Pyramid Lake Paiute Tribe of Indians v. Nevada

• Decision Date: 30 July 2013
• Docket Number: 11–16482.,Nos. 11–16470,11–16475,s. 11–16470
• Parties: PYRAMID LAKE PAIUTE TRIBE OF INDIANS; United States of America, Plaintiffs–Appellees, v. State of NEVADA, DEPARTMENT OF WILDLIFE; Nevada Waterfowl Association, Respondents, and Nevada State Engineer, Defendant–Appellant. Pyramid Lake Paiute Tribe of Indians; United States of America, Plaintiffs–Appellees, v. Nevada Waterfowl Association, Respondent, Nevada State Engineer, Defendant, and State of Nevada, Department of Wildlife, Respondent–Appellant. Pyramid Lake Paiute Tribe of Indians; United States of America, Plaintiffs–Appellees, v. State of Nevada, Department of Wildlife, Respondent, Nevada State Engineer, Defendant, Nevada Waterfowl Association, Respondent–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

724 F.3d 1181

PYRAMID LAKE PAIUTE TRIBE OF INDIANS; United States of America, Plaintiffs–Appellees,

v.State of NEVADA, DEPARTMENT OF WILDLIFE; Nevada Waterfowl Association, Respondents,andNevada State Engineer, Defendant–Appellant.

Pyramid Lake Paiute Tribe of Indians; United States of America, Plaintiffs–Appellees,

v.Nevada Waterfowl Association, Respondent,Nevada State Engineer, Defendant,andState of Nevada, Department of Wildlife, Respondent–Appellant.

Pyramid Lake Paiute Tribe of Indians; United States of America, Plaintiffs–Appellees,

v.State of Nevada, Department of Wildlife, Respondent,Nevada State Engineer, Defendant,Nevada Waterfowl Association, Respondent–Appellant.

Nos. 11–16470, 11–16475, 11–16482.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 18, 2013.

Filed July 30, 2013.

Bryan L. Stockton, Senior Deputy Attorney General, Carson City, NV, for Defendant–Appellant Nevada State Engineer.

Nhu Q. Nguyen, Senior Deputy Attorney General, and Kristen R. Geddes (argued), Deputy Attorney General, Carson City, NV, for Respondent–Appellant Nevada Department of Wildlife.

Paul G. Taggart (argued) and Alexander E. Drew, Taggart & Taggart, Ltd., Carson City, NV; Jim C. Giudici, McDonald, Carano,Wilson, LLP, Reno, NV, for Respondent–Appellant Nevada Waterfowl Association.

Fred Disheroon, Stephen M. MacFarlane, John L. Smeltzer, and Katherine J. Barton (argued), United States Department of Justice, Washington, D.C., for Plaintiff–Appellee United States of America.

Don Springmeyer and Christopher W. Mixson, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP, Las Vegas, NV, for Plaintiff–Appellee Pyramid Lake Paiute Tribe of Indians.

Appeal from the United States District Court for the District of Nevada, Lloyd D. George, Senior District Judge, Presiding. D.C. No. 3:73–cv–00201–LDG.

Before: MARY M. SCHROEDER, SIDNEY R. THOMAS, and BARRY G. SILVERMAN, Circuit Judges.

OPINION

THOMAS, Circuit Judge:

Almost from the time that explorers John C. Frémont and Kit Carson first came upon the Truckee River and Pyramid Lake,¹ disputes have arisen about water rights. In this latest chapter in a hundred-year litigation history, see Nevada v. United States, 463 U.S. 110, 113, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983) (summarizing history), we consider whether diverting water to wetlands in order to sustain wildlife habitat constitutes “irrigation.” We conclude that, within the meaning of the federal court decree governing water rights in the Newlands Reclamation Project, it does not, and we affirm the judgment of the district court.

I

Two rivers flow through the Truckee River Basin, which straddles the California–Nevada border in one of the nation's most arid regions: the Truckee and the Carson. The Carson River “rises on the eastern slope of the High Sierra in Alpine County, California, and flows north and northeast over a course of about 170 miles, finally disappearing into Carson sink.” Id. at 115, 103 S.Ct. 2906. The Truckee River originates in Lake Tahoe, flows north and east into Nevada, and terminates in Pyramid Lake, for which it provides the sole source of water. United States v. Alpine Land & Reservoir Co., 878 F.2d 1217, 1219 (9th Cir.1989) (Alpine II ).

Pyramid Lake is “widely considered the most beautiful desert lake in North America....” Nevada, 463 U.S. at 114, 103 S.Ct. 2906 (internal quotation marks and citation omitted). It lies entirely within the reservation of the Pyramid Lake Paiute Tribe (the “Tribe”) and is the Tribe's “aboriginal home.” Alpine II, 878 F.2d at 1219. Historically, Pyramid Lake supported a world-famous fishery of Lahontan cutthroat trout and cui-ui sucker fish. Nevada, 463 U.S. at 114–15, 119 n. 7, 103 S.Ct. 2906. Over the course of the twentieth century, however, diversion of Truckee River water for agricultural use caused a dramatic reduction in the lake's surface area. Alpine II, 878 F.2d at 1220. As a result, a delta formed at the mouth of the Truckee River, choking off access to spawning grounds used by Pyramid Lake's native fish populations and driving them to the brink of extinction. Id.

