US v. Bell
| Decision Date | 20 April 2010 |
| Docket Number | 05-16909.,05-16158,05-16157,No. 05-16154,05-16189,05-16187,05-16154 |
| Citation | 602 F.3d 1074 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arthur W. BELL, IV; Peraldo Brothers; Christine L. Matley Family Trust; Ray Conlan; Francis E. Dubois, III; Fallon Paiute Shoshone Indian Tribe; City of Fallon; Frey Ranch Partnership; Debra S. Frey; Charles P. Frey, Jr.; Calvin R. Moffitt; State of NV Div of L, Division of Lands; State of Nevada Parole Dept., Division of Wildlife; Stillwater Farms, Inc.; The Larry Fritz Family Trust; Town of Fernley, Defendants, and Board of Directors of TCID (Truckee Irrigation District), Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Arthur W. Bell, IV; Peraldo Brothers; Christine L. Matley Family Trust; Ray Conlan; Francis E. Dubois, III; Fallon Paiute Shoshone Indian Tribe; City of Fallon; Frey Ranch Partnership; Debra S. Frey; Charles P. Frey, Jr.; Calvin R. Moffitt; State of NV Div of L, Division of Lands; State of Nevada Parole Dept., Division of Wildlife; Stillwater Farms, Inc.; The Larry Fritz Family Trust; Town of Fernley, Defendants, and Board of Directors of TCID (Truckee Irrigation District) Truckee-Carson Irrigation District, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Arthur W. Bell IV; Peraldo Brothers; Christine L. Matley Family Trust; Ray Conlan; Francis E. Dubois, III; Fallon Paiute Shoshone Indian Tribe; City of Fallon; Frey Ranch Partnership; Debra S. Frey; Charles P. Frey, Jr.; Calvin R. Moffitt; Stillwater Farms, Inc.; The Larry Fritz Family Trust; Town of Fernley; Board of Directors of TCID (Truckee Irrigation District), Truckee-Carson Irrigation District, Defendants, and State of Nevada, Division of Lands; State of Nevada Division of Wild Life, Defendants-Appellants. United States of America, Plaintiff, v. Arthur W. Bell IV; Peraldo Brothers; Christine L. Matley Family Trust; Ray Conlan; Francis E. Dubois, III; Fallon Paiute Shoshone Indian Tribe; City of Fallon; Frey Ranch Partnership; Debra S. Frey; Charles P. Frey, Jr.; Calvin R. Moffitt; State of NV Div of L, Division of Lands; State of Nevada Parole Dept., Division of Wildlife; Stillwater Farms, Inc.; The Larry Fritz Family Trust; Town of Fernley, Defendants, and Board of Directors of TCID (Truckee Irrigation District) Truckee-Carson Irrigation District, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Arthur W. Bell, IV, Defendant, Francis E. Dubois, III; Fallon Paiute Shoshone Indian Tribe, Defendants, Frey Ranch Partnership; Debra S. Frey; Charles P. Frey, Jr., Defendants, State of NV Div of L, Division of Lands; State of Nevada Parole Dept., Division of Wildlife; Stillwater Farms, Inc., Defendants, Town of Fernley; Board of Directors of TCID (Truckee Irrigation District), Truckee-Carson Irrigation District, Defendants, and Peraldo Brothers; Christine L. Matley Family Trust; Ray Conlan, Defendants-Appellants, City of Fallon, Defendant-Appellant, Calvin R. Moffitt, Defendant-Appellant, The Larry Fritz Family Trust, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Arthur W. Bell, IV; Peraldo Brothers; Christine L. Matley Family Trust; Ray Conlan; Francis E. Dubois, III; Fallon Paiute Shoshone Indian Tribe; City of Fallon; Frey Ranch Partnership; Debra S. Frey; Charles P. Frey, Jr.; Calvin R. Moffitt; State of NV Div of L, Division of Lands; State of Nevada Parole Dept., Division of Wildlife; Stillwater Farms, Inc.; The Larry Fritz Family Trust; Town of Fernley, Defendants, and Board of Directors of TCID (Truckee Irrigation District Truckee-Carson Irrigation District, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Katherine J. Barton, Washington, DC, for plaintiff-appellee/appellant United States of America.
Don Springmeyer, Las Vegas, NV, for intervenor-appellee/appellant Pyramid Lake Paiute Tribe of Indians.
Michael J. Van Zandt, San Francisco, CA, for defendant-appellant/appellee Board of Directors of Truckee Irrigation District.
Michael L. Wolz, Reno, NV, for defendants-appellants State of Nevada.
Michael F. Mackdon, Fallon, NV, for defendants-appellants State of Nevada.
Before: MARY M. SCHROEDER and MARSHA S. BERZON, Circuit Judges, and MILTON I. SHADUR,* District Judge.
