U.S. v. Alpine Land and Reservoir Co.
| Decision Date | 03 September 1998 |
| Docket Number | No. CIV. D-184-HDM.,CIV. D-184-HDM. |
| Citation | 27 F.Supp.2d 1230 |
| Parties | The UNITED STATES of America, Plaintiff, v. ALPINE LAND AND RESERVOIR CO., et al., Defendants. |
| Court | Nevada Supreme Court |
Kathryn Landreth, United States Attorney, Shirley Smith, Asst. U.S. Attorney, Reno, NV, Lois J. Schiffer, Asst. Attorney General, Fred R. Disheroon, Special Litigation Counsel, Environment & Natural Resources Div., Washington, D.C., Stephen M. Macfarlane, Trial Attorney, Environment & Natural Resources Division, Sacramento, CA, for U.S.A R. Michael Turnipseed, P.E., Nevada State Engineer, Division of Water Resources, Carson City, for State of Nevada.
Frankie Sue Del Papa, Attorney General, David C. Creekman & Marta Adams, Deputy Attorney General, Carson City, for Nevada State Engineer.
Garry D. Stone, United States Water Master, Reno.Michael J. Van Zandt, Craig A. Pridgen, McQuaid, Metzler, McCormick & Van Zandt, San Francisco, CA, for Water Transfer Applicants.
Robert S. Pelcyger, M. Evelyn Woods, Fredericks, Pelcyger, Hester & White, LLC, Louisville, CO, Robert D. Stitser, Reno, NV, for Pyramid Lake Paiute Tribe of Indians.
Laura. Schroeder, Schroeder Law Offices, Portland, OR, for Transfer Applicant # 48865 Rambling River Ranches Inc.
Dale E. Ferguson, Gordon DePaoli, Woodburn and Wedge, Reno, NV, for Matley-Venturacci Group.
Michael F. Mackedon, Steven D. King, Mackedon & McCormick, A Professional Corp., Fallon, NV, for Roger Mills, Larry Fritz, and Gaylord Blue Equity Trust.
Ross E. de Lipkau, Hill, Cassas, deLipkau & Erwin, Reno, NV, for Aquaduct I. & Town of Fernley.
Roger A. Bergmann, Reno, NV, for Federal Water Master Gary Stone.
Steve McFarlane, U.S. Dept. of Justice, Environment and Natural Resources Div., Sacramento, CA, for Truckeecarson Irrigation Dist. & Class Defendants.
Peter G. Morros, State Engineer, Division of Water Resources, Dept. of Conservation and Natural Resources, Carson City, NV, Lyman McConnell, Newlands Project, Fallon, NV, for Truckee Carson Irrigation District.
Sid Ottem, Office of the Solicitor, Pacific-Southwest Region, U.S. Dept. of the Interior, Sacramento, CA, George N. Benesch, Deputy Attorney General, Division of Water Resources, Carson City, NV.
On December 22, 1997, the Nevada State Engineer issued its Ruling On Remand # 4591. The United States and the Pyramid Lake Paiute Tribe ("Tribe") appeal that ruling.
The history of this litigation is detailed in United States v. Alpine Land & Reservoir Co., 503 F.Supp. 877 (D.Nev.1980), aff'd. as modified, 697 F.2d 851 (9th Cir.1983) ("Alpine I"), United States v. Alpine Land & Reservoir Co., 878 F.2d 1217 (9th Cir.1989)("Alpine II")and United States v. Alpine Land & Reservoir Co., 983 F.2d 1487 (9th Cir.1992) ("Alpine III"). In Alpine III, the Ninth Circuit remanded this action to the district court to make the following determinations, on a parcel-by-parcel basis, with respect to each transfer application at issue: (1) whether the water rights appurtenant to the transferor properties at issue have been perfected; (2) whether the holders of the water rights sought to be transferred abandoned the water rights appurtenant to the transferor properties; and (3) whether the specific water rights sought to be transferred have been forfeited, if the specific water rights vested or were initiated after March 22, 1913. The Ninth Circuit left it to this court's discretion whether to conduct the factual determinations itself or to appoint the State Engineer or a federal Water Master.
On April 13, 1995, this court issued the following order:
This action is remanded forthwith to the Nevada State Engineer to consider all applications and make determinations on the issues of perfection, abandonment and forfeiture. Should the State Engineer decide additional evidence is required, he shall afford the parties the opportunity to present such evidence. The State Engineer shall then certify the record to this court to decide whether or not the findings of the State Engineer are based on the relevant facts and applicable law.
