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

• Decision Date: 04 October 1989
• Docket Number: TRUCKEE-CARSON,Nos. 88-2539,88-2542,s. 88-2539
• Citation: 887 F.2d 207
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ALPINE LAND AND RESERVOIR CO., Defendant, and Truckee-Carson Irrigation District, Defendant-Appellee. UNITED STATES of America, Plaintiff, v. ALPINE LAND AND RESERVOIR CO., Defendant, andIRRIGATION DISTRICT, Defendant-Appellee, v. PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 207

887 F.2d 207

UNITED STATES of America, Plaintiff-Appellant, v. ALPINE LAND AND RESERVOIR CO., Defendant, and Truckee-Carson Irrigation District, Defendant-Appellee.

UNITED STATES of America, Plaintiff, v. ALPINE LAND AND RESERVOIR CO., Defendant, and TRUCKEE-CARSON IRRIGATION DISTRICT, Defendant-Appellee, v. PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Defendant-Appellant.

Nos. 88-2539, 88-2542.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1989.

Decided Oct. 4, 1989.

Dirk D. Snel, Dept. of Justice, Washington, D.C., for plaintiff-appellant U.S.

Frederick G. Girard, Kronick, Moskovitz, Tiedemann and Girard, Sacramento, Cal., for defendant-appellee Truckee-Carson Irr. Dist.

Robert S. Pelcyger, Fredericks & Pelcyger, Boulder, Colo., for defendant-appellant Pyramid Lake Paiute Tribe of Indians.

Gordon H. DePaoli, Woodburn, Wedge & Jeppson, Reno, Nev., for defendants-intervenors-appellees David L. Matley and Christine L. Matley.

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

Before SCHROEDER and CANBY, Circuit Judges, and LEW, ^* District Judge.

SCHROEDER, Circuit Judge:

Introduction

This appeal is yet another phase of the epic litigation over rights to the waters of the Carson and Truckee Rivers. Here, the United States together with the Pyramid Lake Paiute Tribe of Indians (the Tribe), the downstream user of the Truckee River, is pitted against the Truckee-Carson Irrigation District (TCID), which represents the owners of land within the Newlands Reclamation Project (the Project), the upstream users of the Carson and Truckee Rivers.

The Project has two divisions, the Truckee and the Carson. To supply the irrigators of the Truckee Division with water, some Truckee River water is diverted, through the Derby Diversion Dam and the Truckee Canal, from its natural flow into Pyramid Lake. The diverted Truckee water not used in the Truckee Division is then impounded at the Lahontan Reservoir, and distributed to the Carson Division. The Carson River runs eastward from the Sierra Nevada mountain range in California to the Lahontan Reservoir in Nevada, where it joins with water from the Truckee River Canal to irrigate the Carson Division. Thus, the Truckee River waters irrigate both the Truckee and Carson Divisions, while the Carson River waters irrigate only the Carson Division. The United States controls the Project's irrigation equipment, and TCID manages the Project pursuant to a contract with the United States. Truckee-Carson Irr. Dist. v. Secretary of Dept. of Interior, 742 F.2d 527, 530 (9th Cir.1984), cert. denied, 472 U.S. 1007, 105 S.Ct. 2701, 86 L.Ed.2d 717 (1985).

Because any water diverted from the Truckee cannot be recovered for use at the Tribe's fishery at Pyramid Lake, the Tribe is vitally interested in limiting the diversion of Truckee River water. On the other hand, the landowners are interested in maximizing the amount of water diverted so that their farms can be sufficiently irrigated.

The question here is whether the United States government has the authority to set the basic guidelines for the classification of Project lands as either "bench" or "bottom." A great deal rides on these classifications for under the controlling court decrees, governing allocation of rights in the Truckee and Carson waters respectively, bench lands are entitled to a maximum water duty of 4.5 acre feet per acre/year (afa) and bottom lands receive a maximum of only 3.5 afa. ¹ Rights to the Carson The instant dispute arises in the context of the continuing proceedings in the Alpine litigation. In the Alpine Decree, the court retained continuing jurisdiction for water allocation and appointed a Watermaster. The decree directed the Watermaster to use historic practices, customs, agreements and decrees in the administration of the river. Alpine Land, 503 F.Supp. at 891, aff'd as modified, 697 F.2d at 851.