BACKGROUND
The long, divisive history of this and related litigation over the waters of the Truckee and Carson Rivers, and the decline of Pyramid Lake, is best reflected in Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983), and in several landmark opinions of this and other courts. See, e.g., Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364 (9th Cir.1989) ("Tribe v. Hodel"); Truckee-Carson Irrigation Dist. v. Sec'y of Dep't of Interior, 742 F.2d 527 (9th Cir. 1984) ("TCID v. Secretary"); United States v. Alpine Land & Reservoir Co., 697 F.2d 851 (9th Cir.1983); Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1973) ("Tribe v. Morton"). Congress had passed the Reclamation Act in 1902, creating projects to reclaim otherwise arid western lands for farming. See Reclamation Act of 1902, Pub.L. No. 57-161, 32 Stat. 388. One of the projects created by the Reclamation Act, the Newlands Project ("Project"), controls diversions from the Truckee and Carson Rivers. The Truckee-Carson Irrigation District ("TCID") has managed the Project under a contract with the federal government for decades. This particular case concerns the United States' effort to recoup excess diversions TCID permitted over many years.
The Nevada district court originally established the amount of water that could be diverted for agricultural uses from the Truckee River in a 1944 order known as the Orr Ditch decree, Equity No. A-3 (D.Nev.1944). The court did not issue a final order on rights to the Carson until 1980, in United States v. Alpine Land & Reservoir Co., 503 F.Supp. 877 (D.Nev. 1980) ("Alpine decree").
In the mid-20th Century, concerns grew over the adverse effect of the diversions on Pyramid Lake's unique fish populations. See Nevada, 463 U.S. at 119 n. 7, 103 S.Ct. 2906 (). Water from the Truckee naturally flows to Pyramid Lake which is under the control of the Pyramid Lake Paiute Tribe ("the Tribe"). The Secretary of the Interior ("Secretary") responded to the concerns about Pyramid Lake fish in 1967 by imposing operating criteria and procedures ("OCAPs") limiting the maximum diversions from the Truckee and Carson.
Unhappy with the OCAPs as too generous to the farmers, the Tribe successfully challenged them in the District of Columbia. The D.C. district court in Tribe v. Morton, 354 F.Supp. at 256, ordered the Secretary to implement a more restrictive OCAP. Known as the "1973 OCAP," it was challenged by TCID in this court. We upheld it in TCID v. Secretary, 742 F.2d at 532, yet TCID has refused to follow it.
In 1990, Congress stepped in to attempt a resolution of the ongoing dispute between the Tribe and TCID by enacting the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990, Pub.L. No. 101-618, 104 Stat. 3289 ("Settlement Act"). The Settlement Act, as relevant to this case, provides:
The Secretary shall henceforth ensure compliance with all of the provisions of the operating criteria and procedures referenced in paragraph (2) of this subsection or any applicable provision of any other operating criteria or procedures for the Newlands Project previously adopted by the Secretary, and shall, pursuant to subsection 709(h) or judicial proceeding, pursue recoupment of any water diverted from the Truckee River in excess of the amounts permitted by any such operating criteria and procedures.
Settlement Act § 209(j)(3). The Settlement Act also states that it should not be read in such a manner as to conflict with the Orr Ditch and Alpine decrees. See Settlement Act § 210(b)(13).
Five years after the enactment of the Settlement Act the United States instituted this case by filing a complaint against TCID, its board members, and all water users in the Project as a class, seeking to recoup over one million acre-feet ("af") of water diverted in excess of applicable OCAPs from 1973-1988. The Tribe intervened as a plaintiff.
After lengthy evidentiary proceedings, the district court in 2003 issued its decision holding that TCID had willfully failed to comply with the 1973 OCAP. Nevertheless, although the government had sought over a million af of water as recoupment, the district court awarded just under 200,000 af. The court credited the report of TCID's expert and concluded that the government was only entitled to recoupment for excess diversions in 1974, 1975, 1978 and 1979; the court also awarded recoupment for spills of water in 1979 and 1980. The court held that the government, and not TCID, was responsible for excess diversions after 1980, because the government had failed to revise the OCAPs to reflect the water duties in the 1980 Alpine decree.
With respect to interest on the water TCID owed the government by virtue of its decision, the court initially denied both prejudgment and postjudgment interest. The reasons it gave were the government's delay in bringing this action and the government's having inadvertently destroyed certain records relevant to the litigation. The district court later modified this decision and awarded postjudgment water interest. It ruled TCID must repay two-percent each year on the balance of water remaining to be recouped for replenishing the waters of Pyramid Lake.
TCID now appeals the district court's ruling that the government under the Settlement Act can pursue any claim for past excess diversions. It also appeals the award of post-judgment interest on water yet to be recouped and, on behalf of water rights holders (...
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Case summaries.
...Frey; Norman W. Frey; Fallon-Paiute Shoshone Tribe. (308) See, e.g., Nevada v. United States, 463 U.S. 110 (1983); United States v. Bell, 602 F.3d 1074 (9th Cir. 2010); Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364 (9th Cir. 1989); Truckee-Carson Irrigation Dist. v. Sec'y of D......