                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAR 2 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 CHARLENE DELAUNAY and
 MANUEL DELAUNAY,

          Plaintiffs - Appellees,
                                                        No. 02-8097
 v.
                                                    (No. 01-CV-1039-B)
                                                         (D. Wyo.)
 RUSTY COLLINS, GARY COLLINS
 and FLOYD COLLINS,

          Defendants - Appellants.




                             ORDER AND JUDGMENT *


Before KELLY, HENRY, and LUCERO, Circuit Judges.


      This appeal stems from a feud between neighbors in Wyoming over access

to and use of water on tribal lands. Not typical water law plaintiffs, Charlene

Delaunay, and her husband Manuel Delaunay, alleged that defendant Floyd

Collins and his two sons, Gary and Rusty, (the “Collins”) intentionally blocked

their water supply because of Manuel’s race in violation of 42 U.S.C. §§ 1981,



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1982, and 1985(3). The Collins are enrolled members of the Northern Arapaho

Tribe of the Wind River Reservation. Charlene is also an enrolled member;

Manuel is a Caucasian, French citizen. At trial, the jury unanimously found for

the Delaunays and awarded damages in the amount of $350,000. The district

court granted injunctive relief and attorneys’ fees and remitted the amount of the

compensatory damages award. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and AFFIRM.

                                         I

      In 1996, Charlene Delaunay purchased eighty acres of land on the Wind

River Reservation and, in 1997, acquired a land lease on trust property. Charlene

and Manuel planned to use their land for sheep ranching. Forty acres of the

Delaunays’ fee property have a state water right with a 1905 priority date through

Little Wind River Ditch Number 5, and fifty-seven acres of their lease property

have a reserved water right of 1868, also through the Little Wind River Ditch

Number 5. Another tract of land, Allotment 1125, held in trust by the United

States on behalf of Floyd Collins, similarly includes a reserved water right of

1868 through Little Wind River Ditch Number 5 and is adjacent to the Delaunays’

lease-held land. Floyd’s son Gary Collins is the tribal water engineer on the

reservation and, according to his testimony, is responsible for administering water

within the Wind River Indian Reservation and enforcing the tribal water code.


                                         2
      Altercations between the Delaunays and the Collins began in 1997 when,

after Manuel declined to leave the gate on Floyd’s trust land, Rusty testified that

he drove his truck into Manuel’s truck, pushing it back from the gate. A second

incident occurred on July 25, 1999, when after seeking to prevent Gary from

walking cattle through a neighbor’s allotment, Manuel testified that Gary pushed

him into a fence, gave him a black eye and a broken nose, and placed a wire ring

around his neck. Charlene testified that as she hit Gary with a shovel to protect

Manuel, Gary told Manuel that he had “no right to be on tribal lands” and yelled

to the couple, “you’re just visitors.” (R. at 151.)

      Charlene testified that in September of 1999, Rusty began placing dirt and

gravel in the main ditch that runs through Floyd’s trust land and that serves the

Delaunays’ land, blocking the water flow to their property. Rusty testified to

placing additional obstructions in the ditch in May 2000 and late August 2000.

In 1999, consulting with a prior non-Native American landowner who reported

similar problems with the Collins, Charlene alleged that she and Manuel decided

they had to sell one-third of their sheep flock. Although Gary admitted that the

tribal water board directed Rusty to desist from blocking the main ditch, the

Delaunays testified that the blockages resumed in July 2001, and that Gary did

nothing to correct or prevent them.




                                          3
      In addition to the physical altercations and water obstructions, the

Delaunays also alleged that they received discriminatory treatment when they

enlisted the help of the tribal water board. According to Charlene, at a board

meeting in July 2000, Gary told the Delaunays to leave the ditch alone, and that

Manuel had no right to be on the reservation or on tribal land. Yet at that same

meeting Gary proceeded to facilitate the cooperative resolution of a water dispute

between two other families. Moreover, although the board informed the

Delaunays in September 2000 that it would not handle private ditch matters, Gary

admitted that the board later realized that it did have jurisdiction over private

ditches, however, Gary neglected to tell the Delaunays.

      In 2001, the Delaunays brought suit in federal court for damages and

injunctive relief. They claimed that Manuel, as a white, non-Native American,

and Charlene, as his wife, had been subject to race-based discrimination by the

Collins in violation of 42 U.S.C. §§ 1981, 1982, and 1985. In particular, they

claimed that, on account of Manuel’s race, the Collins deprived and conspired to

deprive the Delaunays of equal benefits of the laws through Gary’s abuse of his

position as tribal water engineer. The complaint also alleged that the Collins

deprived the Delaunays of their rights regarding real property by blocking their

water and impeding their ranching and farming operation. The jury returned a

unanimous verdict in favor of the Delaunays and awarded $350,000 in damages.



