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U.S. v. PEND OREILLE PUBLIC UTILITY DIST. NO. 1

Nos. 88-3617 to 88-3619 and 88-3669.

926 F.2d 1502 (1991)

UNITED STATES of America, as Trustee for the Kalispel Indian Tribe and Individual Allottees, Plaintiff-Appellee, and Kalispel Indian Tribe, Intervening-Plaintiff, v. PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1, a Municipal Corp., Defendant, and Department of Natural Resources, State of Washington, Defendant-Intervenor-Appellant. UNITED STATES of America, as Trustee for the Kalispel Indian Tribe and Individual Allottees, Plaintiff-Appellee, and Kalispel Indian Tribe, Intervening-Plaintiff, v. PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1, a Municipal Corp., Defendant-Appellant, and Department of Natural Resources, State of Washington, Defendant-Intervenor. UNITED STATES of America, as Trustee for the Kalispel Indian Tribe and Individual Allottees, Plaintiff-Appellant, and Kalispel Indian Tribe, Intervening-Plaintiff, v. PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1, a Municipal Corp., Defendant-Appellee, and Department of Natural Resources, State of Washington, Defendant-Intervenor. UNITED STATES of America, as Trustee for the Kalispel Indian Tribe and Individual Allottees, Plaintiff, and Kalispel Indian Tribe, Intervening Plaintiff-Appellant, v. PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1, a Municipal Corp., Defendant-Appellee, and Department of Natural Resources, State of Washington, Defendant-Intervenor-Appellee.

United States Court of Appeals, Ninth Circuit.

Decided March 6, 1991.

Attorney(s) appearing for the Case

James P. McNally, Ione, Wash., Jerry K. Boyd and Diane M. Hermanson, Paine, Hamblen, Coffin, Brooke & Miller, Spokane, Wash., for defendant-appellant Pend Oreille.

J. Lawrence Coniff, Asst. Atty. Gen., Olympia, Wash., for state appellant.

Roger J. Marzulla, Asst. Atty. Gen., Vicki Plaut, Margaret Crow, Margaret Klarquist, Elizabeth Ann Peterson, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Robert D. Dellwo and Brian Collins, Dellwo, Rudolph, & Schroeder, Spokane, Wash., for intervenor-plaintiff.

Before BROWNING, SCHROEDER and FLETCHER, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

The Kalispel Indian Reservation in northeastern Washington was established by President Woodrow Wilson by Executive Order No. 1904 on March 23, 1914. The Pend Oreille River forms the western boundary of the reservation. In 1955 the Pend Oreille Public Utility District (PUD) completed construction of the Box Canyon Dam downstream from the reservation.

Prior to construction of the dam, the water level of the river as it passed...

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