United States v. Board of Directors of the Truckee-Carson Irrigation District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 12-15474

Plaintiff-Appellant,

D.C. No.

and 3:95-cv-00757-

HDM

PYRAMID LAKE PAIUTE TRIBE OF

INDIANS,

Intervenor-Plaintiff,

v.

BOARD OF DIRECTORS OF THE

TRUCKEE-CARSON IRRIGATION

DISTRICT , individually, and as

Representatives of the Class of all

Water Users in the Newlands

Reclamation Project; TRUCKEE-

CARSON IRRIGATION DISTRICT ,

Defendants-Appellees,

and

STATE OF NEVADA , Department of

Conservation and Natural Resources,

Division of Wildlife and Division of

State Lands; CHURCHILL COUNTY ;

DODGE BROTHERS AND DODGE JR.

FAMILY TRUST ; DAVID P.

HARRIGAN ; GEORGE AND SHELLY

2 UNITED STATES V . BOARD OF DIRECTORS

RAE RAKUSHIN ; WILLIAM D. AND

GWENDOLYN WASHBURN ; MARVIN

WEISHAUPT ; HOWARD D. WOLF

FAMILY TRUST ; RAY CONLAN ;

CORKILL BROS., INC.; CALVIN R.

MOFFITT AND CANDACE J. MOFFITT ;

BELL FAMILY TRUST ; LARRY L.

FRITZ FAMILY TRUST ; DAVID L.

MATLEY AND CHRISTINE L. MATLEY

FAMILY TRUST AND DAVID MATLEY ;

HAROLD G. AND RHONDA JOHNSON

AND JOHNSON FAMILY TRUST ; A&A

DAIRY ; JOYCE LOHR; PERALDO

BROTHERS; STILLWATER FARMS,

INC.; CHARLES P. FREY , JR. AND

DEBRA S. FREY ; NORMAN W. FREY ;

FALLON -PAIUTE SHOSHONE TRIBE ,

Intervenor-Defendants.

UNITED STATES OF AMERICA , No. 12-15476

Plaintiff,

D.C. No.

and 3:95-cv-00757-

HDM

PYRAMID LAKE PAIUTE TRIBE OF

INDIANS,

Intervenor-Plaintiff–Appellant,

v.

BOARD OF DIRECTORS OF THE

TRUCKEE-CARSON IRRIGATION

UNITED STATES V . BOARD OF DIRECTORS 3

DISTRICT , individually, and as

Representatives of the Class of all

Water Users in the Newlands

Reclamation Project; TRUCKEE-

CARSON IRRIGATION DISTRICT ,

Defendants-Appellees,

and

STATE OF NEVADA , Department of

Conservation and Natural Resources,

Division of Wildlife and Division of

State Lands; CHURCHILL COUNTY ;

DODGE BROTHERS AND DODGE JR.

FAMILY TRUST ; DAVID P.

HARRIGAN ; GEORGE AND SHELLY

RAE RAKUSHIN ; WILLIAM D. AND

GWENDOLYN WASHBURN ; MARVIN

WEISHAUPT ; HOWARD D. WOLF

FAMILY TRUST ; RAY CONLAN ;

CORKILL BROS., INC.; CALVIN R.

MOFFITT AND CANDACE J. MOFFITT ;

BELL FAMILY TRUST ; LARRY L.

FRITZ FAMILY TRUST ; DAVID L.

MATLEY AND CHRISTINE L. MATLEY

FAMILY TRUST AND DAVID MATLEY ;

HAROLD G. AND RHONDA JOHNSON

AND JOHNSON FAMILY TRUST ; A&A

DAIRY ; JOYCE LOHR; PERALDO

BROTHERS; STILLWATER FARMS,

INC.; CHARLES P. FREY , JR. AND

4 UNITED STATES V . BOARD OF DIRECTORS

DEBRA S. FREY ; NORMAN W. FREY ;

FALLON -PAIUTE SHOSHONE TRIBE ,

Intervenor-Defendants.

UNITED STATES OF AMERICA , No. 12-15594

Plaintiff-Appellee,

D.C. No.

PYRAMID LAKE PAIUTE TRIBE OF 3:95-cv-00757-

INDIANS, HDM

Intervenor-Plaintiff–Appellee,

v.

BOARD OF DIRECTORS OF THE

TRUCKEE-CARSON IRRIGATION

DISTRICT , individually, and as

Representatives of the Class of all

Water Users in the Newlands

Reclamation Project; TRUCKEE-

CARSON IRRIGATION DISTRICT ,

Defendants,

STATE OF NEVADA , Department of

Conservation and Natural Resources,

Division of Wildlife and Division of

State Lands; CHURCHILL COUNTY ;

DODGE BROTHERS AND DODGE JR.

FAMILY TRUST ; DAVID P.

HARRIGAN ; GEORGE AND SHELLY

RAE RAKUSHIN ; WILLIAM D. AND

UNITED STATES V . BOARD OF DIRECTORS 5

GWENDOLYN WASHBURN ; MARVIN

WEISHAUPT ; HOWARD D. WOLF

FAMILY TRUST ,

Intervenor-Defendants,

STILLWATER FARMS, INC.; CHARLES

P. FREY , JR. AND DEBRA S. FREY ;

NORMAN W. FREY ; FALLON -PAIUTE

SHOSHONE TRIBE ,

Intervenor-Defendants,

and

RAY CONLAN ; CORKILL BROS., INC.;

CALVIN R. MOFFITT AND CANDACE

J. MOFFITT ; BELL FAMILY TRUST ;

LARRY L. FRITZ FAMILY TRUST ;

DAVID L. MATLEY AND CHRISTINE

L. MATLEY FAMILY TRUST AND

DAVID MATLEY ; HAROLD G. AND

RHONDA JOHNSON AND JOHNSON

FAMILY TRUST ; A&A DAIRY ; JOYCE

LOHR; PERALDO BROTHERS,

Intervenor-Defendants–Appellants.