                                          4
Following the jury verdict, the district court granted the Delaunays injunctive

relief, which, inter alia, enjoined the Collins from interfering with the Delaunays’

water rights and restrained Gary, as water engineer, from administering the water

in Little Wind River Ditch Number 5.

      The district court also ruled on several post-trial motions. It denied the

Collins’ renewed motion for judgment as a matter of law, finding that the

Delaunays presented sufficient evidence of racial animus to allow a reasonable

jury to find for the Delaunays. It proceeded to grant the Delaunays’ motion for

attorneys fees in the amount of $27,151.18 pursuant to 42 U.S.C. § 1988. In

response to the Collins’ motion for a new trial or, in the alternative, for remittitur,

the district court upheld the jury’s finding of liability, but reduced the damage

award to reflect actual damages of $41,224. 24 1 and compensatory damages of

$100,000 for injury to the Delaunays’ physical and mental health. The Delaunays

agreed to accept the reduced judgment and, on September 6, 2002, the district

court entered judgment in favor of the Delaunays in the amount of $141,224.24,

plus costs and attorneys’ fees.

      The Collins now appeal, arguing that the district court erroneously: (1)

failed to give their proposed instruction to the jury; (2) granted injunctive relief;

      1
         The award of actual damages was comprised of $4,800 for lost hay, $200
for a water tank, $90 for a water trough, $3,020 for time spent at meetings and
removing obstructions, $32,923 for lost profit from the sheep business over five
years, and $191.24 in medical bills.

                                           5
(3) denied their motion for judgment as a matter of law; (4) calculated a

remittitur; and (5) awarded attorney’s fees.

                                          II

                                          A

      With respect to the Collins’ motion for judgment as a matter of law, we

review de novo the district court’s denial of such a motion. Turnbull v. Topeka

State Hosp., 255 F.3d 1238, 1241 (10th Cir. 2001). Federal Rule of Civil

Procedure 50(a)(1) instructs the district court to grant judgment as a matter of law

only if “after a party has been fully heard on an issue, there is no legally

sufficient evidentiary basis for a reasonable jury to find for the party on that

issue.” Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001).

Thus, we may only reverse “if the evidence points but one way and is susceptible

to no reasonable inferences supporting the party opposing the motion.” Medlock

v. Ortho Biotech, Inc., 164 F.3d 545, 549 (10th Cir. 1999) (quotation omitted).

      To establish a claim under 42 U.S.C. § 1981, the Delaunays must show

that: (1) they are members of a protected class; (2) the Collins had the intent to

discriminate on the basis of race; and (3) that discrimination interfered with a

protected activity as defined in § 1981—here the right to the “full and equal

benefit of all laws and proceedings for the security of persons and property.” 42

U.S.C. § 1981(a); Hampton v. Dillard Dep’t. Stores, Inc., 247 F.3d 1091, 1101–02


                                          6
(10th Cir. 2001). To establish a claim under 42 U.S.C. § 1982, the Delaunays

must demonstrate that: (1) they are members of a protected class; (2) the Collins

denied the Delaunays rights or benefits connected with ownership of property;

and (3) the Collins would not have denied such rights or benefits in the absence

of racial discrimination. See Zhu v. Fisher et al., 151 F. Supp. 2d 1254, 1258 (D.

Kan. 2001); see also Reeves v. Carrollsburg Condo. Unit Owners Ass’n, 1997 WL

1877201, at *8 (D.D.C. 1997) (holding that homeowner association’s failure to

evenhandedly enforce rules and act upon rule violations among tenants

established potential liability under §§ 1981 and 1982). Section 1985(3) does not

provide substantive rights; rather it provides an additional remedy for conspiracy

to deprive any person of the equal protection of the laws. See Great American

Fed. Sav. and Loan Ass’n. v. Novotny, 442 U.S. 366, 372 (1979).

      In denying the Collins’ motion, the district court found that:

      . . . there was ample evidentiary support which would allow a
      reasonable jury to find for the Plaintiffs on each of their racial
      discrimination claims . . . . Specifically, the Defendants are all
      enrolled Members of the Arapaho tribe, and the Plaintiff Manual
      [sic] Delaunay is a white, non Native American . . . . and Plaintiff
      Charlene Delaunay is an enrolled Arapaho married to Manual [sic].
      This racial composition, combined with the actions and statements
      made by the Defendants to the tribal water board and the Plaintiffs,
      as well as their apparent peaceful interaction with Native American
      neighbors and their not-so-peaceful interaction with non Native
      American neighbors provides one of the many legally sufficient
      justifications supporting the jury’s verdict in favor of the Plaintiffs.



