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United States v. Adair

Citation: 9 ELR 20733
No. No. 75-914, 478 F. Supp. 336/(D. Or., 09/27/1979)

The court issues a declaratory judgment resolving conflicting claims to the waters of the Williamson River by parties with interests in lands formerly part of or adjoining the Klamath Indian Reservation established by treaty in 1864. Although the reservation has now been terminated, members of the Klamath Tribe and the tribe itself have the right to sufficient water to protect their hunting and fishing rights on lands of the former reservation and for agricultural purposes on those lands. Protection of these rights, the court notes, will require maintenance of a natural stream flow through both an existing marsh and forest land on the former reservation. The court thus determines that it need not rule on the federal government's claim under the doctrine of implied reservation to a sufficient stream flow to maintain the marsh, now a national wildlife refuge, in its natural state and to ensure that national forest lands on the former reservation can be maintained on a sustained-yield basis. As to the national forest lands which lie outside the former reservation and were withdrawn from the public domain prior to 1960, the government is entitled only to such supplies as were unappropriated at the time of withdrawal and are now needed for timber production. Non-Indian successors to Indian allottees of reservation lands have appurtenant rights to water for acreage under irrigation with a priority date of 1864. The court retains jurisdiction for a period of five years to supervise the distribution of water consistent with its opinion.

Counsel for Plaintiff
Sidney I. Lezak, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney; Jean Lowman, Special Ass't U.S. Attorney
P.O. Box 71, Portland OR 97207
(503) 221-2101

Donald W. Redd
Land and Natural Resources Division
Department of Justice, Sashington DC 20530
(202) 633-4768

Counsel for Plaintiff-Intervenor Klamath Indian Tribe
Timothy LaFrance, Richard B. Collins, Daniel H. Israel, Raymond Cross
Native American Rights Fund, Inc.
1506 Broadway, Boulder CO 80302
(303) 447-8760

Counsel for Defendants
Hugh L. Biggs, Jere M. Webb
Davies, Biggs, Strayer, Stoel & Boley
900 SW Fifth Avenue, Portland OR 97204
(503) 224-3380

Theodore R. Conn
Conn & Lynch
P.O. Box 351, Lakeview OR 97630
(503) 947-2196

Counsel for Defendant State of Oregon
James A. Redden, Attorney General; James W. Durham, Jr., Deputy Attorney General; Timothy D. Norwood
100 State Office Bldg., Salem OR 97310
(503) 378-4400