U.S. v. Truckee-Carson Irr. Dist.

• Decision Date: 05 January 1982
• Docket Number: 78-1493,TRUCKEE-CARSON,Nos. 78-1115,s. 78-1115
• Parties: UNITED STATES of America, Plaintiff-Appellant, and Pyramid Lake Paiute Tribe of Indians, Plaintiff-Intervenor-Appellant, v.IRRIGATION DISTRICT, STATE OF NEVADA, Sierra Pacific Power Company, City of Washoe, and Washoe County Treasurer, Trustee, Albert A. Alcorn, and Approximately 17,000 Other Individually Named Persons, Firms, Partnerships, and Corporations, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 351

666 F.2d 351

UNITED STATES of America, Plaintiff-Appellant, and Pyramid Lake Paiute Tribe of Indians, Plaintiff-Intervenor-Appellant, v. TRUCKEE-CARSON IRRIGATION DISTRICT, STATE OF NEVADA, Sierra

Pacific Power Company, City of Washoe, and Washoe County

Treasurer, Trustee, Albert A. Alcorn, and Approximately

17,000 Other Individually Named Persons, Firms,

Partnerships, and Corporations, Defendants-Appellants.

Nos. 78-1115, 78-1493.

United States Court of Appeals, Ninth Circuit.

Jan. 5, 1982.

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

Before TUTTLE ^*, SKOPIL, and SCHROEDER, Circuit Judges.

ORDER

The opinion in the above-named case, currently published at 649 F.2d 1286, 9th Cir. is ordered amended as follows:

1. In the second complete paragraph at 649 F.2d at 1294, the sentence: "Section 4 of that Act declared that 'restoration of the Pyramid Lake Trout Fishery to its full potential value is deemed to be of national interest and importance' is ordered deleted. The following is ordered substituted: "The House Report of that Act declared that 'restoration of the Pyramid Lake Trout Fishery to its full potential value is deemed to be of national interest and importance.' H.R.Rep. No. 2055, 84th Cong., 2d Sess. 4-5, reprinted in 1956 U.S. Code Cong. & Ad. News 3755, 3758."

2. At the end of the third complete paragraph at page 1294, the citation to 15 C.F.R. § 17.11 at 87-88 (1977) is ordered changed to 50 C.F.R. § 17.11 at 87-88 (1977).

3. At page 1295, at the end of the paragraph which begins on page 1294, the last word in the paragraph is ordered changed to "1961" from "1969".

4. At page 1299, the last citation sentence in the paragraph beginning on page 1298 is ordered deleted. The correct citation is "See 2 Waters and Water Rights § 116.1 at 162 n.20 (R. Clark ed. 1967)."

5. At the end of footnote 13 at 649 F.2d at 1304, the following should be added:

"The level of scrutiny set forth in Restatement Second § 86(e) is appropriate here. The Federal-Indian relationship is long established in the law and involves fiduciary obligations. See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (8 L.Ed. 25) (1931); Navajo Tribe v. United States, 364 F.2d 320 (Ct.Cl.1966). In class actions, by contrast, the relation between the class and the class representative is transitory. Outside the context of the action, there is no legal relation. The same is true in actions by most government representatives, where the only relation is between a citizen and the government agency, entailing no legal relation. See, e.g., Consumers Union v. Consumer Product Safety Comm., 590 F.2d 1209 (D.C.Cir.1978); Southwest Airlines Co. v. Texas Int'l Airlines, Inc., supra, 546 F.2d 84 ((5th Cir.))."

6. At the end of the sentence beginning on page 1307 and ending on page 1308, the following is ordered added:

"If the Orr Ditch defendants were aware of the government's failure to fulfill its responsibility to the Tribe, and therefore did not reasonably rely on that representation, giving preclusive effect the decree would deny the Tribe due process. If the Orr Ditch defendants were without knowledge, enforcing the decree would not contravene due process."

The following sentence should begin a new paragraph.

7. The following is ordered added to the end of the first complete paragraph on page 1309:

"Accordingly, the Tribe's water right cannot be greater than the rights decreed to the government in Orr Ditch. The government's priority is superior to the rights of subsequent appropriators. Yet the Orr Ditch decree defines the maximum limits of any rights the Tribe may establish on remand. Subsequent appropriators will be no better nor worse off if the Tribe takes more water than they were when TCID was taking its full share."

8. At page 1313, the first word of the fourth line of the indented quotation in the left-hand column...