defined as 140 milligrams of chloride
per liter of water, or 40 milligrams of chloride per
liter of water above the base level for a small
well, whichever is higher. The trigger level may not exceed
250 milligrams of chloride per liter of water.
In
addition to allocating groundwater, accounting for the transfer of rights,
and anticipating well failures, the Settlement Agreement outlines various obligations
for managing and preserving the health of the aquifer. As
a result, the Settlement Agreement will have binding effect on
all parties to this litigation:
(1)
No
Unauthorized Wells.New
wells may not be drilled without prior express written permission
as set forth in the Settlement Agreement. Unauthorized wells shall
be decommissioned.
(2)
Registering
and Metering.All
wells in the Case Area shall be registered and metered.
(3)
Monitoring.For
each well, an annual report shall be made concerning meter
readings of cumulative water use through September 30 of each
year, chloride levels taken as of August of each year,
and problems and/or changes in well and/or meter operations.
(4)
No
Overuse.Users
may not withdraw water in excess of the annual limit
specified for the property. Violators will be subject to various
enforcement mechanisms.
(5)
No
Unsafe Operation.No
domestic service well may operate at a chloride level greater
than 250 milligrams per liter.
Finally,
the Settlement Agreement establishes a framework for dispute resolution. A
Water Master shall be appointed by the Court. The Water
Master will have authority to issue injunctions, collect fees, establish
penalties and levy fines, file and enforce liens, resolve disputes
and enforce decisions, regulate wells or take other emergency measures
to protect the aquifer in the event of inaction by
Ecology or the Lummi Nation, and hear appeals from decisions
of the United States, the Lummi Nation, or Ecology concerning
permission or denial thereof to construct a well or withdraw
groundwater. Pursuant to the Settlement Agreement, the Lummi Nation will
pay 50% of the Water Master's budgeted costs, each household
receiving water from the allocation regulated by Ecology shall pay
a flat fee in the neighborhood of $100, and Ecology
will pay the remainder. A decision of the Water Master
may be appealed to this Court within thirty days by
payment of the filing fee for a new civil action.
The Settlement Agreement provides that such appeal will be based
on the written record established before the Water Master, but
it does not indicate how such record will be maintained
or transmitted to this Court, and it does not articulate
the standard of review to be applied by this Court.
As a result, the Court has included, within the attached
Draft Order and Judgment, language addressing these issues.
B.
Objections
to the Settlement Agreement
*5
Various property owners, acting pro se, are objecting to the
Settlement Agreement on a number of grounds. These pro se
defendants comprise a tiny fraction (about 1%) of the property
owners in the Case Area. Their objections can be divided
into the following four categories: (i) disagreement with the Court's
prior legal conclusions; (ii) disputes with the factual premises underlying
the Settlement Agreement; (iii) fears and concerns about the impact
of the Settlement Agreement; and (iv) complaints falling outside the
scope of this litigation. The Court has carefully considered all
of the objections and does not find any of them
sufficient to warrant abandoning years of collaborative effort in crafting
a workable solution to the difficult issues involved. As an
initial matter, the Court observes that none of the pro
se property owners claims that water rights vested under federal
or state law are negatively impacted by the Settlement Agreement.
To the extent that the pro se defendants are currently
using water on their respective parcels, they are eligible to
share in Ecology's allocation of groundwater. Moreover, the Court notes
that none of the pro se property owners claims that
his or her water rights would be increased at trial
over what is afforded under the Settlement Agreement. To the
contrary, the Court is persuaded that the risks of trial
for the pro se defendants far outweigh the risks of
trial for the opposing parties, namely the United States and
the Lummi Nation, both of which are advocating for the
resolution outlined in the Settlement Agreement.
1.
Prior
Legal Conclusions
Within
the first category of objections, a number of pro se
defendants argue that the Lummi Reservation is not “Indian
Country.”
The Court has already rejected this contention and would not
reconsider its earlier ruling if this matter were to proceed
to trial. In addition, whether the Lummi Reservation is “Indian
Country”
is not a relevant inquiry under the Settlement Agreement; the
moving parties have agreed to the allocations set forth therein
without regard to priority of water rights. Therefore, this argument
provides no basis for believing that the pro se defendants
would improve their position at trial or for rejecting the
Settlement Agreement.
2.
Factual
Premises
Within
the second category of objections, various pro se defendants assert
that the hydrogeologic analysis underlying the Settlement Agreement is flawed.
They allege that the Lummi aquifer is not recharged solely
by rainwater, but rather by groundwater sources north of the
Lummi Peninsula, offering as support reports authored by Glenn A.