The large-scale diversion of water for agricultural use in the Truckee River basin is facilitated by the Newlands Project (the “Project”), one of the first federal reclamation efforts commenced under the authority of the Reclamation Act of 1902, ch. 1093, 32 Stat. 388, codified at43 U.S.C. §§ 371–600e. The Reclamation Act gave the federal government “a prominent role in the development of the West,” by authorizing the Secretary of the Interior “to withdraw from public entry lands in specified western States, reclaim the lands through irrigation projects, and then to restore the lands to entry pursuant to the homestead laws and certain conditions imposed by the Act itself.” Nevada, 463 U.S. at 115, 103 S.Ct. 2906. Pursuant to this authority, the Secretary withdrew from the public domain approximately 232,800 acres of land in western Nevada to establish the Newlands Project. United States v. Alpine Land & Reservoir Co., 291 F.3d 1062, 1066 (9th Cir.2002) (Alpine V ). The Project “was designed to irrigate a substantial amount of this land with water from the Truckee and Carson Rivers, thereby turning wasteland into farmland.” Alpine II, 878 F.2d at 1220 (footnote omitted).

Lands served by the Project are divided into the “Truckee Division” and the “Carson Division.” United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 208 (9th Cir.1989) (Alpine III ). At the Derby Diversion Dam east of Sparks, Nevada, part of the Truckee River's flow is diverted from its natural course to Pyramid Lake. Id. A portion of that diverted water supplies irrigators in the Truckee Division; the remainder is impounded in the Lahontan Reservoir and released into the Carson River to supply irrigators in the Carson Division. Id. “Because diversions from the Carson River do not directly affect Pyramid Lake, the Tribe has sought and obtained judicial rulings that Carson River flows should be utilized whenever possible, before Truckee River flows, to supply the Project with its necessary water.” Id. at 210 n. 2 (citing Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1973)). Thus, we have acknowledged that decreasing water demand in the Carson Division correspondingly decreases the quantity of Truckee River water used there, which in turn increases flows to Pyramid Lake. Id.

Two federal court decrees—products of suits by the United States to quiet title to Truckee and Carson River water—govern water rights in the Newlands Project. The Orr Ditch Decree, In Equity Dkt. No. A3, slip op. (D.Nev. Sept. 8, 1944), allocates water rights on the Truckee River,² while the Alpine Decree, Civil No. D–183, slip op. (D.Nev. Oct. 28, 1980), governs the Carson River water rights at issue in this appeal.³ The Alpine Decree establishes “water duties” for different categories of irrigable lands within the Project, which articulate the maximum quantity of Project water that a landowner may apply to a particular parcel. The water duty for the Project bottom lands at issue in this appeal is 3.5 acre-feet per acre (“afa”), while the duty for higher-elevation “bench lands” is 4.5 afa. United States v. Alpine Land & Reservoir Co., 503 F.Supp. 877, 888 (D.Nev.1980). These figures are based on the quantity of water needed to grow alfalfa, the dominant crop in the Newlands Project. Id. Because some water is inevitably lost to evaporation or during transport, the water duties are set somewhat higher than the quantity of water actually taken up by the alfalfa plants. Specifically, the 3.5 afa water duty at issue in this case includes a “consumptive use” portion of 2.99 afa—which accounts for the quantity of water actually consumed by crop growth—plus a “non-consumptive use” portion of 0.51 afa. Id.

The Alpine Decree also establishes rules for transferring decreed water rights to new locations and uses within the Project. Alpine V, 291 F.3d at 1066–67. Of significance to this appeal, Administrative Provision VII of the Decree states that a party may only transfer the consumptive use portion of its water right to a use other than irrigation.⁴See Alpine Land & Reservoir Co., 503 F.Supp. at 893. Thus, a landowner in the Project's bottom lands who applies to change the manner of use for an irrigation water right can only apply 2.99 afa to the new use; the 0.51 afa non-consumptive use portion must stay in the river. This limitation is designed to protect the efficiency benefits of the “return-flow” method of irrigation practiced in the Newlands Project. Id. Under this method, water is diverted into centralized ditches or canals, applied to the land of the most senior appropriator,⁵ and then allowed to run or seep onto adjacent parcels or into another diversion canal. Id. at 891–92. The Alpine Decree court found this method more efficient than irrigation by direct diversions to each landowner via individual irrigation ditches. Id. at 892. It also found that allowing holders of irrigation water rights to change the manner of use to a non-irrigation purpose would undermine the efficacy of the return-flow method by transferring the 0.51 afa non-consumptive use portion of those rights—which previously reached downstream users as return flows—to a consumptive use. Id. at 893. To address this issue, Administrative Provision VII's prohibition on transferring the non-consumptive use portion of irrigation rights to other uses ensures that “[w]ater that has been allowed in the duties for purposes of irrigation coverage could not then be changed to a consumptive use and disappear from the return flows to other water right lands or the river.” Id.

Under the Alpine Decree, the Nevada State Engineer adjudicates applications to change the manner of use, place of use, or place of diversion for decreed water rights according to Nevada law. Id. However, the U.S. District Court for the District of Nevada, which issued the Alpine...