890 F.3d 1161 (9th Cir. 2018), 15-16478, United States v. Walker River Irrigation District

Docket Nº:15-16478, 15-16479
Citation:890 F.3d 1161
Opinion Judge:TASHIMA, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. WALKER RIVER IRRIGATION DISTRICT; Estate of Herbert Garms, et al.; Circle Bar N Ranch, L.L.C., et al.; E.L.W. Ranches, Inc.; Tri-State Motor Transit Company; Desert Pearl Farms, GP, et al.; Douglas County, Nevada; John A. Mathias, et al.; Break-A-Heart, LLC, et al.; Bently Family Ltd. ...
Attorney:Elizabeth Ann Peterson (argued), David L. Negri, Andrew Guss Guyarino, Katerine J. Barton, David C. Shilton, and William B. Lazarus, Attorneys; Jeffrey H. Wood, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Plaintiff-Counterclaimant-Appellant. Wes W...
Judge Panel:Before: A. Wallace Tashima, Raymond C. Fisher, and Jay S. Bybee, Circuit Judges.
Case Date:May 22, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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890 F.3d 1161 (9th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellant,

and

Walker River Paiute Tribe, Intervenor-Plaintiff,

v.

WALKER RIVER IRRIGATION DISTRICT; Estate of Herbert Garms, et al.; Circle Bar N Ranch, L.L.C., et al.; E.L.W. Ranches, Inc.; Tri-State Motor Transit Company; Desert Pearl Farms, GP, et al.; Douglas County, Nevada; John A. Mathias, et al.; Break-A-Heart, LLC, et al.; Bently Family Ltd. Partnership, et al.; Hawthorne Utilities, et al.; Nevada Bighorns Unlimited; David J. & Pamela A. Peri Family Trust Agreement, et al.; National Fish and Wildlife Foundation; Dwight Craig Donovan; Yerington Ventures, LLC; Darla Clarke Perry, et al.; Annette R. Swainston, et al.; Residual Trust of the Heiman Family Trust, et al.; VGR Limited Partnership; Motley Living Trust Dated 12-23-70; Borda Family LP; Theodore David Haight; Leland D. Hayden, et al.; Marjorie L. Urrea, et al.; Fred Fulstone, Jr.; Nevada State of, et al.; Gregory B. Adams, et al.; Arlene M. Hoferer, et al.; California Department of Fish & Game, et al.; Norman W. and Kelli J. Annett Family Trust, et al.; Antler Peak Gold Inc.; Michael J. Chilton; County of Mono, California, et al.; Smith Valley Fire Protection District, et al.; Kyle A. Ruf; Shane Brandon; Borealis Mining Co.; J & S Roberts Trust Dated 2-26-96; Suellen Fulstone, et al.; Mineral County; Centennial Livestock; U.S. Board of Water Commissioners; Fenili Family Trust, c/o Peter Fenili and Veronica Fenili, Trustees; Six-N-Ranch, Inc., c/o Richard and Cynthia Nuti; Michael Nuti; Nancy Nuti; Ralph E. Nuti; Mary E. Nuti; Lawrence M. Nuti; Leslie Nuti; Mica Farms, LLC, c/o Mike Faretto; John and Lura Weaver Family Trust, c/o Lura Weaver, Trustee; Smith Valley Garage, Inc., c/o Dan Smith and Shawna Smith; Donald Giorgi; Lorie McMahon; Merle McMahon; Lyon County, Defendants-Appellees.

United States of America, Plaintiff,

and

Walker River Paiute Tribe, Intervenor-Plaintiff-Appellant,

v.

Walker River Irrigation District; Estate of Herbert Garms, et al.; Circle Bar N Ranch, L.L.C., et al.; E.L.W. Ranches, Inc.; Tri-state Motor Transit Company; Desert Pearl Farms, GP, et al.; Douglas County, Nevada; John A. Mathias, et al.; Break-A-Heart, LLC, et al.; Bently Family Ltd. Partnership, et al.; Hawthorne Utilities, et al.; Nevada Bighorns Unlimited; David J. & Pamela A. Peri Family Trust Agreement, et al.; National Fish and Wildlife Foundation; Dwight Craig Donovan; Yerington Ventures, LLC; Darla Clarke Perry, et al.; Annette R. Swainston, et al.; Residual Trust of the Heiman Family Trust, et al.; VGR Limited Partnership; Motley Living Trust Dated 12-23-70; Borda Family LP; Theodore David Haight; Leland D. Hayden, et al.; Marjorie L. Urrea, et al.; Fred Fulstone, Jr.; Nevada State of, et al.; Gregory B. Adams, et al.; Arlene M. Hoferer, et al.; California Department of Fish & Game, et al.; Norman W. and Kelli J. Annett Family Trust, et al.; Antler Peak Gold Inc.; Michael J. Chilton; County of Mono, California, et al.; Smith Valley Fire Protection District, et al.; Kyle A. Ruf; Shane Brandon; Borealis Mining Co.; J & S Roberts Trust Dated 2-26-96; Suellen Fulstone, et al.; Mineral County; Centennial Livestock; U.S. Board of Water Commissioners; Fenili Family Trust, c/o Peter Fenili and Veronica Fenili, Trustees; Six-N-Ranch, Inc., c/o Richard and Cynthia Nuti; Michael Nuti; Nancy Nuti; Ralph E. Nuti; Mary E. Nuti; Lawrence M. Nuti; Leslie Nuti; Mica Farms, LLC, c/o Mike Faretto; John and Lura Weaver Family Trust, c/o Lura Weaver, Trustee; Smith Valley Garage, Inc., c/o Dan Smith and Shawna Smith; Donald Giorgi; Lorie McMahon; Merle McMahon; Lyon County, Defendants-Appellees.