Bezona, now deceased, Don J. Easterbrook, Professor Emeritus of Geology
at Western Washington University, and Willard D. Purnell, licensed hydrogeologist
with W.D. Purnell & Associates, Inc. Although the reports raise
questions concerning the source of recharge for groundwater under the
Lummi Peninsula, none of the reports provides an estimate of
the actual annual safe yield for the Lummi aquifer. In
contrast, the experts retained by the United States and the
Lummi Nation, as well as the expert hired by Ecology,
have opined that the actual safe yield is in the
neighborhood of 900 afy. See
Exh. 3 to Knapp Decl. (docket no. 1056-2) (“The
theoretical safe yield of the main aquifer system on the
Lummi Peninsula was computed using a numerical model to be
approximately 1,000 acre-feet per year. The practicable safe yield will
be less than the thoeretical safe yield, due to practical
limitations on well locations.”);
Nazy Dep. at 34, Exh. 1 to Knapp Decl.
(docket no. 1056-2) (“Groundwater
recharge is 1,607 to 2,917 acre-feet per year. Available groundwater,
26 percent of recharge, would be 402 to 729 acre-feet
per year.”).
*6
In evaluating the fairness, adequacy, and reasonableness of the Settlement
Agreement, the Court need not decide whether the source of
recharge for the Lummi aquifer is precipitation or hydrologically connected
groundwater or both. The Court need only be satisfied that
the Settlement Agreement represents a reasonable factual determination. See
Oregon,
913 F.2d at 581. In light of the evidence concerning
actual safe yield, the Court is persuaded that the moving
parties have based their allocations of groundwater on reasonable expectations
concerning the findings that would likely be made at trial.
Another
objection falling within the second category and raised by many
of the pro se defendants is that the daily household
water allotment provided by the Settlement Agreement (350 gallons per
day) is too low. Marlene and Richard Dawson, and Ken
and Ann Dawson, are among the pro se defendants who
have asserted a higher actual daily use. They estimate needing
400 gallons of water per day. The Dawsons, however, have
not articulated how the Settlement Agreement would impair their use.
The Dawsons obtain water from the Sunset Water Association; they
hold no independent water right because they have never used
water from any source other than the Sunset Water Association.
The Settlement Agreement does not impose any limit on water
use by members of the Sunset Water Association; rather, the
Settlement Agreement simply requires that the Sunset Water Association use
the figure of 300 gallons per day per connection when
evaluating the number of parcels it can serve with its
35-afy allocation. The Settlement Agreement does not prevent the Sunset
Water Association from relying on higher figures when evaluating how
many parcels it can serve, and it does not affect
the amount of water that the Dawsons may draw from
the Sunset Water Association.
Also
asserting a desire for more than 350 gallons of water
per day are several individual- or shared-well users. The pro
se well users provide very little support for their claim
that their actual water consumption exceeds 0.39 afy. None of
the wells at issue are metered, and none of the
well users have tracked their actual consumption by counting toilet
flushes, showers, dishwasher loads, laundry cycles, and the like. Some
of the well users have testified that they based their
estimated water needs on the “Tampa
Water Use Calculator,”
which is available via the Internet. According, however, to Andrew
Dunn, a licensed hydrogeologist employed at Ecology's Northwest Regional Office,
the Tampa Water Use Calculator is not a scientific tool,
is not applicable to conditions in the Case Area, and
contains some flawed assumptions. Dunn. Decl. at ¶
5 (docket no. 1130). The Calculator assumes year-round irrigation, which
is not required in northwest Washington, and substantially overestimates the
amount of water used by standard washing machines. Id.
(Energy Star qualified washers use 25 gallons per load, while
the Calculator assumes 55 gallons per load).
*7
Again, in deciding whether to approve the Settlement Agreement, the
Court need not resolve factual disputes. The Court's task is
not to determine how much water an average household requires
per day or year; rather, the Court's review is limited
to assessing whether the figure used in the Settlement Agreement
is reasonable. In contrast to the lack of data supplied
by the pro se well users, the moving parties have
submitted evidence relevant to the Case Area lending factual support
for the allocation specified in the Settlement Agreement, namely 350
gallons of water per day per household. See
Smith Decl. at ¶
2 (docket no. 1131) (according to the records of the
Georgia Manor Water Association, for the years 1995 through 2006,
the average daily water usage per home served by the
Association has been less than 300 gallons per day); Heintz
Decl. at ¶
2 (docket no. 1132) (according to the Sunset Water Association,
for the years 2001 through 2006, the highest average household
usage was less than 300 gallons per day). Moreover, a
report submitted by one of the pro se defendants gives
further credence to the usage amount upon which the moving
parties have settled. See
Bellingham Water Meter Pilot Project Report, Exh. 1 to Walker
Response (docket no. 1162) (indicating that the average daily water
consumption per household during the period from April 2000 through
January 2002 was 229 gallons per day for metered users
and 213 gallons per day for flat-rate users, and that
the highest average household usage was 289 gallons of water
per day, which was during the dryer summer months). Thus,
based on the record before the Court, the Court is
satisfied that the Settlement Agreement is premised on reasonable determinations
concerning the amount of water that can be safely withdrawn
annually from the aquifer and the amount of water that
an average household requires on a daily or yearly basis.
