United States v. U.S. Bd. of Water Comm'rs, 15-16316
| Decision Date | 22 May 2018 |
| Docket Number | No. 15-16323, No. 15-16489, No. 15-16317,No. 15-16316, No. 15-16319, No. 15-16321,15-16316 |
| Citation | 890 F.3d 1134 |
| Parties | UNITED STATES of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Nevada State Engineer, Respondent-Appellant, v. UNITED STATES BOARD OF WATER COMMISSIONERS, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC ; Settelmeyer–Rosse Ranch Management, LLC ; Six–N–Ranch, Inc. ; Straggler, LLC, Objectors-Appellees, and Nevada Department of Wildlife; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group; Walker River Irrigation District, Defendants. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Nevada Department of Wildlife, Respondent-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC ; Settelmeyer–Rosse Ranch Management, LLC ; Six–N–Ranch, Inc. ; Straggler, LLC, Objectors-Appellees, and Nevada State Engineer; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group; Walker River Irrigation District, Defendants. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, Mineral County, Intervenor-Plaintiff, and National Fish and Wildlife Foundation, Petitioner-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC ; Settelmeyer–Rosse Ranch Management, LLC ; Six–N–Ranch, Inc. ; Straggler, LLC, Objectors-Appellees and Nevada State Engineer; Nevada Department of Wildlife; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents Walker Lake Working Group; Walker River Irrigation District, Defendants. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Walker River Irrigation District, Defendant-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC ; Settelmeyer–Rosse Ranch Management, LLC ; Six–N–Ranch, Inc. ; Straggler, LLC, Objectors-Appellees, and Nevada State Engineer; Nevada Department of Wildlife; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group, Defendant. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, and Mineral County, Intervenor-Plaintiff-Appellant, Walker Lake Working Group, Defendant-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC ; Settelmeyer–Rosse Ranch Management, LLC ; Six–N–Ranch, Inc. ; Straggler, LLC, Objectors-Appellees, and Nevada State Engineer; Nevada Department of Wildlife; Mono County, California; Lyon County, Nevada, Respondents, Walker River Irrigation District, Defendant. United States of America, Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Walker River Paiute Tribe, Intervenor-Plaintiff-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC ; Settelmeyer–Rosse Ranch Management, LLC ; Six–N–Ranch, Inc. ; Straggler, LLC, Objectors-Appellees, and Nevada Department of Wildlife; Nevada State Engineer; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group; Walker River Irrigation District ; Joseph Landolt ; Beverly Landolt, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Water was plentiful when the first settlers arrived in northwestern Nevada ten thousand years ago. Massive Lake Lahontan spread from the Sierra Nevada to the Carson Sink, the Black Rock Desert, and as far as California and Oregon. "The world," they said, "was all water."1 Lake Lahontan has slowly vanished over the years, and now survives only in the form of a few desert lakes, including the subject of this case, Walker Lake, the terminus of the Walker River.
Walker Lake has suffered since the 1860s, when the River's waters were first diverted for agriculture, and the Lake's volume has plummeted precipitously in recent years. In response, federal, state, tribal, local, and private organizations and authorities have banded together to save the Lake. The federal program at issue in this case is a voluntary water rights leasing program managed by the National Fish and Wildlife Foundation ("NFWF") to convey water from Walker River downstream to the Lake as part of the federal Walker Basin Restoration Program. Like duck stamps and emissions markets, NFWF's program proposes to employ free market forces to restore a natural balance between the competing demands of agriculture and conservation.
The Nevada State Engineer and the California State Water Resources Control Board approved change applications for NFWF's program over the objections of farmers ("the Farmers") who claim injury to their water rights. The Farmers brought their complaints to the district court which, as the Decree court, has maintained in rem jurisdiction over the waters of Walker River since 1902 in accordance with the Walker River Decree of 1936. The Decree court rejected the state agency rulings, and found that the program, as proposed, would injure the Farmers' water rights.
We examine two questions. First, did the Decree court properly reject the state agency rulings — that NFWF's program would not cause any cognizable injury to the Farmer's water rights — based on its de novo review of the Walker River Decree? Second, does the export restriction of the Walker River Decree prohibit delivering water to Walker Lake because it is "outside of" the Walker River Basin? We answer both questions in the negative, reverse the judgment of the Decree court, and remand for approval of the change applications.
The Walker River consists of two forks that begin in California and end in Nevada. The West Walker River springs from the Emigrant Wilderness of Stanislaus National Forest, and flows through Topaz Lake and north into Nevada's Smith and Mason Valleys. The East Walker River springs from the Hoover Wilderness, passes through Bridgeport Reservoir and into Nevada east of the Wovoka Wilderness and Bald Mountain, before streaming into Mason Valley. The forks join by Yerington and flow north to Wabuska, before turning southeasterly through the land of the Walker River Paiute Tribe ("the Tribe"). See United States v. Walker River Irrigation Dist., 11 F.Supp. 158, 161 (D. Nev. 1935). From there, the River flows through Weber Reservoir and Schurz, and into Walker Lake. See id. at 160-62.
Walker Lake is about 13 miles long by 5 miles wide, tucked against the east side of the Wassuk Range in Mineral County, Nevada.
It is one of the last few puddle remnants of ancient Lake Lahontan.2 For centuries, the Lake served an important ecological role as fishery for the native Lahontan Cutthroat Trout — the state fish of Nevada — and as home and resting grounds for hundreds of species, including fish, insects, migratory birds, and wild horses.3 Human life at the Lake is quite ancient as well, dating back to the spearheads in Mastodon bones and the petroglyphs carved by the Lake's northern shores.4
By the early 1860s, miners looked to the mountains of the Walker River Basin, seeking the same silver bonanzas unearthed in the Comstock Lode near Lake Tahoe. Following expanded mining operations, innovators in irrigation technology arrived to make the desert bloom. They succeeded. The Smith and Mason Valleys soon became the picturesque and fertile agricultural region they are today. More than half of the valley farmland is dedicated to alfalfa, Nevada's cash crop.
As agriculture boomed, water flows to Walker Lake diminished. See DRI Report, supra note 3, at 7. Between 1882 and 2007, the Lake's volume plummeted from nine million to two million acre feet and its salinity rose from 2,500 mg/L total dissolved solids (TDS) to 16,000 mg/L TDS.5 Just a few years later in 2013, salinity exceeded 20,000 mg/L TDS.6 Lahontan cutthroat trout die in such a saline environment; they and many...
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United States v. U.S. Bd. of Water Comm'rs
...Board's request for modification filed in 15-16321 and 15-16323 on June 7, 2018 is GRANTED.The Opinion filed May 22, 2018, appearing at 890 F.3d 1134, is amended as follows:1. At 890 F.3d at 1146, footnote 11, replace "The California Control Board only has authority over water rights establ......
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