Thereafter, the Engineer issued a briefing schedule and a timetable for the exchange of evidentiary materials between the parties. On August 30, 1996, the Engineer issued Interim Ruling No. 4411, in which the Engineer concluded: 1) the Tribe was not precluded by the doctrine of res judicata from being heard on the issues of lack of perfection, abandonment and forfeiture; 2) the Engineer had the authority to consider the issues of lack of perfection, abandonment and forfeiture; 3) the Engineer would act on the applications before him as ordered by the court; 4) Nevada law does not shift the burden of proving lack of abandonment to the applicants upon the protestant's showing of an extended period of nonuse; and 5) NRS § 533.324, which became effective subsequent to the decision in Alpine III, precluded the need for perfection of the water rights that are the subject of the transfer applications prior to the transfer of said rights.
On September 23, 1996, the Tribe filed a motion for partial reconsideration regarding the Engineer's ruling on perfection. In Ruling # 4591, the Engineer affirmed his conclusion that the court in Alpine II misinterpreted Nevada law when it held that all water rights in Nevada must be perfected prior to transfer. However, the Engineer further concluded that all unperfected water rights are not available to be transferred. The Engineer determined that if the Tribe proves a water right was not perfected prior to the filing of one of the transfer applications, the issue becomes whether that particular water right is still within the diligence phase of development. If the answer is yes, the unperfected water right can be moved; however, if the water right is not within the diligence phase, the unperfected water right is not available for the transfer, as it does not comport with the common law doctrines of due diligence and relation back.
Evidentiary hearings were held in 1996 and 1997. On December 22, 1997, the Engineer issued its Ruling on Remand # 4591, which considered fourteen (14) applications, consisting of fifty-six (56) transferor parcels.1 In addition to the Engineer's factual findings on a parcel-by-parcel basis, the ruling consisted of twelve (12) general findings of fact and four (4) general conclusions of law. Where applicable, the Engineer adopted and incorporated these general findings and conclusions when considering the issues of perfection, abandonment and forfeiture on a parcel-by-parcel basis.
Specifically, the Engineer determined that for thirty-eight (38) parcels, no water had been applied to beneficial use for periods ranging from five (5) years to thirty-six (36) years prior to the filing of the application to transfer the water right. For eight (8) other parcels, the Engineer found that the Tribe had proved that some portion of the land had not been irrigated for a substantial number of years, but that the Tribe had failed to present evidence of the exact location of the unirrigated land. On the remaining parcels, the Engineer found the Tribe had failed to prove nonuse of the water by clear and convincing evidence.
The Engineer also made findings regarding the land use of the transferor parcels. For a majority of the thirty-eight (38) existing places of use where the Engineer found no water had been applied to beneficial use and the eight (8) parcels where the Engineer found partial nonuse, the Engineer determined that the evidence before him clearly showed that they were comprised of paved highways and roads, natural vegetation, bare land, residential areas and canals and drains.
With respect to the issues of perfection, forfeiture and abandonment, the Engineer found that the water right on one (1) parcel had not been perfected, the water rights on two (2) parcels could not be transferred, and that no water rights sought to be transferred had been abandoned or forfeited. The three parcels which the Engineer concluded could not be transferred belong to Application 47840 (Mills), parcels 5, 11 and 12. As to parcel 5, the Engineer stated With respect to parcels 11 and 12, the Engineer could not determine what the contract dates were. The Engineer concluded, therefore, that there was insufficient information to determine the Tribe's claims of lack of perfection, forfeiture or abandonment or to allow the transfer of the water rights.
On January 16, 1998, the United States filed its Petition for Review and Notice of Appeal of Ruling # 4591.2 The United States specifically objects to the following general findings of fact and general conclusions of law: (1) General Finding of Fact I; (2) General Finding of Fact IX; (3) General Finding of Fact XII; (4) General Conclusion of Law II; and (5) General Conclusion of Law IV. In addition, the government contends that based on the Engineer's uncontroverted findings regarding the nonuse of water for a substantial period of time, combined with uncontroverted findings of a land use inconsistent with irrigation, more than half of the water rights at issue have been forfeited or abandoned.3
On January 14, 1998, the Tribe filed its Notice of Appeal of Ruling # 4591. The Tribe appeals on the following grounds: (1) the Engineer should not act as a fact-finder on remand4; (2) the Engineer failed to apply the doctrine of beneficial use; (3) the...
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