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July 17, 1992

UNITED STATES OF AMERICA, in its own right and on behalf of TORRES-MARTINEZ BAND OF MISSION INDIANS and the Allottees therein, Plaintiffs,
THE IMPERIAL IRRIGATION DISTRICT, a Public Irrigation District, and COACHELLA VALLEY WATER DISTRICT, a Public Irrigation District. Defendant.

The opinion of the court was delivered by: JUDITH N. KEEP

 This matter came before the court for court trial June 9-30, 1992. Plaintiffs are the United States of America and the Torres-Martinez Band of Mission Indians; hereinafter the words "band" or "Torres-Martinez" will refer to both the United States and the Torres-Martinez Band of Mission Indians unless otherwise indicated. They were represented by Peter Monson and Lauren Soll of the U.S. Department of Justice. Defendant Imperial Irrigation District (hereinafter IID) was represented by Paul D. Engstrand and Gerald Smolen, Jr. Defendant Coachella Valley Water District (hereinafter CVWD) was represented by Justin McCarthy and Steven B. Abbott.

 Having considered the voluminous body of evidence and the well-prepared arguments of counsel, the court makes the following preliminary observations, findings of fact and conclusions of law.

 I. Preliminary Observations

 The court wishes to make two preliminary observations. First, the court believes that all counsel in this case deserve formal commendation for their preparation and professionalism. This is a difficult case for a number of reasons and all counsel spent an enormous amount of time mastering the often contradictory and convoluted historical record which is the nucleus of this lawsuit. Also, in a profession where "civility" has become a goal rather than a habit, the courtesy of counsel was remarkable in the face of the tension of a complicated trial with over 2,000 exhibits generated.

 Because critical acts occurred in the 1920's and in 1949 and 1950, in the fact-finding process the court has had to rely on historian witnesses in analyzing "snippets" of history. Key witnesses have died and key exhibits have disappeared during the last 70 years. In the records which have been located, both sides to this lawsuit can find evidence which reasonably supports their different positions, and finding percipient witnesses to explain this evidence is, obviously, impossible. At times notes or file stamps in the same exhibit reasonably can be used by both sides to corroborate such things as their theory of the intent of the President in the 1924 and 1928 land withdrawals, which intent is central to a resolution of this case. Without the excellent assistance of counsel, resolution of this case would have been impossible; with their aid, it is nearly so. So conceding, the court turns to the facts of this case.

 II. Jurisdiction, Venue, and a Summary of the Issues Requiring Adjudication

 In this action, the United States of America is suing the defendant water districts on its own behalf and on behalf of the Torres-Martinez Band of Mission Indians and their allottees. There is one cause of action, for trespass. The theory of the case is that irrigation water draining from the agricultural fields located in the two water districts flows into the Salton Sea, raising the level of the Sea and causing it to inundate Indian lands. The plaintiffs seek damages for trespass from 1924-1992 excluding July 18, 1966 through September 29, 1976, pursuant to the statute of limitations provided for in 28 U.S.C. § 2415(b) and (g). Also, they seek damages to compensate them for the cost of restoring the soil and future damages for 10 years on the theory that it will take 10 years for the Sea to evaporate. Finally, they seek an injunction against continued inundation.

 Defendants offer the affirmative defense of consent. Specifically, they allege that the inundation of the Indian land occurred with the consent of the government pursuant to public land withdrawals in 1924 and 1928. Alternatively, defendants argue that if there was no consent when the public land was withdrawn in 1924 and 1928, there was consent by the government in 1950 when Congress specifically recognized a boundary for the Salton Sea 220 feet below sea level and authorized the Secretary of Interior to purchase Indian lands located within the -220' perimeter.

 Federal jurisdiction and venue are proper. This court has jurisdiction because this is a civil action for trespass brought by the United States as plaintiff. 28 U.S.C. § 1345. The complaint seeks declaratory relief as well as monetary damages and an injunction. 28 U.S.C. § 2201. Venue is appropriate because a portion of the subject reservation lands are located in the Southern District of California, both defendants maintain their principal place of business in the State of California, and defendant IID maintains its principal place of business in the Southern District of California. 28 U.S.C. § 1391(b).

 III. Background Facts

 A. The Salton Sea

 The Salton Sea straddles the common boundary of Riverside and Imperial Counties. It is an inland salt water lake lying within the Salton Basin of Southern California. The basin encompasses parts of Riverside, Imperial, and San Diego Counties, as well as part of Baja California. Its low point is 275 feet below sea level. As of late 1990, the sea level was -227.7'; *fn2" it contained about 6,828,850 acre feet of very salty water and spanned a surface area of approximately 239,750 acres.

 The Salton Basin is a closed basin which has no natural outlet to the Pacific Ocean. Water within the basin drains by gravity into the Salton Sea. Water depletion from the Sea is primarily by evaporation as the soil beneath the Sea is composed predominately of clay. During the 400 years prior to 1905, the Sea was essentially dry except for occasional excessive run-off resulting from large storms. Around 1900, when the Sea was at its natural low level, there was salt mining on the edge of the Sea.

 From 1905-07 the present Sea was formed when the Colorado River overflowed its banks and water drained into the Salton Basin. In 1906 its highest level of -195' was reached. The court finds the plaintiffs have proven that the Sea would have receded to its pre-flood level by 1923 but for irrigation in the Imperial Valley and the Coachella Valley. That irrigation has caused the level of the sea to fluctuate, but essentially it has been at its current level of -227.5' or greater since 1924.

