United States v. Bd. of Dirs. of the Truckee-Carson Irrigation Dist.
| Decision Date | 22 July 2013 |
| Docket Number | 12–15476,Nos. 12–15474,12–15599.,12–15595,12–15594,s. 12–15474 |
| Citation | 723 F.3d 1029 |
| Parties | UNITED STATES of America, Plaintiff–Appellant, and Pyramid Lake Paiute Tribe of Indians, Intervenor–Plaintiff, v. BOARD OF DIRECTORS OF the TRUCKEE–CARSON IRRIGATION DISTRICT, individually, and as Representatives of the Class of all Water Users in the Newlands Reclamation Project; Truckee-Carson Irrigation District, Defendants–Appellees, and State of Nevada, Department of Conservation and Natural Resources, Division of Wildlife and Division of State Lands; Churchill County; Dodge Brothers and Dodge Jr. Family Trust; David P. Harrigan; George and Shelly Rae Rakushin; William D. and Gwendolyn Washburn; Marvin Weishaupt; Howard D. Wolf Family Trust; Ray Conlan; Corkill Bros., Inc.; Calvin R. Moffitt and Candace J. Moffitt; Bell Family Trust; Larry L. Fritz Family Trust; David L. Matley and Christine L. Matley Family Trust and David Matley; Harold G. and Rhonda Johnson and Johnson Family Trust; A & A Dairy; Joyce Lohr; Peraldo Brothers; Stillwater Farms, Inc.; Charles P. Frey, Jr. and Debra S. Frey; Norman W. Frey; Fallon–Paiute Shoshone Tribe, Intervenor–Defendants. United States of America, Plaintiff, and Pyramid Lake Paiute Tribe of Indians, Intervenor–Plaintiff–Appellant, v. Board of Directors of the Truckee–Carson Irrigation District, individually, and as Representatives of the Class of all Water Users in the Newlands Reclamation Project; Truckee-Carson Irrigation District, Defendants–Appellees, and State of Nevada, Department of Conservation and Natural Resources, Division of Wildlife and Division of State Lands; Churchill County; Dodge Brothers and Dodge Jr. Family Trust; David P. Harrigan; George and Shelly Rae Rakushin; William D. and Gwendolyn Washburn; Marvin Weishaupt; Howard D. Wolf Family Trust; Ray Conlan; Corkill Bros., Inc.; Calvin R. Moffitt and Candace J. Moffitt; Bell Family Trust; Larry L. Fritz Family Trust; David L. Matley and Christine L. Matley Family Trust and David Matley; Harold G. and Rhonda Johnson and Johnson Family Trust; A & A Dairy; Joyce Lohr; Peraldo Brothers; Stillwater Farms, Inc.; Charles P. Frey, Jr. and Debra S. Frey; Norman W. Frey; Fallon–Paiute Shoshone Tribe, Intervenor–Defendants. United States of America, Plaintiff–Appellee, Pyramid Lake Paiute Tribe of Indians, Intervenor–Plaintiff–Appellee, v. Board of Directors of the Truckee–Carson Irrigation District, individually, and as Representatives of the Class of all Water Users in the Newlands Reclamation Project; Truckee-Carson Irrigation District, Defendants, State of Nevada, Department of Conservation and Natural Resources, Division of Wildlife and Division of State Lands; Churchill County; Dodge Brothers and Dodge Jr. Family Trust; David P. Harrigan; George and Shelly Rae Rakushin; William D. and Gwendolyn Washburn; Marvin Weishaupt; Howard D. Wolf Family Trust, Intervenor–Defendants, Stillwater Farms, Inc.; Charles P. Frey, Jr. and Debra S. Frey; Norman W. Frey; Fallon–Paiute Shoshone Tribe, Intervenor–Defendants, and Ray Conlan; Corkill Bros., Inc.; Calvin R. Moffitt and Candace J. Moffitt; Bell Family Trust; Larry L. Fritz Family Trust; David L. Matley and Christine L. Matley Family Trust and David Matley; Harold G. and Rhonda Johnson and Johnson Family Trust; A & A Dairy; Joyce Lohr; Peraldo Brothers, Intervenor–Defendants–Appellants. United States of America, Plaintiff–Appellee, Pyramid Lake Paiute Tribe of Indians, Intervenor–Plaintiff–Appellee, v. Board of Directors of the Truckee–Carson Irrigation District, individually, and as Representatives of the Class of all Water Users in the Newlands Reclamation Project; Truckee-Carson Irrigation District, Defendants, State of Nevada, Department of Conservation and Natural Resources, Division of Wildlife and Division of State Lands; Dodge Brothers and Dodge Jr. Family Trust; David P. Harrigan; George and Shelly Rae Rakushin; William D. and Gwendolyn Washburn; Marvin Weishaupt; Howard D. Wolf Family Trust; City of Fallon; Ray Conlan; Corkill Bros., Inc.; Calvin R. Moffitt and Candace J. Moffitt; Bell Family Trust; Larry L. Fritz Family Trust; David L. Matley and Christine L. Matley Family Trust and David Matley; Harold G. and Rhonda Johnson and Johnson Family Trust; A & A Dairy; Joyce Lohr; Peraldo Brothers; Stillwater Farms, Inc.; Charles P. Frey, Jr. and Debra S. Frey; Norman W. Frey; Fallon–Paiute Shoshone Tribe, Intervenor–Defendants, and Churchill County, Intervenor–Defendant–Appellant. United States of America, Plaintiff–Appellee, Pyramid Lake Paiute Tribe of Indians, Intervenor–Plaintiff–Appellee, v. Board of Directors of the Truckee–Carson Irrigation District, individually, and as Representatives of the Class of all Water Users in the Newlands Reclamation Project; Truckee-Carson Irrigation District, Defendants, Churchill County; Dodge Brothers and Dodge Jr. Family Trust; David P. Harrigan; George and Shelly Rae Rakushin; William D. and Gwendolyn Washburn; Marvin Weishaupt; Howard D. Wolf Family Trust; Ray Conlan; Corkill Bros., Inc.; Calvin R. Moffitt and Candace J. Moffitt; Bell Family Trust; Larry L. Fritz Family Trust; David L. Matley and Christine L. Matley Family Trust and David Matley; Harold G. and Rhonda Johnson and Johnson Family Trust; A & A Dairy; Joyce Lohr; Peraldo Brothers; Stillwater Farms, Inc.; Charles P. Frey, Jr. and Debra S. Frey; Norman W. Frey; Fallon–Paiute Shoshone Tribe, Intervenor–Defendants, and State of Nevada, Department of Conservation and Natural Resources, Division of Wildlife and Division of State Lands, Intervenor–Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Ignacia S. Moreno, Assistant Attorney General, Fred Disheroon, David C. Shilton, Stephen M. MacFarlane, and Katherine J. Barton (argued), United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for Plaintiff–Appellant/Appellee United States of America.
