Water Right Owners

Recommendation Status

Water Source

Points Of Diversion (Location)

Water Uses

Water Use Notes

Places of Use

Place of Use Legal Description : WILDLIFE (LATAH county)

Conditions

Code	Condtions
	Federal I.D. #1102
	f. Pursuant to the General Allotment Act of 1887, Act of February 8, 1887, 24 Stat. 388, amended, Act of February 28, 1891, 26 Stat. 794, there are two allotments (Allotments 182-43 and 182-45) held in trust by the United States located within the boundaries of the Palouse River Basin and the northwestern corner of the Nez Perce Reservation. For purposes of the priority date of the domestic and stock watering claims for these two allotments, the United States claims June 11, 1855 pursuant to the 1855 Treaty. g. In order to comply with Idaho Code § 42-1409(1), the United States has designated “places of use,” “points of diversion,” and “purposes of use” in submitting this water rights claim. The use of this format, as required by Idaho Code, should not be construed to limit either the United States or the Nez Perce Tribe’s future use of water at other points of diversion, places of use, or for other purposes within the boundaries of the Reservation. The statute’s terminology has been employed to demonstrate that the amount claimed is necessary, justifiable, and available to fulfill the treaty rights of the Nez Perce Tribe and achieve the purpose of the Reservation as a homeland for the Nez Perce Tribe. The quantification standards used in no way constitute a limitation on the use of the water by the United States or the Nez Perce Tribe.
	a. The United States has asserted other claims in the Palouse River Basin Adjudication. Paragraphs 10(a) – (g) express assertions applicable to all claims filed by the Bureau of Indian Affairs in its capacity as trustee for the Nez Perce Tribe in the Palouse River Basin Adjudication. The United States claims waters from groundwater and surface water sources within the Palouse River Basin in the state of Idaho to satisfy the rights reserved to the Nez Perce Tribe by the 1855 Treaty and the 1863 Treaty and to fulfill the permanent homeland purpose of the Nez Perce Reservation. Such present and future purposes include: instream flows for fish habitat; hunting, gathering, and pasturing; spring and fountains flows pursuant to Article VIII of the 1863 Treaty between the United States of America and the Nez Perce Tribe; and consumptive use claims on two allotments held in trust by the United States. b. The Nez Perce Tribe has occupied a territory in what is now central Idaho, southeastern Washington, and northeastern Oregon since time immemorial. United States v. Webb, 219 F.3d 1127, 1129 (9th Cir. 2000), cert. denied, 531 U.S. 1200 (2001). The Palouse River Basin is within the Tribe’s traditional lands. c. There is a complex history of the United States’ establishment of the Nez Perce Reservation, including negotiations of treaties and agreements. Regarding fishing rights, Article III of the 1855 Treaty reserves to the Nez Perce Tribe the “exclusive right to fish in all streams running through or bordering” the Reservation created by the 1855 Treaty. Article III of the 1855 Treaty also guaranteed the “right of taking fish at all usual and accustomed places in common with the citizens of the Territory” to the Nez Perce. For purposes of the priority date of the instream flow claims, the United States claims Time Immemorial, but in the alternative, claims a priority date of June 11, 1855 pursuant to the 1855 Treaty. d. Article III of the 1855 Treaty further reserves to the Tribe “the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.” e. Article VIII of the Nez Perce Treaty of 1863 includes a unique provision reserving to the Nez Perce Tribe the use of “springs and fountains” within the area ceded under Article I of the 1863 Treaty. For purposes of the priority date of the springs and fountains claims, the United States claims Time Immemorial, but in the alternative, claims a priority date of June 11, 1855 pursuant to the 1855 Treaty.
	This claim is for a spring and/or fountain in situ including sufficient groundwater to maintain the wetland and/or riparian habitat surrounding the spring and/or fountains.
	Priority Date claimed is "Time Immemorial"
	The purpose of use includes the full range of uses to which the Tribe and its members have always put the springs and fountains, including as a water source for consumptive use, for wildlife and plant habitat for hunting and gathering uses, as well as other tribal traditional, cultural, spiritual, ceremonial, and/or religious uses – as components of a water right necessary to fulfill the homeland purpose of the Nez Perce Reservation pursuant to the documents referenced in Section 9 and the provisions in Section 10, infra.
	Basis of Claim: The legal basis for this water right includes the following: the reservation of aboriginal rights recognized in United States v. Winans, 198 U.S. 371 (1907), and its progeny; the Treaty of 1855 between the United States of America and the Nez Perce Indians, U.S.-Nez Perce Indians, June 11, 1855, 12 Stat. 957 (“1855 Treaty”); the Treaty of 1863 between the United States of America and the Nez Perce Indians, U.S.-Nez Perce Indians, June 9, 1863, 14 Stat. 647 (“1863 Treaty”); the circumstances surrounding the establishment of the Nez Perce Reservation; the doctrine of federal reserved water rights articulated in Winters v. United States, 207 U.S. 564 (1908), and its progeny; and the interpretation of treaties in Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979), and its progeny.
	Quantity claimed is "Half the natural flow"