Overview

A majority of the western states are involved in general stream adjudications. These complex and lengthy lawsuits are among the largest civil proceedings ever to be litigated in state and federal courts. For instance, 27,000 persons have filed more than 77,000 claims to water rights in the Arizona general stream adjudication. In Idaho, more than 110,000 persons have filed 150,000 claims for water rights in the Snake River system. In Montana, approximately 80,000 persons have filed more than 200,000 water rights claims in the statewide adjudication.

General stream adjudications are symbolic of the significance of water to the residents of the western states. Since rainfall is unpredictable in many parts of the West, water users have had to rely upon rivers and streams and groundwater often interconnected with the surface water. These sources of water have been important to the farming, ranching, and mining economies of the western states; the expanding urban areas; and the growing number of recreational users. For many Indian tribes and their members, water provides spiritual sustenance and promises future economic development. Indian and non-Indian advocates alike seek to protect the riparian ecology of western watersheds. Since many western rivers are over-appropriated, the general stream adjudications become a principal forum for the clash of legal rights and values concerning western water.

Western states are conducting general stream adjudications for at least three purposes:
1) To recognize and quantify the valid water uses in a watershed or river system including the large, senior water rights asserted by Indian tribes and federal agencies.
2) To develop water right decrees that can be the foundation for improved water management by water users; water providers; and local, state, tribal, and federal water management agencies.
3) To create a centralized, current record of water uses within a watershed, river system, or state.

When brought in state court, these comprehensive adjudications are made possible by the federal McCarran Amendment which allows state courts to adjudicate the water rights of Indian tribes and federal agencies based on federal law, along with the water rights of other persons, based on state law.

Adjudication Forms and Forums
State courts are the traditional forum for adjudicating water rights. Early adjudications were usually simple actions with a few parties and bore a strong resemblance to quiet title actions. Complexities immediately arose. Where quiet title actions determined absolute rights to a fixed piece of realty, water right actions assigned relative, conditional rights to a constantly changing piece of property. In order to forestall an endless stream of suits dealing with the same party and the same water, it was necessary to join all parties affecting or affected by the water use. Courts experimented with bills of peace in equity, then permissive joinder of parties, but the burden on plaintiffs under these strategies was enormous.

States eventually recognized that comprehensive adjudications were indispensable. Colorado and Utah were among the first states in the late 1800s to put in place statutory procedures governing the general adjudication of water rights. Most of the western states followed suit, though the schemes varied considerably and were often updated to remedy state and federal constitutional defects.

Types of Adjudications
There are three distinct models for water right adjudications in the western states. The oldest is the Colorado model, a purely judicial system of decision and allocation by decree. The state is split up into water districts corresponding to significant watersheds. Each district has a judge assigned to water disputes. The state or district engineer provides the court with names, addresses, and basic information about new water users. The courts determine the new water rights and update existing decrees.

Close in seniority but opposite in philosophy is the Wyoming pure administrative proceeding. There, the state engineer determines water rights after performing a factual investigation. The engineer's orders are final determinations of water rights, although there is a right of appeal to the state courts.

The third system is a hybrid pioneered by Utah and Idaho. The state engineer makes hydrographic surveys of the contested watersheds, then files suit in district court to determine the rights of all users. A slight modification of this system was instituted by Oregon and Washington with the help of Morris Bien of the U.S. Reclamation Service in 1930. In Bien code states, the state engineer investigates claims and accumulates information, but does not make any determinations of rights. The state attorney general then files suit in state court to determine the rights of all claimants based on this information.

Current Status
Arizona, California, Idaho, Montana, Wyoming, and Washington are undertaking comprehensive, basin-wide adjudications of water rights. Utah, Colorado, New Mexico, Oregon, and Oklahoma are presently dealing with water rights on a more piecemeal basis, either because they have finished general adjudications, or because general adjudications are not necessary at this time. North Dakota has not attempted an adjudication, Texas has completed one, and South Dakota and Alaska abandoned their attempts.

Role of Administrative Agencies
Administrative agencies' duties in state adjudications range from nearly judicial to merely clerical. In Wyoming, the Board of Control compiles data and claims of water rights and enters orders that are usually ratified by the state courts without significant change. In Colorado, water courts rely primarily on the state and district engineers for names and addresses of claimants. In New Mexico, the state engineer becomes a party to the suit defending the agency determination against water right claimants. In Arizona, the Department of Water Resources remains a neutral party aligned with the court and special master. Due process requires, however, that claimants in every case have at least a right of appeal to state courts, regardless of the scope of agency action authorized.