                                       7
Delaunay v. Collins, No. 01-CV-1039-B, slip op. at 6 (D. Wyo. Aug 13, 2002).

Stressing that it is not our role to weigh the evidence, evaluate the credibility of

witnesses, or substitute our conclusions for those of the jury, see Medlock, 164

F.3d at 549 (quotation omitted), we agree with the district court that the

Delaunays presented a legally sufficient basis for the jury to find in their favor.

      At trial, the Delaunays asserted several arguments that would provide such

a basis. First, they claimed that they were members of a protected class because

unlike the Collins who were enrolled members of the Northern Arapaho Tribe,

Manuel was a white non-Native American and Charlene was his wife. See

McDonald v. Sante Fe Transp. Co., 427 U.S. 273, 286–87 (1976) (concluding that

§ 1981 affords protection from racial discrimination to both non-whites and

whites). Second, they claimed that the Collins: (1) interfered with their “full and

equal benefit of all laws and proceedings” under 42 U.S.C. § 1981 (e.g., that

Gary, as tribal water engineer, repeatedly failed to enforce evenhandedly the

water code and directives of the water board); and (2) interfered with their rights

concerning real and personal property under 42 U.S.C. § 1982 (e.g., that the

Collins blocked their water supply and impeded their ranching operation). Third,

the Delaunays proffered evidence of intentional discrimination on the basis of

race, such as statements by Gary that repeatedly characterized Manuel as a visitor

with no rights on the reservation, evidence that other non-Native American


                                           8
property owners experienced confrontations with the Collins, and testimony that

Rusty and Gary acted to resolve water disputes among others through

communication and enlistment of the help of the water board. Finally, the

Delaunays argued that the Collins’ claim—that the Delaunays lacked a ditch

easement and therefore had no rights concerning the ditch—was a pretext for

discrimination. Notably, none of the Collins testified at trial that their reasons for

blocking the ditch were because the Delaunays lacked an easement.

      Taking these claims in their totality, we agree that the Delaunays presented

legally sufficient evidence to sustain the jury verdict. Accordingly, we affirm the

district court’s denial of judgment as a matter of law.


                                          B

      We turn to the Collins’ claim that the district court erroneously refused

their proffered jury instruction. The refusal to give a particular jury instruction,

“even if it is an accurate statement of the law, is within the discretion of the

district judge.” United States v. Pena, 930 F.2d 1486, 1492 (10th Cir. 1991).

Reversal is proper if, upon examination of the instructions as a whole, a

“deficient jury instruction is prejudicial.” Coleman v. B-G Maint. Mgmt. of

Colo., Inc., 108 F.3d 1199, 1202 (10th Cir. 1997) (citations omitted).

      To preserve the issue on appeal, Federal Rule of Civil Procedure 51

requires that a party both proffer an instruction and timely object to the refusal to

                                          9
give the requested instruction, see Giron v. Corrs. Corp. of America, 191 F.3d

1281, 1288–89 (10th Cir. 1999), or, in the alternative, demonstrate that the

“district court is aware of the party’s position and it is plain that further objection

would be futile.” Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1172

(10th Cir. 2003) (quotation omitted). A party’s failure to preserve the issue limits

our review to plain error, and we may reverse only where the failure to give a

proffered instruction is patently erroneous and would result in a fundamental

injustice. Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1227 (10th Cir. 2001)

(quotations omitted). Although the Delaunays argue on appeal that the Collins

did not properly object to the jury instructions given by the district court, we need

not reach this question because we conclude that the district court’s instructions,

viewed as a whole, were neither prejudicial nor in plain error.

      The Collins’ proffered jury instruction would have had the jury conclude

that “since the plaintiffs have no easement for a ditch across the defendant’s land,

they have no right to enter the defendant’s land” and therefore the Collins’ failure

“to allow water to cross their land or to permit plaintiffs to maintain the ditch

across the defendant’s land” cannot constitute a violation of the Delaunays’

rights, unless “the basis of the defendants actions in denying the plaintiffs access

to clean the ditch or allow water to pass through Floyd Collin’s land were based

solely on the race of Manuel Delaney.” (R. at 116 (errors in original).)


                                           10
      Because the district court determined that it could not conclude as a matter

of law that the Delaunays did not have an easement, it refused the Collins’

proposed instruction and instead instructed the jury as follows:


             You are instructed that an easement is a way in which one may
      obtain the right to use the land of another for a limited purpose, with
      all other rights in title remaining in the owner.