Nos. 15-16478, 15-16479

United States Court of Appeals, Ninth Circuit

May 22, 2018

Argued and Submitted August 30, 2017 Pasadena, California

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Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, District Judge, Presiding, D.C. No. CV 73-0127 RCJ, Subproceeding: C-125-B.

SUMMARY[*]

Water Rights

The panel reversed the district court's order dismissing, on res judicata grounds, an action brought by the United States and the Walker River Paiute Tribe against the Walker River Irrigation District and others concerning water rights in the Walker River basin.

This case began in 1924 when the United States filed suit in Nevada federal court to establish water rights in the Walker River Basin on behalf of the Walker River Paiute Tribe. In 1936, the court entered the Water River Decree awarding water rights to the Tribe and various other claimants. In 1940, after remand from the Ninth Circuit, the district court amended the original decree and retained jurisdiction to modify it. In 1991, the Walker River Irrigation District filed a petition invoking the court's continuing jurisdiction over the waters of the Walker River. The petition was in response to a California State Water Resources Control Board decision to issue restrictions on the District's California water licenses. The current appeals arise from the counterclaims in the 1991 action filed by the Tribe in 1992 (and later by the United States) asserting new water rights. In May 2015, without briefing or argument on the issue, the district court sua sponte dismissed all of the Tribe's and the United States' counterclaims on res judicata or jurisdictional grounds.

The panel first held that the district court was correct that it retained jurisdiction to litigate additional rights in the Walker River Basin and to modify the 1936 Decree. On the merits, the panel held that the district court erred in characterizing the counterclaims as part of a new action. The panel concluded that based on the procedural history and the fact that the Tribe and the United States brought their counterclaims under the same caption as the 1924 action, the counterclaims did not constitute a new action. The panel further held that the district court erred by dismissing the claims sua sponte on the basis of res judicata without first giving the parties an opportunity to be heard on the issue. Moreover, the panel held that because the counterclaims were not a new action, traditional claim preclusion and issue preclusion did not apply.

The panel directed that on remand, the case should be randomly reassigned to a different district judge. The panel reluctantly concluded that reassignment was appropriate because it believed (1) that Judge Jones would have substantial difficulty putting out of his mind previously expressed views about the federal government and its attorneys, and (2) that reassignment will preserve the appearance of justice.

Elizabeth Ann Peterson (argued), David L. Negri, Andrew "Guss" Guyarino, Katerine J. Barton, David C. Shilton, and William B. Lazarus, Attorneys; Jeffrey H. Wood, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Plaintiff-Counterclaimant-Appellant.

Wes Williams Jr. (argued) Schurz, Nevada, for Intervenor-Plaintiff-Appellant.

Gordon H. DePaoli (argued) and Dale E. Ferguson, Woodburn & Wedge, Reno, Nevada, for Defendant-Appellee Walker River Irrigation District.

Bryan L. Stockton (argued), Senior Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Carson City, Nevada; for Defendant-Appellee Nevada Department of Wildlife.

Roderick E. Walston (argued) and Steven G. Martin, Best Best & Krieger, Walnut Creek, California; Stephen B. Rye, District Attorney, Lyon County District Attorney’s Office, Yerington, Nevada; Jerry M. Snyder, Reno, Nevada; Stacy Simon, County Counsel, Office of the County Counsel, Mammoth Lakes, California; Therese A. Ure, Schroeder Law Offices P.C., Reno, Nevada; for Defendants-Appellees Lyon County, et al.

Before: A. Wallace Tashima, Raymond C. Fisher, and Jay S. Bybee, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

This case is but one among a group of related actions in a long-running and complex dispute over water rights in the Walker River Basin. This case began in 1924 when the United States filed suit in Nevada federal court to establish water rights in the Walker River Basin on behalf of the Walker River Paiute Tribe ("Tribe"). In 1936, the court entered a decree awarding water rights to the Tribe and various other claimants. In 1940, after remand from the Ninth Circuit, the district court amended the original decree and retained jurisdiction to modify it.1

The issues we confront in these appeals stem from the counterclaims filed by the Tribe in 1992 (and later by the United States) asserting new water rights. The district court ordered the Tribe and the United States to name as counter defendants all water rights claimants in the Walker River Basin and to serve them with summons and the counterclaims. In 2013, after service was substantially complete, Judge Robert Clive Jones2 ordered briefing on Rule 12(b) issues related to jurisdiction and expressly ordered the litigants not to address other issues, such as res judicata, which were to be addressed at a later date. Nonetheless, in May 2015, without briefing or argument on the issue,

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the district court sua sponte dismissed all of the Tribe’s and the United States’ counterclaims on res judicata or jurisdictional grounds. The Tribe and the United States appeal.

We hold that the district court had continuing jurisdiction over the counterclaims and that it erred in dismissing the claims on res judicata or jurisdictional grounds without giving the parties an opportunity to brief the issue. Accordingly, we reverse and remand. On remand, we also order the reassignment of this case to another district judge.

I. Facts and Procedural Background3

A. The...

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