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United States v. Braren



The State of Oregon and the Brarens, the landowners, appealed the district court’s declaration of tribal water rights involved in an Oregon state adjudication. Oregon argued that the claims were not ripe and that the district court should have abstained from review until final action had been taken in the state’s adjudication of water rights in the Klamath Basin. The Brarens contested the district court’s declaration clarifying the tribal water rights. The Ninth Circuit agreed with Oregon that the dispute was not ripe and thus did not reach the question of abstention or the district court’s declaration on the merits of the case.

Water rights within the Klamath Basin have been the subject of dispute between the United States, Oregon, the Klamath Tribes (Tribes), and many individual landowners over the last twenty-five years. In 1979, in United States v. Adair (Adair I),[1] the district court addressed many of the issues involved, including the nature and scope of water rights granted to the Tribes by treaty. Though it retained jurisdiction over the case, the court left the allocation of all Klamath Basin water rights to Oregon.[2] This arrangement–with the court announcing standards and the state applying and quantifying the rights–was approved by the Ninth Circuit in United States v. Adair (Adair II).[3] Thus, Oregon proceeded with an extensive state adjudication pursuant to the standards set out for allocation by the district court.

In 1999, Oregon’s Water Resources Department (Water Department) Adjudicator issued a “Summary and Preliminary Evaluation.” In the announcement, the Adjudicator indicated that the standard for evaluating the tribal claims would not include water rights sufficient to support the gathering of plants.[4] By 2001, 5,654 contests had been filed and five cases had been initiated as a result, consolidating 2,267 of those contests. According to Oregon procedures, these cases would be heard by an administrative panel where parties would have the opportunity to initiate discovery, file motions, subpoena witnesses, testify, and submit documentary evidence.[5] After the hearing panel issues proposed orders, the Water Department would review those orders and issues its own resolution of the entire adjudication in its “Findings of Fact and an Order of Determination.”[6]

However, in 2001, the United States and the Tribes filed suit, seeking a declaratory judgment that the Tribes, by treaty, had a water right to support the gathering of plants. Though Oregon argued that the case was not ripe, the district court announced a process for deciding the tribal water rights and held the individual defendants were precluded by the conclusive decisions in both Adair I and Adair II from arguing the Tribes had lost their treaty rights to hunt, fish, and gather.[7]

On appeal, Oregon renewed its position that the case was not ripe and that the district court should have abstained from deciding the case, based on a theory announced in Colorado River Water Conservation District v. United States.[8] The Brarens were the only individual landowners named as defendants in the original action to appeal the merits of the district court’s declaration.[9]

The Ninth Circuit addressed the ripeness question first. The Ninth Circuit reviews ripeness de novo and in two parts: first, the constitutional component and then any prudential issues.[10] The constitutional ripeness of a declaratory judgment action “depends upon whether the facts alleged . . . show that there is a substantial controversy . . . of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”[11] The court held that this case clearly satisfied the constitutional ripeness test because the Water Department adopted a standard for Tribal water rights that allegedly conflicted with the holding of Adair I and Adair II.

The Ninth Circuit then examined the prudential component of ripeness. In deciding whether the claims were prudentially ripe, the court considered first whether the issues were fit for a judicial decision and then whether withholding consideration would impose hardship on the parties.[12] Primarily, the court wanted to ensure that the declaratory judgment procedures would not be used to preempt or prejudice issues before the Water Department.[13]

Fitness for judicial decision depends on whether the issues presented are primarily legal–meaning no further factual record is necessary–and whether the challenged action is sufficiently final.[14] Based on these two elements, the Ninth Circuit held that this dispute did not meet the fitness requirement. First, the court determined the issues still required factual development. The court held that the record did not show the standard that the Water Department would actually apply.[15] While the United States and the Tribes alleged that the Preliminary Evaluation established an erroneous standard, the Water Department was not bound to apply that standard. Indeed, the court pointed out that the contest panels, the Water Department, and the Oregon courts might all apply different standards.[16] Second, the court determined the Water Department’s action was “nowhere near final.”[17] The adjudication required at least two more steps before it would be clear what standard the Water Department would adopt. For instance, the court pointed out the contest panels might not follow the standard set out in the Preliminary Evaluation and the Water Department could set aside the conclusions of those panels.

The Ninth Circuit further held that there would be no hardship to the parties if the court withheld judicial action. The court reasoned that the ultimate relief sought by the parties–the distribution of their share of water–could not be granted until the termination of the adjudication. Thus, declaratory relief beyond the standards already set out by the courts in Adair I and Adair II would be futile.

Finally, the Ninth Circuit distinguished the current dispute from those at issue in Adair I and Adair II. In those cases, the dispute was over whether the Tribes had any right to water in the Klamath Basin–a purely legal issue. In contrast, this dispute was solely about the standard to determine the extent of the Tribe’s water rights for purposes of allocation. These questions, the court decided, could not be sufficiently addressed until the conclusion of the adjudicatory process. The Ninth Circuit vacated the district court’s opinion and remanded for an order to stay federal proceedings pending the completion of the state adjudicatory process, including the related appellate review.

[1] 478 F. Supp. 336 (D. Or. 1979), aff’d, 732 F.2d 1394 (9th Cir. 1983).

[2] Id. at 349-50.

[3] 723 F.2d 1394, 1419-20 (9th Cir. 1983).

[4] United States v. Braren, 338 F.3d 971, 973 (9th Cir. 2003).

[5] Or. Admin. R. 137-003-0515, 137-003-0501 to -0700 (2003).

[6] Or. Rev. Stat. § 539.130 (2000).

[7] United States v. Adair, 187 F. Supp. 2d 1273, 1275 (D. Or. 2002), vacated by United States v. Braren, 338 F.3d 971 (9th Cir. 2003).

[8] 424 U.S. 800 (1976).

[9] Braren, 338 F.3d at 974.

[10] Id. at 974-75.

[11] Id. at 975 (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)) (internal quotations omitted)).

[12] Id. at 975.

[13] Id. (quoting Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 246 (1952)).

[14] Winter v. Calif. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1989).

[15] Braren, 338 F.3d at 976.

[16] Id.

[17] Id.

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