            If you find that the plaintiffs have established by a
      preponderance of the evidence that a ditch and ditch maintenance
      easement exists in their favor, the plaintiffs then have a limited right
      to have the ditch cross the defendant Floyd Collins’ property and the
      water and a right to enter onto his land for the purposes of
      maintaining the ditch.


(R. at 1076 (emphasis added).) It proceeded to instruct the jury on the elements it

would need to find in order to conclude by a preponderance of the evidence that

the Delaunays had established an easement by prescription, grant, or agreement.

      On appeal, the Collins argue that the district court’s refusal to give the

Collins’ instruction—which would have instructed the jury that Delaunays lacked

an easement as a matter of law—constitutes prejudicial error. In support of their

argument they reason that: (1) the Delaunays did not offer written proof of an

easement; (2) an easement may not be obtained on land held in trust by the United

States by prescription or adverse possession because the United States is immune

from suit, cf. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 930 (10th

Cir. 1975) (upholding dismissal of property claims as to the United States because

                                         11
it had not consented to the suit); and (3) in Wyoming, a certificate of

appropriation, which grants a party water rights, does not automatically grant a

ditch easement, see Collett v. Morgan, 128 P. 626, 627 (Wyo. 1912) (explaining

that where a certificate of appropriation exists but the parties dispute their

corresponding ditch rights “that question . . . must be settled by the agreement of

the parties or by a proper [court] proceeding . . . .”); cf., Wallis v. Luman, 625

P.2d 759, 766 (Wyo. 1981) (clarifying that a certificate of appropriation “amounts

to prima facie evidence of ownership of a ditch right, which is rebuttable and

alone may not grant an easement across another’s land for the means of

conveyance described”) (emphasis added).

      Upon our review of the record and the jury instructions as a whole, the

Collins’ argument fails to persuade us for two reasons. First, the district court did

not precisely define the nature of an easement for ditch use and maintenance;

evidence in the record suggests that a jury reasonably could find that the

Delaunays had permission to convey their adjudicated water rights through the

ditch across Floyd’s property pursuant to custom, implicit agreement, or a general

practice of permissive use on tribal lands. Indeed, according to testimony at trial

and the Collins’ brief on appeal, enrolled tribal members and non-enrolled close

family members are entitled to go onto reservation lands without specific

permission. Charlene’s uncle, the previous owner of her fee-held land and an


                                          12
enrolled tribal member, testified he had no problem conveying his adjudicated

water that flowed through the ditch on the Collins’ land. Floyd himself testified

that he had done ditch maintenance work on upstream trust property without any

agreement because permission was not necessary to enter trust land. In addition,

Gary admitted that if the Delaunays lacked a ditch easement, the Collins similarly

lacked an easement to maintain an upstream ditch. Charlene is an enrolled

member of the Arapaho Tribe, and Manuel is her husband; thus a jury could

reasonably find that their use and maintenance of the ditch on Floyd’s trust

property constitutes permissible use of reservation land. 2 Moreover, we again

note that none of the Collins testified at trial that their reasons for blocking the

ditch were because the Delaunays lacked an easement.

      Second, even if the district court erred in refusing the Collins’ proffered

instruction, we conclude that the error would not have prejudiced the Collins.

The district court repeatedly instructed the jury that it must determine that the

Collins discriminated against the Deluanays on the basis of race in order for the

Delaunays to prevail under 42 U.S.C. §§ 1981, 1982 and 1985. In addition, to

find for the Delaunays on their §§ 1981 and 1985 claim, the jury was required to

find that the Collins deprived the Delaunays of equal benefits under the law; to



      2
        We note that the Collins did not introduce evidence that Manuel lacked a
permit or permission to be on the reservation.

                                          13
find for the Delaunays on their § 1982 claim, it was required to find that the

Collins denied the Delaunays their rights regarding the operation of their farm and

ranching business. The district court cautioned further: “If you find that race

was not a substantial factor in the defendants’ actions, you must find for the

defendants.” (R. at 1066.)

      Moreover, the Collins’ arguments on appeal notwithstanding, their

proposed instruction squarely states that regardless of whether an easement

existed, a jury could find that the Delaunays’ rights had been violated if it

concluded that “the defendants’ actions in denying the plaintiffs access to clean

the ditch or to allow water to pass through Floyd Collins’s [sic] land were based

solely on the race of Manuel Delaney [sic].” (R. at 116.) Because the jury found

that the Collins violated §§ 1981, 1982, and 1985, accordingly they must have

found—consistent with the Collins’ proposed instruction—that the Collins actions

were motivated by racial animus. Moreover, it stands to reason that the jury

found that the Collins intentionally deprived the Delaunays of equal benefits of

the law and their rights regarding real property, thus satisfying the elements of a

§§ 1981 and 1982 claim. We therefore conclude that the district court’s refusal of

the Collins’ proposed jury instruction was neither prejudicial nor plain error and

therefore squarely within its discretion.




