Washington Courts: Judicial News Report Detail

Is it time for water courts?

It's not a question of `if' but `when' water rights cases will begin to deluge superior courts across the state.

Exponential increases in water usage have created huge surges in water permit applications. This, combined with competing community, industrial and environmental interests, plus a shift in state water policy, assure water rights litigation--often complex to the nth degree--will soon become common in courts on both sides of the Cascades.

Water rights are a big thing on Judge Walter Stauffacher's docket. In fact, they're the only thing.

For more than 19 years, the Yakima County superior court judge has worked to resolve issues involved in the Yakima River basin adjudication process--referred to as Acquavella--the largest water rights case ever brought in the hundred-plus years of Washington state history.

The "Acquavella" case

The case began in 1977, when the state began to seek legal quantification and identification of more than 40,000 individual water rights in the Yakima River basin. Dwindling water supplies, caused by a drought which dried up streams, turning even the mighty Columbia into a trickle, caused rights-holders and irrigation districts in Benton, Yakima and Kittitas counties to cross-file legal actions against one another as they sought priority usage of water. James T. Acquavella, then a farmer from the lower valley, was the first right-holder named in the action.

The only piece of litigation Stauffacher has heard since he formally retired six years ago, has become a project requiring huge amounts of time, administrative organization and devotion by the judge and his staff. Considered an expert for the way he handled the case for four years before he retired, Stauffacher took the case with him into retirement.

Jurisdiction, legal issues

Since this was the first case of its kind and size to be filed in a Washington trial court, several major, precedent setting, legal issues had to be decided prior to start-up of the case.

• Jurisdiction: Federal and tribal interests come first. Because of this, the first four years (1977-81) were spent dealing with jurisdictional issues--whether the case should be tried in state or federal courts. In 1981, jurisdiction over all claims was given to Yakima County Superior Court.
• Irrigation districts: Could process be served against irrigation districts alone, or did each individual claimant located within the district have to be served? In

  The State of Washington, Department of Ecology vs. James J. and Ellen T. Acquavella, et al., Sunnyside Valley Irrigation District, the Washington Supreme court decided irrigation districts could represent the interests of individuals, significantly reducing the number of claimants involved.

• Judicial control: Stauffacher went after an amendment to state law that would allow judges to get first analysis of all evidence in major water rights claims. Purpose: to put the judge in charge of claims which include either federal or other, large reclamation interests. "This was beneficial in the sense that it sped up the entire case, by having the judge work directly on the major claimant pathway, and the referee on the others," explained Sidney Ottem, Stauffachers' only legal assistant. "Also, these cases often involve too many legal issues for the referee to decide."

It also took an amendment to the state constitution to allow Stauffacher to continue to preside over the case after his formal retirement from the Yakima County Superior Court in 1988. Essentially, the amendment allowed Stauffacher to continue on as a paid judge pro tem. Without the amendment, each individual claimant would have had to concur with Stauffacher's assignment to the case as a pro tem judge.

Getting organized

Given the number of claims involved, an efficient way of processing the case had to be developed. Stauffacher's first step was to divide claimants into four "pathways" based on their geographic distribution and legal interests within the basin:

• Sub-basin pathway: Based on the 31 Yakima River tributaries within the basin.
• Major claimant pathway: Includes all 21 irrigation districts, plus cities, towns, and canal company interests.
• Yakama Nation interests: Includes federally reserved Indian rights.
• Other federal interests: Takes in non-Indian federal interests, including those of the Bureau of Reclamation, the six federally-maintained reservoirs in the basin, the national parks and forests, and the U.S. Army firing range.

The state Department of Ecology, pursuant to state statute, funded a court referee to aid the judge in the case. The referee performs as an arm of the court, hearing testimony and collecting evidence for all non-major claimants in the case. Aided by a technical writer and advisor, the referee prepares a report for each claim. "The referee takes up most of the slack, which helps take a lot of stress off of the court," Ottem said. Stauffacher, however, personally hears all evidence presented by major claimants in the case.

The court holds an evidentiary hearing after a report is completed for each claim. At this point, the court either grants an exception, denies an appeal, or remands the case back to the referee for further investigation.

Paper tiger

Not suprisingly, the process generates huge amounts of paperwork for the court. "We have around 12,000 court documents on SCOMIS," said Ottem, "If we try to access SCOMIS during the day, we will shut down access to all other court clerks throughout the state." To avoid this, the Yakima clerk comes to work at 7 a.m. to input data, then logs off by 8:30.

File storage must allow for space limitations, yet provide easy reference. Three large file cabinets contain all the court documents that have been filed in the case. These are divided by subject and coded under one of 16 different colors.

Space limitations require that evidentiary material be stored in the basement of the courthouse. "The amount of evidence would blow your mind," said Ottem. "We have a room in the basement where a party can view another person's evidence. It would be impossible for us to provide each claimant with evidence information on all the others."

Keeping claimants up-to-date on what is going on in the case has proven to be another challenge. Since 1981, monthly newsletters have been mailed to every party. "It costs a great deal to send several thousand of these out each month," said Ottem, "but it is the only way we can solve the due process problem."

The future

So far, adjudication reports have been completed for nine of the thirty-one sub-basins, and evidentiary hearings have been conducted for all of the twenty-one irrigation districts. There's hope the case will be concluded before the advent of a new century in the year 2000.

But a key to meeting that deadline is funding. Stauffacher requested $250,000 in state funds to support a year's worth of much-needed help, including two technical writer/advisors, and a secretary. After a long wait, word came April 4 that his request had been granted.

Next...

Trends in water rights legislation--what impact will they have on superior court caseloads?