3.
Fears
and Concerns
The
third category of objections includes a number of misgivings based
on longstanding animosity toward the Lummi Nation. Concerns have been
raised about nonLummi property owners being subject to tribal jurisdiction
and about non-Lummi property owners being subject to discrimination. The
Settlement Agreement, however, expressly addresses these fears. The Settlement Agreement
provides that “[c]onnection
to the Lummi tribal water system under the terms of
this Agreement shall not be considered a consent to tribal
jurisdiction for any purpose”
and that “no
distinction in rates and charges [for water from the tribal
system] shall be made on the basis of race, color,
creed, religion, or tribal membership of the owner of the
property served.”Settlement
Agreement at §
X.E.2.c on p. 44 (docket no. 1056-3). Moreover, to the
extent that non-Lummi property owners receive water from Ecology's allocation,
they will be subject under the Settlement Agreement to regulation
by Ecology, not the Lummi Nation.FN7
FN7.
Even if, however, the Settlement Agreement had provided for complete
control by the Lummi Nation, the threat to the Lummi
aquifer might justify regulation by the tribe over non-members living
on the Lummi Reservation. See
Montana
v. United States,
450 U.S. 544, 566 (1981) (“A
tribe may also retain inherent power to exercise civil authority
over the conduct of non-Indians on fee lands within its
reservation when that conduct threatens or has some direct effect
on the political integrity, the economic security, or the health
or welfare of the tribe.”).
The
pro se defendants also complain that the Settlement Agreement is
weighted too heavily in favor of the Lummi Nation, which
is permitted to use its water for any purpose, including
casinos and hotels. The perception of unfairness, however, appears to
relate more to past interactions with the Lummi Nation and
dissatisfaction with the course of negotiations in this case than
to any substantive deficiency in the Settlement Agreement. When viewed
through a less tainted lens, the Settlement Agreement exhibits a
balance rarely seen in litigation concerning a precious and potentially
scarce commodity; it preserves the resource rights of the Lummi
Nation, while guaranteeing existing users a sufficient amount of water
for their needs and making water available for a limited
number of future users.
*8
The
pro se objectors fail to explain how their concerns would
be in any way better addressed by trial in this
matter.
4.
Outside
Scope of Litigation
Pro
se defendant Fred Larsen owns vacant land in the Harnden
Island View area and claims membership in the Harnden Island
View Water Association pursuant to language in the deed for
his property. As written, the Settlement Agreement grants the Harnden
Island View Water Association 4.29 afy, which is sufficient for
the existing 11 members of the Association. Mr. Larsen seeks
an allocation of 10.53 afy to allow for development of
an additional 27 parcels. The Harnden Island View Water Association,
however, does not have a state water right permit or
certificate, and its water rights are based entirely on past
beneficial use. The previous use of water by existing Association
members does not create rights of future use by Mr.
Larsen or other owners of vacant lots. Mr. Larsen raises
a dispute that is strictly between the Association and any
aggrieved undeveloped property owners, and it is beyond the scope
of this litigation.
Likewise,
Gloria and C. Dean Hanson's complaints about thwarted attempts to
obtain water from the Gooseberry Point Water Association or the
Lummi Nation are beyond the scope of this litigation. The
fact remains that the Hansons cannot now establish a water
right based on past use, and the Settlement Agreement provides
them the best chance of securing water for their undeveloped
land. Under the Settlement Agreement, an owner of vacant property
within the Case Area may apply for a permit to
draw groundwater from Ecology's allocation. The task of determining which
applications for future use have adequate merit is best left
to those designated by the Settlement Agreement. The Court would
have no involvement in such matters if this case proceeded
to trial because potential future users would have no water
rights under federal or state law.