Use of Special Masters and Referees
Many states appoint special masters or referees to bridge the gap between science and law. Special masters and referees act as an important filter to the flood of information and claims that would quickly overwhelm a court. Special masters and referees have broad discretion to consolidate claims and cases, review findings of fact, generate rules of procedure, and approve negotiated settlements. In some cases, special masters and referees may assist the parties in using alternative forms of dispute resolution.

Each system has particular advantages and is adapted to the state's judicial decisions and legislative will of the state's citizens. The most recent general adjudication statutes provide for maximum procedural and rule-making flexibility.

Comprehensiveness
Comprehensiveness is a touchstone of nearly all western water right adjudications. Comprehensiveness, by joining most water users and rights in one case, avoids recurring water right contests by new or undiscovered claimants, makes for more efficient administration of the resource, and provides certainty to the parties in a decree.

States that pursue less exhaustive adjudications either have permanent adjudication courts or are willing to adopt ongoing, flexible decrees. Normal civil suits to settle water disputes are still available in most states. However, water right conflicts that start as small local civil suits often escalate into larger watershed-wide determinations.

On a legal level, the federal McCarran Amendment requires adjudications to be comprehensive.

Federal Reserved Rights
Federal reserved water rights continue to complicate state adjudications. Federal reserved rights have a different pedigree than state rights. These rights implicitly reserve an unknown quantity of water and provide that the government has such future use of water as will be necessary to fulfill the purposes for which the federal land reservation was made. One of the purposes for adjudications is to quantify these federal reserve right claims.

Many state adjudications now rely on negotiated settlements to resolve federal reserved right claims. For instance, Idaho statutes allow negotiated agreements of federal reserved rights to stand as notices of claims, subject to objection and hearing as with state law claims. In Arizona, Indian federal reserved right settlements, once ratified by Congress, still must be approved by state court (usually binding all other parties in the adjudication).

Future Concerns
General stream adjudications are taking place at a time when water has never been more valuable to the West and water law and policy are in transition.

Some of the more important concerns that arise from this context are:

• Sources subject to adjudication. To what extent are groundwater and effluent subject to adjudication? Groundwater administration in some states proceeds separately from surface water administration.
• Water quality. Water quality is currently treated as a separate and unrelated field by most adjudication courts. Decrees speak in terms of acre-feet and priority dates, not parts per million or total dissolved solids. For agricultural uses, a greater amount of poor quality water may work as a substitute for the original "clean" water allocation. For municipal uses, no amount of poor quality water is acceptable as a substitute. The connection between water quality and administration of appropriative rights is an area ripe for disputes and creative solutions.
• Public interest issues. Water is a resource imbued with the public interest. In all seventeen of the western prior appropriation states, water ultimately belongs to the public.
• Use of alternative dispute resolution processes to aid the court's work. Alternative dispute resolution is proving valuable for resolving large portions of selected claims in a river basin. Most often, Indian water settlements have been the result of alternative dispute resolution. These settlements significantly lessen the court's task. They are successful, in part, because they involve smaller numbers of parties and claims, and are limited to issues of those parties involved in the settlement. Most Indian water settlements are creative resolutions for bringing federal reserve rights into the state administration system. However, there are some drawbacks to the settlement process. Because a settlement involves only some parties, there may be impacts on those persons outside the settlement. Due process concerns for parties outside the settlement challenge the court's acceptance of such settlements. Settlement talks are also inherently slow. The time it takes to reach consensus may slow the litigation process, causing frustration for both the court and the water users. Federal money is another important component of Indian water settlements, which may become less available in times of economic decline.
• Communicating with tribes, Hispanic communities, and unrepresented parties. The water resource is a central community asset for many varied cultures in the West. Water has important religious value for Indian tribes, and has meaningful and metaphorical importance for Hispanic and rural communities. Water provides the economic basis of rural agriculture and ranching communities. Understanding different values placed on the water resource is a complex sociological undertaking for a court. Additionally, there are often many small users in a water adjudication, who proceed without legal representation. Ensuring a fair process for tribal, Hispanic, and small water users involves painstaking communication efforts by the courts. De-mystifying such complex legal proceedings is no small feat.
• Finality and flexibility. Finality is the ultimate goal of all water rights adjudications. Decreed rights should endure drought, changing use patterns, and subsequent adjudications. In practice, judicial decrees can only provide the framework for management, not a final, definitive answer to all allocation problems. The correlative nature of water rights, changes in use patterns and practices, hydrogeologic unknowns, and the very weather that drives the hydrologic cycle all conspire against finality.

To form lasting and stable decrees, courts may have to address enforcement procedures, possible drought conditions, groundwater/surface water interactions, water quality, environment and wildlife issues, and other issues.