U.S. v. Alpine Land & Reservoir Co.

• Decision Date: 24 January 1983
• Docket Number: No. 81-4084,81-4084
• Parties: UNITED STATES of America, Appellant, v. ALPINE LAND & RESERVOIR CO.; Truckee-Carson Irrigation District; Sierra-Pacific Power Co.; State of Nevada; and Certain Upper Carson River Water Users, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 851

697 F.2d 851

UNITED STATES of America, Appellant, v. ALPINE LAND & RESERVOIR CO.; Truckee-Carson Irrigation District; Sierra-Pacific Power Co.; State of Nevada; and Certain Upper Carson River Water Users, Appellees.

No. 81-4084.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1982.

Decided Jan. 24, 1983.

Harry Swainston, Carson City, Nev., Dirk D. Snel, Washington, D.C., for appellant.

James W. Johnson, Jr., George Folsom, Woodburn, Forman, Wedge, Blakey & Jeppson, Reno, Nev., for appellees.

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

Before KENNEDY, ALARCON and NELSON, Circuit Judges.

KENNEDY, Circuit Judge:

The Carson River runs eastward from the Sierra Nevada range in California, through a part of Toiyabe National Forest, and then to Lahontan Reservoir in central Nevada, where it joins with water from the Truckee River Diversion Canal. See United States v. Alpine Land & Reservoir Co., 431 F.2d 763, 765-66 (9th Cir.1970), cert. denied, 401 U.S. 909, 91 S.Ct. 869, 27 L.Ed.2d 807 (1971). Downstream from Lahontan Reservoir lies the Carson Division of the Newlands Project, whose farmers are mostly members of the Truckee-Carson Irrigation District (TCID), one of appellees here. The Newlands Project on Nevada's Carson River was one of the first constructed under the Reclamation Act of 1902, 32 Stat. 390, codified at 43 U.S.C. Sec. 371 et seq.

This suit was begun by the United States as a quiet title action in 1925, although no final decision was rendered until the decision of the district court in 1980, reported at 503 F.Supp. 877 (D.Nev.1980). This litigation is a "virtually comprehensive adjudication," United States v. Truckee-Carson Irrigation District, 649 F.2d 1286, 1308 (9th Cir.1981), of the rights of all parties to the Carson's waters, and much of the district court's opinion and extensive final order is not contested by any party. On this appeal, the United States does argue that the water duty awarded farms in the Newlands Project was too generous; that the Secretary of the Interior, rather than the Nevada State Engineer, should have primary jurisdiction over change applications; that the district court erred in rejecting the United States' claim of a reserved right of instream flow for Toiyabe National Forest; and that no water duty for fishing and recreation at Lahontan reservation should have been awarded. Amici Paiute Tribe, Environmental Defense Fund, and Sierra Club agree with the United States in whole or in part. Supporting the decision are TCID, the State of Nevada, and Sierra Pacific Power Company. ¹ We uphold the decision of the district court, for the most part, although we vacate the judgment with reference to the water duty awarded for public recreation pending more specific findings. We discuss the issues seriatim.

I. Water Duty for Newlands Project Farmers

The district judge awarded a water duty of 3.5 acre-feet/year (afa) to bottomland farmers, and 4.5 afa to benchland farmers in the Newlands Project. The United States and supporting parties argue that the district court erred in making a de novo determination of beneficial use. The Government argues that the district court instead should have ruled in reliance on contracts executed by the Department of the Interior and some landowners which purport to limit the water duty to a maximum of 3 afa, or alternatively on a 1903 Nevada statute, passed after the priority date of the Newlands Project, which limited beneficial use to 3 afa until it was repealed in 1905. The United States also argues that the findings of the district court on beneficial use were inadequate. We reject these contentions.

Our starting point is section 8 of the Reclamation Act of 1902, 32 Stat. 390, now codified at 43 U.S.C. Sec. 372 (1976), which states:

The right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.

By the terms of the statute, beneficial use is the "basis" and "measure" as well as the "limit" of water rights; it sets the maximum water duty, but, under the statute, it is also the necessary rationale and source of the right. This determination by Congress is explained both by the historical significance of the beneficial use concept in western water law, and by the absence of any other intelligible standard offered by these parties to measure water rights.

