649 F.2d 1286 (9th Cir. 1981), 78-1115, United States v. Truckee-Carson Irrigation Dist., State of Nev.

Docket Nº:78-1115, 78-1493.
Citation:649 F.2d 1286
Party Name:UNITED STATES of America, Plaintiff-Appellant, and Pyramid Lake Paiute Tribe of Indians, Plaintiff-Intervenor-Appellant, v. TRUCKEE-CARSON IRRIGATION DISTRICT, STATE OF NEVADA, Sierra Pacific Power Company, City of Reno, City of Sparks, County of Washoe, and Washoe County Treasurer, Trustee, Albert A. Alcorn, and Approximately 17,000 Other Individu
Case Date:June 15, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1286

649 F.2d 1286 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellant,

and

Pyramid Lake Paiute Tribe of Indians, Plaintiff-Intervenor-Appellant,

v.

TRUCKEE-CARSON IRRIGATION DISTRICT, STATE OF NEVADA, Sierra

Pacific Power Company, City of Reno, City of Sparks, County

of Washoe, and Washoe County Treasurer, Trustee, Albert A.

Alcorn, and Approximately 17,000 Other Individually Named

Persons, Firms, Partnerships, and Corporations, Defendants-Appellees.

Nos. 78-1115, 78-1493.

United States Court of Appeals, Ninth Circuit

June 15, 1981

Page 1287

[Copyrighted Material Omitted]

Page 1288

[Copyrighted Material Omitted]

Argued and Submitted April 15, 1980.

As Modified July 10, 1981.

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Robert S. Pelcyger, Boulder, Colo., argued for Paiute Tribe; Joseph J. Brecher, Oakland, Ca., Phillip Shea, Mark, Shen & Wilks, Phoenix, Ariz., Arthur Lazarus, J., Washington, D.C., amicus curiae. Robert D. Stitser, Reno, Nev., on brief.

Peter Steenland, Jr., Atty., Dept. of Justice, Washington, D. C., for the U. S.

John W. Hoffman, Reno, Nev., argued for the State of Nev.; Gordon H. De Paoli, Reno, Nev., argued for Sierra Pacific; Frederick G. Girard, Sacramento, Cal., argued for Truckee-Carson Irrigation Dist.; M. Bryon Lewis and Fredrick J., Martone, Phoenix, Ariz., Jarold M. Young, Edward Reed, Thomas J. Hall, Leslie B. Gray, Paul W. Freitag, Sparks, Nev., Nada Novakovich, Jack I. McAuliffe, Maurice J. Sullivan, Robert L. Van Wagoner and Richard W. Blakey, Reno, Nev., on brief.

On Appeal from the United States District Court for the District of Nevada.

Before TUTTLE, [**] SKOPIL, and SCHROEDER, Circuit Judges.

SKOPIL, Circuit Judge:

This action is brought by the United States and the Pyramid Lake Paiute Tribe to quiet title to a water right to sustain the Pyramid Lake fishery. The question raised in this appeal is whether an equitable water adjudication filed by the government in 1913 and finalized in 1944 precludes this cause of action.

In 1913 the United States filed in the U.S. District Court in Nevada an equitable action, United States v. Orr Water Ditch Co., et al., Equity No. 3, naming as defendants virtually all water users on the Truckee River in Nevada. The government sought a decree quieting title to the water rights of all users of Truckee River water. As plaintiff, the government purported to represent two interests: the Newlands Reclamation Project, which required an appropriation of water for irrigation purposes; and the Pyramid Lake Indian Reservation, which was alleged to have a federally reserved water right. The proceedings terminated in 1944 with the filing of a final decree. The Reclamation Project's water right has enabled it to divert most of the flow of the Truckee River before it reaches Pyramid Lake. The Reservation's water rights were limited to a small quantity of irrigation water. The government did not assert a claim for water to sustain the Pyramid Lake fishery.

In 1973 the United States instituted this action on behalf of the Pyramid Lake Paiute Tribe. The complaint sought a decree quieting title to a reserved water right to fulfill the purposes of the Pyramid Lake Reservation, including the maintenance of the level of Pyramid Lake and the lower reaches of the Truckee River for fishery purposes. In 1974 the Tribe intervened as a party plaintiff, asserting the same right.

After an extensive trial, the district court held that the 1944 final decree in the Orr Ditch case precluded the cause of action asserted here. The district court dismissed the government's claim for a reserved water right for the Reservation for fishery purposes. The district court dismissed the Tribe's complaint in intervention in its entirety.

We affirm that portion of the district court's order giving preclusive effect to the Orr Ditch decree as to most of the defendants. We reverse that portion of the order dismissing the complaint as to the Truckee-Carson Irrigation District.