                River waters are governed by the Alpine Decree.    United States v. Alpine Land & Reservoir Co., 503 F.Supp. 877 (D.Nev.1980), aff'd as modified, 697 F.2d 851, 853 (9th Cir.), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983).  Rights to the Truckee River waters are governed by the Orr Ditch Decree.  United States v. Adams (Orr Ditch), Equity Docket No. A3 (D.Nev. Sept. 8, 1944).  Much of the history of these proceedings, which have continued since 1913, is related in Nevada v. United States, 463 U.S. 110, 113-18, 103 S.Ct. 2906, 2910-12, 77 L.Ed.2d 509 (1983)
                

Unfortunately, neither the Orr Ditch Decree nor the Alpine Decree classified or described any method for classifying Project lands as either bench or bottom. The decrees themselves provide no criterion other than the use of historic practices to determine the appropriate water duty beneficial to the lands. See Alpine Land, 503 F.Supp. at 889-90. That omission gives rise to this dispute. The principal issue on appeal is whether the Department of Interior (DOI) or the district court bears the primary responsibility for formulating these initial classifications, subject to later resolution by the Watermaster of disputed classifications.

The Reclamation Act of 1902 (Act), 43 U.S.C. Sec. 371 et seq. (1982), was intended to be a comprehensive legislative scheme which charged the Secretary of Interior (Secretary) to examine arid and semi-arid lands and survey them for development. Henkel v. United States, 237 U.S. 43, 49, 35 S.Ct. 536, 539, 59 L.Ed. 831 (1915); see Nevada, 463 U.S. at 128, 103 S.Ct. at 2917. To meet this responsibility the Secretary is charged with supervising the business related to the Bureau of Reclamation (BOR), 43 U.S.C. Sec. 1457(6) (1982), which in turn is responsible for administering the reclamation of arid lands, 43 U.S.C. Sec. 373a (1982). Thus, DOI has responsibility for overseeing the management of the Newlands Reclamation Project.

As part of DOI's responsibility for overseeing the management of the Project, the Secretary promulgated regulations in 1967 to initiate controls lacking in the past to limit the diversion of waters by TCID and thus make more water available for delivery to Pyramid Lake. 43 C.F.R. Sec. 418.1(b) (1988). The regulations provide that they shall be in compliance with all the terms and conditions of both the Orr Ditch and Alpine decrees. 43 C.F.R. Sec. 418.4(a) (1988).

In 1967, DOI began issuing operating criteria and procedures (OCAP) to govern the diversion of Truckee River flows to Lahontan Reservoir for use in the Project. In 1986, DOI proposed and eventually adopted OCAP requiring TCID to deliver water to the Project according to the classification of bench and bottom lands within the Project as indicated on maps prepared by the BOR. The OCAP also provided that objections to BOR's classifications of bench and bottom lands would be resolved by the Watermaster pursuant to the Orr Ditch and Alpine decrees. TCID's efforts in this proceeding have been directed toward overturning those regulations and substituting its own bench/bottom designations as the starting point for the Watermaster's determinations.

After several hearings and repeated comparisons of the bench/bottom classifications proposed by DOI and TCID the district court eventually ruled in favor of TCID, in what amounted to a de novo review of DOI's bench/bottom classifications. The government appeals, contending that its regulations were promulgated in the exercise of authority properly delegated to the agency, and should have been reviewed under deferential standards appropriate to such regulations.

The district court also ruled that the Tribe lacked standing to participate in any of the Watermaster's future determinations

regarding individual farm lands. The Tribe appeals that decision.

Proceedings Below

Challenges to DOI's OCAP began in 1972 in the District of Columbia. Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1973). The court reserved jurisdiction to review annual OCAP. Id. at 261, 262. That case was transferred in 1985 to the district court in Nevada where it continues as Pyramid Lake Paiute Tribe of Indians v. Hodel, No. CV-85-0197-BRT. The district court in Nevada retains continuing jurisdiction to review the annual revisions of the OCAP. See Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364 (9th Cir.1989).

The interim OCAP giving rise to this dispute were promulgated in 1986. They provided that the BOR's Bench and Bottom Land Classification Maps, as they might be periodically updated, would form the basis for determining the maximum water to be delivered to each parcel of Project land. The OCAP further provided that TCID could institute proceedings in the Alpine and Orr Ditch cases to obtain resolution of any dispute it had with the maps.

The effect of DOI's initial land classification was to designate as "bottom" 9,066 acres of land previously treated as "bench" and to designate 2,699 acres as "bench" previously treated as "bottom." These lands are primarily in the Carson Division. ² Thus, pursuant to DOI's initial classifications, certain farms would be receiving substantially less water than they currently receive. ³

Not surprisingly, in March of 1986, TCID filed a motion in Pyramid Lake Paiute Tribe of Indians v. Hodel to vacate the provision of the OCAP requiring the use of BOR's map to classify bench/bottom lands. On April 25, 1986, the district court issued an order directing TCID to file a petition in a separate action to resolve the dispute over the proper methodology to be used to determine which Project lands are bench and which are bottom.

Accordingly, on May 23, 1986, TCID instituted this proceeding by filing a petition for declaratory relief seeking to determine the proper criteria to be used to classify Project lands as either bench or bottom. Specifically, TCID sought a declaration that (1) DOI's classification of land as bench/bottom was arbitrary, unreasonable and not enforceable, and (2) water...