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LUMMI INDIAN NATION v. STATE

No. 81809-6.

241 P.3d 1220 (2010)

LUMMI INDIAN NATION; Makah Indian Tribe; Quinault Indian Nation; Squaxin Island Indian Tribe; Suquamish Tribe; and the Tulalip Tribes, federally recognized Indian tribes; Joan Burlingame, an individual; Lee Bernheisel, an individual; Scott Cornelius, an individual; Peter Knutson, an individual; Puget Sound Harvesters; Washington Environmental Council; Sierra Club; and The Center for Environmental Law and Policy, Respondents/Cross-Appellants, v. STATE of Washington; Christine Gregoire, Governor of the State of Washington; Washington Department of Ecology; Jay Manning, Director of the Washington Department of Ecology; Washington Department of Health; and Mary Selecky, Secretary of Health for the State of Washington, Appellants/Cross-Respondents, Washington Water Utilities Council; Cascade Water Alliance, and Washington State University, Appellants/Cross-Respondents.

Supreme Court of Washington, En Banc.

Decided October 28, 2010.

Attorney(s) appearing for the Case

Michael Paul Ruark , Attorney at Law, Lake Forest Park, WA, Alan Myles Reichman , Stephen H. North , Mark Hodgeman Calkins , Office of the Attorney, Philip Thomas McDonald , Joseph Anthony Rehberger , Cascadia Law Group, P.L.L.C., Olympia, Mary E. McCrea , Attorney at Law, Winthrop, WA, Adam Waldon Gravley , Tadas A. Kisielius , GordonDerr, L.L.P., Seattle, WA, for Appellants/Cross-Respondents.

Janette K. Brimmer , Kristen L. Boyles , Earthjustice, John B. Arum , Attorney at Law, Brian Cammiade Gruber , Ziontz Chestnut Varnell Berley & Slonim, Mason D. Morisset , Morisset Schlosser Jozwiak & McGaw, Seattle, WA, Shaun Alaric Goho , Harvard Law School, Cambridge, MA, Harry Laurence Johnsen, III , Attorney at Law, Bellingham, WA, Karen Allston , Quinault Indian Nation, Taholah, WA, Kevin R. Lyon , Squaxin Island Legal Department, Shelton, WA, Melody L. Allen , Suquamish Tribe , Office of Tribal Attorney, Suquamish, WA, Kimberly Louise Ordon , Attorney at Law, Duvall, WA, A. Reid Allison III , Tulalip Tribes, Tulalip, WA, for Respondents/Cross-Appellants.

Thomas Mann Pors , Law Office of Thomas M. Pors, Seattle, WA, amicus counsel for Firgrove Mutual Water, Fruitland Mutual Water Company, Graham Hill Mutual Water Company, Inc., Mt. View-Edgewood Water Company, Nob Hill Water Association, Rainier View Water Company, Spanaway Water Company, Summit Water and Supply Company & Washington Water Services Company.

CHAMBERS, J.

¶ 1 In 1998, this court held that under then-existing law, new private water rights did not fully vest until the water was put to a beneficial use, and not merely when the "pumps and pipes" capacity to use the water was built. Dep't of Ecology v. Theodoratus, 135 Wn.2d 582, 586, 957 P.2d 1241 (1998). We cautioned then that we were not considering municipal water rights...

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