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FACTS AND PROCEDURAL HISTORY

  1. The Pyramid Lake Reservation

    In 1844 John C. Fremont came across Pyramid Lake and the Indians inhabiting its shores. The Lake was "set like a gem in the mountains" and "broke upon (their) eyes like an ocean". It was about 50 miles long and 12 miles wide, considerably larger than its sister, Lake Tahoe. The Indians brought in fish to trade with the whites. The fish

    "were of extraordinary size about as large as the Columbia River Salmon generally from two to four feet in length they doubtless formed the subsistence of these people, who hold the fishery in exclusive possession "

    The Expeditions of John Charles Fremont 609 (1970).

    In 1859 the Secretary of the Interior directed that a 322,000 acre reservation be set aside, consisting of Pyramid Lake ("the Lake"), the lands surrounding it, and the lower reaches of the Truckee River, which feeds the Lake. In 1874 President Grant signed an executive order confirming the reservation. As the district court found, one of the purposes of establishing the reservation was to enable the Tribe to take advantage of the Pyramid Lake fishery, then consisting of a native species of cut-throat trout, and the cui-ui, which exist nowhere else. Under the supervision of the Department of Interior's Indian Service, the Indians began irrigating reservation land. By 1890, about 1,000 acres were irrigated. This had increased to 1,200 acres in 1913.

  2. The Reclamation Project

    In 1902 Congress passed the Reclamation Act, permitting the Secretary to withdraw from entry arid public lands and to initiate irrigation projects to reclaim them. Fifteen days after the Act was passed, the Secretary withdrew land for what became known as the Newlands Reclamation Project ("the Project") in western Nevada. The Project contemplated the irrigation of about 200,000 acres. It was designed to draw water from two rivers, the Carson and the Truckee, which originate in the Sierra Nevada Mountains. In its natural state, the Carson River, after reaching the Nevada desert, is lost in a vast sink. The Truckee runs from the Sierra Nevadas to Lake Tahoe, spills into eastern California, then into Nevada, and ends in Pyramid Lake. The Project would divert water from the Truckee River into the Lahontan Reservoir on the Carson River, which lies outside the Truckee River watershed. There the water would be stored for Project use. Many miles of irrigation works would transport the water to reclamation sites.

    After land was withdrawn for the Project, the government posted notices claiming the right to all unappropriated water in the Truckee, and making a specific claim to the use of 1,500 cubic feet of water per second. Construction then began on Derby Dam, and on a large canal to divert water from the Truckee into the Lahontan Reservoir.

    In 1904 Congress authorized the Secretary to include within the Project irrigable land located on the Pyramid Lake Reservation ("the Reservation"). A portion of that land was to be allotted to the Indians in 5-acre allotments. About 20,000 reservation acres were thought to be irrigable. Because there were relatively few Indians on the reservation, a large land surplus was anticipated. These surplus irrigable lands were to be sold to settlers, the proceeds to be used for the Indians' benefit.

  3. The Orr Ditch Proceeding

    Prior to the Project's initiation, a number of private landowners, land and water companies, and power generating companies had established rights in the Truckee. There were about 40,000 irrigated acres in the Reno Valley alone, owned by about 100 separate parties. Much of the water being diverted in the Reno Valley was being wastefully used, and there was "no practical way for the government to confine this very extensive up-river use within proper bounds." Further, the Pyramid Lake Reservation was believed to have a reserved water right with a very early priority date under the Winters doctrine. Winters v.

    Page 1291

    United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), aff'g, 143 F. 740 (9th Cir. 1906). Only after water rights were adjudicated could the government know how much water it could divert. In times of scarcity the government could enforce restrictions on other users.

    Nevada law offered a cheap and expeditious method for adjudicating water rights, under the auspices of the State Engineer. However, because the government expected to assert "difficult and intricate legal" theories, it was thought better to bring an equitable quiet title action in federal court. On August 21, 1912, the Attorney General authorized a suit to be initiated. The complaint in United States v. Orr Water Ditch Co., et al. was filed on March 3, 1913. The complaint asserted a claim to 10,000 cubic feet of water per second for the Project, and 500 cubic feet per second for the Reservation. The complaint sought to name as defendants all water users on the Truckee River in Nevada. It prayed for a decree quieting title to the rights of all parties.

    With respect to the claim for the Reservation, the complaint was drafted broadly to permit the government to assert "the fullest sort of reserved rights for this reservation." John F. Truesdell, the Special Assistant U.S. Attorney who drafted the complaint, recognized that the Reservation rights were uncertain. At the very least, the Reservation was entitled to an appropriation right based on the Indians' historic use, even assuming the Winters reserved rights doctrine did not apply to executive order reservations. If a Winters right was available, its extent was uncertain. The reservation might be entitled to sufficient water for all irrigable Reservation acreage. Alternatively,

    "(i)t might be held that the reservation of waters was limited to the fullest amount of water that could be used by the Indians for which the reservation was made and their reasonable increase, when living on allotments such as it has been the...

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