                                            14
                                          C

       As to the Collins’ argument that the district court erred in granting

injunctive relief, we review a decision to grant an injunction for abuse of

discretion. Prows v. Fed. Bureau of Prisons, 981 F.2d 466, 468 (10th Cir. 1992).

The district court restrained the Collins from interfering with the appropriated

water to which the Delaunays are entitled and which flows through Little Wind

River Ditch Number 5. It also restrained Gary, as tribal water engineer from

administering water in the ditch because of his conflict of interest. On appeal, the

Collins repeat their syllogism that because the Delaunays lacked an easement for

the portion of the irrigation ditch that crossed Floyd’s trust land, they had no

rights which the Collins could violate, and, therefore, that injunctive relief was

improper.

      This argument, however, misapprehends facts regarding the historical

conveyance of water on the reservation as well as the harm and relief in question.

The Delaunays complained of an ongoing pattern of civil rights

violations—namely, physical assault, interference with their ability to conduct

their ranching operation, and a discriminatory administration of the tribal

regulations pertaining to water distribution on reservation land—based on

Manuel’s race. Given our analysis above that a jury could reasonably find by a

preponderance of the evidence that the Delaunays use of the ditch was permissive,


                                         15
and given the jury’s finding that the Collins’ actions violated the Delaunays’ civil

rights, we conclude that the district court did not abuse its discretion in granting

injunctive relief.


                                          D

       Although the district court denied the Collins’ motion for a new trial, it

proceeded to remit the jury award of $350,000 to $141,224.24, representing

$41,224.24 in actual damages and $100,000 in compensatory damages. On

appeal, the Collins contest the amount of remittitur that the district court granted.

They reason that because the Delaunays lack proof of an easement, the Delaunays

may only claim damages for medical bills resulting from the fight between

Manuel and Gary.

      We review the district court's decision to grant a remittitur on the grounds

that the jury awarded excessive damages for abuse of discretion. See Fitzgerald v.

Mountain States Tel. and Tel. Co., 68 F.3d 1257, 1261 (10th Cir. 1995); see also,

Sheets v. Salt Lake County, 45 F.3d 1383, 1390 (10th Cir. 1995) (reviewing the

denial of a remittitur for a “gross abuse of discretion”) (citations omitted). As

discussed above, in addition to considering whether the jury could find that the

Delaunays had permission to convey water through the ditch on Floyd’s trust land,

we consider the Delaunays’ rights to equal benefits of the laws and to real

property such as their ranching and farming operation. The Delaunays set forth


                                          16
substantial testimony of emotional and physical hardship, financial and personal

stress, and concern for their safety in support of an award of compensatory

damages. Therefore, we conclude that the district court did not abuse its

discretion in calculating the remittitur.

                                            E

      Finally, we uphold the district court’s award of attorneys’ fees to the

Delaunays’ counsel. Pursuant to 42 U.S.C. § 1988, in an action to enforce a

provision of 42 U.S.C. §§ 1981, 1982, and 1985, “the court, in its discretion, may

allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42

U.S.C. § 1988(b). “[W]e give great weight to that court’s assessment of a proper

fee.” Zuchel v. City and County of Denver, 997 F.2d 730, 743 (10th Cir. 1993)

(quotation omitted).

      In granting attorneys’ fees, the district court stated that “[u]pon careful

consideration and review of Plaintiffs’ Amended Affidavit regarding Plaintiffs’

attorney’s fees, the Court finds that the affidavit has established a reasonable

number of hours spent on this litigation, and a reasonable rate of $100.00 per

hour.” Delaunay v. Collins, No. 01-CV-1039-B, slip op. at 8 (D. Wyo. Aug 13,

2002). On appeal, the Collins simply argue that the Delaunays must do more than

produce their own attorney’s affidavit to establish the reasonableness of the

attorney’s fee; the Collins do not, however, contest the proposed rate or



                                            17
calculation. We owe substantial deference to the district court in reviewing its

computation of attorneys’ fees, and nothing in the briefs on appeal supports a

conclusion that the district court abused its discretion.

                                          III

      The judgment of the district court is AFFIRMED and this case is

DISMISSED.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                          18