 The Salton Sea has a high salt content for a number of reasons, chief of which are the following. First, the soil in the area is salty and water which drains through the soil into the Sea carries salt with it. There was a previous lake in the area which deposited salt into the low point of the Salton Sea by the process of drainage and evaporation. Second, salt mining was occurring at the edge of the Sea at the time of the 1905-07 flood. All of the salt being mined was carried into the Salton Sea via the flood waters. Third, the Colorado River water used for irrigation is very salty. Because it contains so much salt, approximately l5% water in excess of a plant's consumptive use must be applied to plants and then carried away as salty drainage water in order to irrigate the plants and leech the soil. Gravity drains this water into the Salton Sea.

 B. Torres-Martinez Land Involved in this Lawsuit

 The original Torres-Martinez reservation was created in 1876; it consisted of one 640-acre section of land approximately eight miles northwest of the Salton Sea. In 1891, by executive order, the United States reserved additional land for the Torres-Martinez Indians; pursuant to Congressional authority, the Secretary of Interior withdrew additional lands in 1909 for the benefit of the band. The land reserved in 1891 and 1909 was adjacent to the Salton Sea. Many acres were actually inundated with flood water at the time of the withdrawal in 1909. Indeed, all or part of each of the 22 sections of land (over 10,000 acres) reserved in 1909 were covered by water and formed part of the lake bed. All or part of 14 sections of land withdrawn in 1891 were also inundated.

 Because the 1891 withdrawal preceded the flood, the parcels withdrawn at that time were not inundated. However, the parcels withdrawn in 1909 were inundated at the time of the withdrawal. The reason this obviously inundated land was withdrawn was based upon a request by the Superintendent of the Martinez Indian School who wrote as follows:

 Ex. 2007. Hence, it appears to have been believed that the Sea would recede rapidly and that the land reserved would generate a fresh water supply to the Indian land adjacent to the Sea.

 Nonetheless, the bulk of the band's land involved in this lawsuit is still inundated by the Salton Sea in whole or in part today. It has been continuously inundated since 1905 due to the development of the agricultural industry in the Imperial Valley and Coachella Valley in the post-flood years. Whereas it was reasonable in 1909 to assume that the Salton Sea would recede by evaporation to pre-flood levels by 1923, this assumption was based upon a belief that the source of water draining into the sea would remain the same as prior to the flood. The advent of agriculture in the Imperial Valley and the Coachella Valley, with its attendant irrigation, leeching, and drainage significantly changed the inflow into the Sea.

 The tribal land involved in this lawsuit was classified as non-agricultural until 1950. This is because the soil is composed of a high percent of clay, which, until farming techniques were improved around 1950, made the soil impractical to farm. Some parcels are still classified as non-irrigable but many are classified as capable of growing field crops (alfalfa, cotton, corn), row crops (carrots), and tree crops (citrus groves). The Indian lands are not within the Coachella Valley Water District; hence, for farming, they are dependent on underground water.

 C. The Imperial Valley and IID

 By the late 1800's, the Salton Basin was recognized as a natural agricultural area. In particular, Imperial Valley and parts of the Coachella Valley were perceived as having good soil, which soil with water would be conducive to agriculture. Because of the natural slope of the basin, water would naturally drain by gravity to the Salton Sea so landlocked farms would have a vehicle for leeching and irrigating the soil and removing the salty drainage water.

 In the late 1800's, the California Development Company built the Alamo Canal which began importing Colorado River water to the Imperial Valley in 1901. The Alamo Canal water flowed first to Baja California for Mexican use and then to Imperial Valley. This canal was the genesis of the agricultural industry in Imperial County. For example, in the Imperial Valley, approximately 140,000 acres were farmed in 1908, and over 400,000 acres were farmed in 1919.

 The Alamo Canal proved unsatisfactory because the amount of water flowing to the Imperial Valley from Mexico was inconsistent and unpredictable, and because silt frequently clogged the canal. For these reasons, in a message to Congress in 1907, President Roosevelt recommended construction of the All-American Canal. That canal finally was completed and started delivering water to Imperial County in 1940. Essentially, the All-American Canal operated on the same principal as the Alamo Canal: by gravity, the Colorado River water was transported from Arizona to Imperial County. After its use for farming, the drainage water flowed by gravity to the Salton Sea.

 In 1909, the Imperial Irrigation District (IID) was formed. It assumed the responsibility of providing irrigation water and drainage facilities to the Imperial Valley. It still maintains that responsibility today, and it is for this reason that it is a defendant in this lawsuit.

 D. Coachella Valley and CVWD

 The Coachella Valley developed more slowly than the Imperial Valley, primarily because of water. It should be noted that the Indian lands involved in this lawsuit are located in the lower Coachella Valley, on the northwest side of the Sea. Until 1950, the settlers in the Coachella Valley irrigated their lands with groundwater, which the court finds was subject to overdrafts as early as 1920. The CVWD was formed in 1918; a primary function of the water district was to manage the groundwater basin and obtain imported supplies of water to augment the groundwater supply.

 After World War II, the Coachella Valley grew in population and acres of agricultural use, primarily because it was known that the Coachella Valley would be receiving Colorado River water via the Coachella Canal, a joint construction project with the United States government and the CVWD. The Coachella Canal began delivering water to Coachella in 1950.

 As is true with farming in the Imperial Valley, because of the salty soil, and because of the high salt content in the Colorado River water, extensive leeching and drainage must occur to control the salt content of the soil and keep it productive. The salty drainage water ...

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