The legislative history of the 1902 Reclamation Act makes clear that the "principles underlying and governing water rights" under the Act were to be the existing beneficial use concepts of western water law. 35 Cong.Rec. 6677 (1902) (remarks of Rep. Mondell). Section 8 "clearly recognizes the rule of prior appropriation which prevails in the arid region, and, what is highly important, specifies the character of the water right which is provided for under the provisions of the act." Id. at 6678. Rep. Mondell went on to describe the manner in which a water duty would vest:

The main line canals having been constructed by the Government, the entryman or landowner would proceed to the construction of such laterals as were necessary for the irrigation of his own tract and the preparation of the same to receive the water. The water having been beneficially applied and payments having been made under the provisions of the bill, the water right would become appurtenant to the land irrigated and inalienable therefrom. The water rights provided by the act are of that character which irrigation experience has demonstrated to be the most perfect.

The settlor or landowner who complies with all the conditions of the act secures a perpetual right to the use of a sufficient amount of water to irrigate his land, but this right lapses if he fails to put the water to beneficial use ....

Id. at 6679. While there were provisions of federal law which were intended to displace state law, such as the 160-acre limit at issue in United States v. Tulare Lake Canal Co., 677 F.2d 713 (1982), beneficial use itself was intended to be governed by state law. See Remarks of Rep. Mondell, supra; 35 Cong.Rec. 2222 (1907) (remarks of Sen. Clark); California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978). We do not deny or overlook the differences in water law among the various western states. However, on the point of what is beneficial use the law is "general and without significant dissent." 1 Waters and Water Rights Sec. 19.2 at 85 (R. Clark ed. 1967). Therefore, unless it is shown that a state applies a special rule of law on a relevant point, it is proper to apply general law in defining beneficial use.

We briefly review these general principles here. The major conceptual tool for implementing beneficial use is the water duty, which is the amount of water an appropriator is entitled to use, including a margin for conveyance loss. This definition of "water duty" is often quoted:

It is that measure of water, which, by careful management and use, without wastage, is reasonably required to be applied to any given tract of land for such period of time as may be adequate to produce therefrom a maximum amount of such crops as ordinarily are grown thereon. It is not a hard and fast unit of measurement, but is variable according to conditions.

Farmers Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 584-85, 272 P.2d 629, 634 (1954); see also Basin Electric Power Cooperative v. State Board of Control, 578 P.2d 557, 564 (Wyo.1978); State ex rel. Reynolds v. Mears, 86 N.M. 510, 515-16, 525 P.2d 870, 875-76 (1974); 1 Waters and Water Rights Secs. 19.2-19.5 at 85-93 (1972); 5 id. Sec. 408.2 at 79-80 (R. Clark ed. 1967).

There are two qualifications to what might be termed the general rule that water is beneficially used (in an accepted type of use such as irrigation) when it is usefully employed by the appropriator. First, the use cannot include any element of "waste" which, among other things, precludes unreasonable transmission loss and use of cost-ineffective methods. See, e.g., State ex rel. Erickson v. McLean, 62 N.M. 264, 271, 308 P.2d 983, 987 (1957); Glenn Dale Ranches, Inc. v. Shaub, 94 Idaho 585, 588, 494 P.2d 1029, 1031-32 (1972); 1 Waters and Water Rights Secs. 19.2, 19.5 at 87, 91-92 (R. Clark ed. 1967). Second, and often overlapping, the use cannot be "unreasonable" considering alternative uses of the water. In Vineyard Land & Stock Co. v. Twin Falls Salmon River Land & Water Co., 245 F. 9, 22-25 (9th Cir.1917), although application of additional water over the water duty awarded by the district court would provide some benefit to the appropriator, we upheld the district court's water duty because the gain was so small (compared to the amount of water necessary to bring it forth) that the additional increment of water would not be "economically applied." Id. at 24. See also In re Water Rights of Deschutes River & Its Tributaries 34 Or. 623, 664-68, 286 P. 563, 577-78 (1930) (use of water to carry off debris in aid of power generation not allowed in irrigation season when the same water would otherwise irrigate 1600 acres); Tulare Irrigation Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 567-68, 45 P.2d 972, 1007 (1935) (use of water by farmers to drown gophers not allowed in area with chronic water shortage). See generally Trelease, The Concept of Reasonable Beneficial Use in the Law of Surface Streams, 12 Wyo.L.J. 1, 14-17 (1956).

The United States and supporting amici argue that the district court should have given decisive significance to contracts limiting the water duty to 3 afa which the Secretary of the Interior executed with some but not all landowners. We are also told all of the Newlands Project is limited to a 3 afa water duty by virtue of 1903 Nevada Stats., Chap. IV, Sec. 2:

the quantity of water which may be appropriated or used for irrigation...