Finally,
pro se defendant Chuck McCord suggests that the Settlement Agreement
should provide a tribal member purchasing property from a non-tribal
member the option of leaving the associated water in Ecology's
allocation, rather than diverting it to the Lummi Nation, as
a means of facilitating future transfers to non-Lummi individuals. Although
Mr. McCord's idea is intriguing, the Court simply does not
have the authority to force the parties to agree to
such resolution. The Court is satisfied that the Settlement Agreement
does not in any way preclude transfers from tribal members
to non-tribal members. Whether such transfers would convey any water
rights and whether Ecology or the Lummi Nation would regulate
such rights, if any, is not a justiciable controversy currently
before the Court.
C.
Evaluation
of the Settlement Agreement
As
articulated in a prior order, before approving this type of
settlement, the Court must be persuaded that the Settlement Agreement
is “fundamentally
fair, adequate, and reasonable.”
Oregon,
913 F.2d at 580. The inquiry required of the Court
is “nothing
more than ‘an
amalgam of delicate balancing, gross approximations and rough justice.’
“
Id.
at 581.Because this case affects the public interest, however, the
Court has a “heightened
responsibility”
to protect those who did not participate in negotiating the
compromise or who object to it. See
id.Nevertheless,
to approve the compromise, the Court need not be convinced
that the Settlement Agreement is in the public's “best”
interest if it is otherwise reasonable. Id.
Having these principles, as well as the criteria set forth
in its earlier order, in mind, the Court is prepared
to approve the Settlement Agreement upon receipt of the final
version as described in more detail below.
*9
First, the Court concludes that the Settlement Agreement is fundamentally
fair, adequate, and reasonable. It is the product of extensive
and creative negotiations, and it equitably apportions the available groundwater
on the Lummi Peninsula. Approximately 20% of the land within
the Case Area is owned by non-Lummi defendants, and the
Settlement Agreement allocates 24% of the actual safe yield from
the aquifer to those defendants. Moreover, the Settlement Agreement allows
for a reasonable amount of additional construction, securing for a
number of non-Lummi defendants water rights that they would not
otherwise have.
Second,
the Court is persuaded that those objecting to the Settlement
Agreement have failed to establish either (i) a water right
superior to, or even equivalent to, that of the Lummi
Nation, or (ii) a water right materially injured by the
Settlement Agreement. The Settlement Agreement provides 350 gallons of water
per day per household served by a well; it places
no limits on individual usage for households served by a
Water Association. Any claim that the amount of water allocated
under the Settlement Agreement does not meet an average property
owner's needs is unsupported by the record and amounts to
nothing more than speculation.
Finally,
the Court is convinced that vacatur of its Amended Order
dated June 23, 2005, docket no. 794, and its precursor
Order dated May 20, 2005, docket no. 779, would be
in the interests of all parties under the circumstances. The
Court's previous orders set forth the framework for determining water
rights within the Case Area consistent with federal and state
law. The Settlement Agreement, however, abandons the federal and state
priority systems for allocation of water rights. Under the Settlement
Agreement, the United States and the Lummi Nation have agreed
not to assert seniority over other existing water users and
have assumed the risks associated with future water shortages. The
Settlement Agreement also departs from federal law as outlined in
the Court's previous orders by dividing water based on the
aquifer's actual safe yield rather than the practicably irrigable acreage
combined with an allocation for domestic use. The moving parties
contend, and the Court agrees that, if this action is
terminated without vacating the previous orders, those orders will stand
at odds with the Settlement Agreement and the parties will
have no right to appeal from them. For these reasons,
the Court consents to vacate the orders identified above, and
it will do so in an order and judgment entered
after the parties submit the final Settlement Agreement. See
Blair
v. Shanahan,
919 F.Supp. 1361 (N.D.Cal.1996) (vacating a declaratory judgment to permit
the State of California to intervene and be heard on
the merits, which could no longer be reviewed on appeal
because the declaratory judgment had been rendered moot by the
settlement between the original parties).
Conclusion
The
Settlement Agreement proposed by the moving parties satisfies the standard
for judicial approval of such decrees, and the Court believes
that it is in the public's best interest. It reflects
difficult decisions and substantial compromise, and it offers a comprehensive
and workable solution for all water users in the Case
Area. The moving parties are directed to file the final
Settlement Agreement, along with all attachments, within ten (10) days
of this Order. The final Settlement Agreement shall contain the
revisions described in footnote 3 of this Order. Upon review
of the final Settlement Agreement, the Court will enter an
Order and Judgment substantially in the form shown in the
draft attached hereto as Exhibit A. Any objections to the
form of Order and Judgment shall be filed by and
noted for November 16, 2007. The Clerk is directed to
RENOTE the Joint Motion to Approve Settlement, docket no. 1056,
to November 16, 2007. The Clerk is further directed to
send a copy of this Order to all counsel of
record and all pro se parties.
*10
IT IS SO ORDERED.
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