Don Springmeyer (argued) and Christopher W. Mixson, Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, Las Vegas, NV, for Intervenor–Plaintiff–Appellant/Appellee Pyramid Lake Paiute Tribe of Indians.
Michael J. Van Zandt and Neil R. Bardack (argued), Hanson Bridgett LLP, San Francisco, CA, for Defendants–Appellees/Appellants Board of Directors of the Truckee–Carson Irrigation District and Truckee–Carson Irrigation District.
Laura A. Schroeder and Therese A. Ure (argued), Schroeder Law Offices, P.C., Reno, NV, for Intervenor Defendant: Cross–Appellant/Appellee Churchill County, Nevada.
Catherine Cortez Masto, Attorney General; Nhu Q. Nguyen, Senior Deputy Attorney General, Carson City, NV, for Intervenor–Defendant–Appellant State of Nevada, Department of Conservation and
Natural Resources, Division of Wildlife and Division of State Land.
Michael F. Mackedon, Mackedon, McCormick & King, Fallon, NV, for Intervenor–Defendants–Appellees City of Fallon, et al.
Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, Senior District Judge, Presiding. D.C. No. 3:95–cv–00757–HDM.
Before: MARY M. SCHROEDER, MARSHA S. BERZON, and JAY S. BYBEE, Circuit Judges.
We deal in this appeal with what essentially amounts to a footnote to the long-running litigation over how much water from the Truckee and Carson Rivers should be diverted to irrigation and how much should flow into Pyramid Lake for the benefit of the Pyramid Lake Paiute Indian Tribe (“the Tribe”). See Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983); United States v. Bell, 602 F.3d 1074 (9th Cir.2010); Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364 (9th Cir.1989); Truckee–Carson Irrigation Dist. v. Sec'y of Dep't of Interior, 742 F.2d 527 (9th Cir.1984) (“TCID v. Secretary ”); United States v. Alpine Land & Reservoir Co., 697 F.2d 851 (9th Cir.1983); Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1973) (“Tribe v. Morton ”). The federal government and the Tribe now ask us to reconsider one aspect of our most recent opinion. See Bell, 602 F.3d at 1085, 1087.
Bell concerned water that the Truckee–Carson Irrigation District (“TCID”) diverted for irrigation between 1973 and 1988 and that the government claimed was in excess of the amount allowed by applicable regulation. We held, among other things, that in calculating the amount of excess diversions, the district court had failed appropriately to account for the margin of error with respect to the gauges that measured the flow of the diversions. Id. at 1085. The district court calculated the amount of water diverted by choosing the low end of this margin of error and thus assigned all uncertainty in the gauge flow calculations in favor of the TCID and against the government and Tribe. Id. We remanded for recalculation because there was no evidentiary basis for that choice. It is this so-called “gauge error” ruling that we now must consider in this appeal from the district court's judgment on remand.
A brief explanation is in order. Earlier in the Bell opinion, in addressing the primary issues in that appeal, we affirmed the district court's order of recoupment for excess diversions by the TCID for the years 1974, 1975, 1978, and 1979. Id. The district court had rejected claims of excess diversions in the other years between 1973 and 1988. In our concluding paragraph, we remanded for recalculation of the effect of gauge error in the four specific years in which the district court had found excess diversions. Id. at 1087. On remand, the government asked the court to recalculate gauge error for those and additional years, but the district court limited its recalculation to the four years specified in the conclusion of the Bell opinion.
It now appears that our understanding of the scope of the gauge error claim was mistaken and that the government was claiming the gauge error calculation had affected the flow measurement in other years as...
To continue reading
Request your trial
-
United States v. Mageno, 12–10474.
... ... Armster v. U.S. Dist. Court for Cent. Dist. of Cal., 806 F.2d 1347, 1356 (9th Cir.1986) ... ...
- United States v. Bd. of Dirs. of the Truckee-Carson Irrigation Dist.
- United States v. Clement
- United States v. Bd. of Dirs. of the Truckee-Carson Irrigation Dist., 3:95-CV-00757-HDM
-
Case summaries.
...DOFs actions beyond the scope of both the APA and the FTCA. United States v. Board of Directors of Truckee-Carson Irrigation District, 723 F.3d 1029 (9th Cir. This action, between the United States (306) and the Truckee-Carson Irrigation District (TCID), (307) represents the latest chapter ......