6 UNITED STATES V . BOARD OF DIRECTORS

UNITED STATES OF AMERICA , No. 12-15595

Plaintiff-Appellee,

D.C. No.

PYRAMID LAKE PAIUTE TRIBE OF 3:95-cv-00757-

INDIANS, HDM

Intervenor-Plaintiff–Appellee,

v.

BOARD OF DIRECTORS OF THE

TRUCKEE-CARSON IRRIGATION

DISTRICT , individually, and as

Representatives of the Class of all

Water Users in the Newlands

Reclamation Project; TRUCKEE-

CARSON IRRIGATION DISTRICT ,

Defendants,

STATE OF NEVADA , Department of

Conservation and Natural Resources,

Division of Wildlife and Division of

State Lands; DODGE BROTHERS AND

DODGE JR. FAMILY TRUST ; DAVID P.

HARRIGAN ; GEORGE AND SHELLY

RAE RAKUSHIN ; WILLIAM D. AND

GWENDOLYN WASHBURN ; MARVIN

WEISHAUPT ; HOWARD D. WOLF

FAMILY TRUST ; CITY OF FALLON ;

RAY CONLAN ; CORKILL BROS., INC.;

CALVIN R. MOFFITT AND CANDACE

J. MOFFITT ; BELL FAMILY TRUST ;

LARRY L. FRITZ FAMILY TRUST ;

DAVID L. MATLEY AND CHRISTINE

UNITED STATES V . BOARD OF DIRECTORS 7

L. MATLEY FAMILY TRUST AND

DAVID MATLEY ; HAROLD G. AND

RHONDA JOHNSON AND JOHNSON

FAMILY TRUST ; A&A DAIRY ; JOYCE

LOHR; PERALDO BROTHERS;

STILLWATER FARMS, INC.; CHARLES

P. FREY , JR. AND DEBRA S. FREY ;

NORMAN W. FREY ; FALLON -PAIUTE

SHOSHONE TRIBE ,

Intervenor-Defendants,

and

CHURCHILL COUNTY ,

Intervenor-Defendant–Appellant.

UNITED STATES OF AMERICA , No. 12-15599

Plaintiff-Appellee,

D.C. No.

PYRAMID LAKE PAIUTE TRIBE OF 3:95-cv-00757-

INDIANS, HDM

Intervenor-Plaintiff–Appellee,

OPINION

v.

BOARD OF DIRECTORS OF THE

TRUCKEE-CARSON IRRIGATION

DISTRICT , individually, and as

Representatives of the Class of all

Water Users in the Newlands

8 UNITED STATES V . BOARD OF DIRECTORS

Reclamation Project; TRUCKEE-

CARSON IRRIGATION DISTRICT ,

Defendants,

CHURCHILL COUNTY ; DODGE

BROTHERS AND DODGE JR. FAMILY

TRUST ; DAVID P. HARRIGAN ;

GEORGE AND SHELLY RAE

RAKUSHIN ; WILLIAM D. AND

GWENDOLYN WASHBURN ; MARVIN

WEISHAUPT ; HOWARD D. WOLF

FAMILY TRUST ; RAY CONLAN ;

CORKILL BROS., INC.; CALVIN R.

MOFFITT AND CANDACE J. MOFFITT ;

BELL FAMILY TRUST ; LARRY L.

FRITZ FAMILY TRUST ; DAVID L.

MATLEY AND CHRISTINE L. MATLEY

FAMILY TRUST AND DAVID MATLEY ;

HAROLD G. AND RHONDA JOHNSON

AND JOHNSON FAMILY TRUST ; A&A

DAIRY ; JOYCE LOHR; PERALDO

BROTHERS; STILLWATER FARMS,

INC.; CHARLES P. FREY , JR. AND

DEBRA S. FREY ; NORMAN W. FREY ;

FALLON -PAIUTE SHOSHONE TRIBE ,

Intervenor-Defendants,

and

UNITED STATES V . BOARD OF DIRECTORS 9

STATE OF NEVADA , Department of

Conservation and Natural Resources,

Division of Wildlife and Division of

State Lands,

Intervenor-Defendant–Appellant.

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, Senior District Judge, Presiding

Argued and Submitted

June 12, 2013—San Francisco, California

Filed July 22, 2013

Before: Mary M. Schroeder, Marsha S. Berzon,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Schroeder

SUMMARY*

Water Rights

The panel dismissed appeals from Churchill County and

the State of Nevada, withdrew the mandate in United States

v. Bell, No. 05-16154+, 602 F.3d 1074 (9th Cir. 2010), and

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

10 UNITED STATES V . BOARD OF DIRECTORS

amended the opinion, and vacated the judgment of the district

court on remand in an action concerning diversion of water

from the Truckee and Carson Rivers to either irrigation use or

for the benefit of the Pyramid Lake Paiute Indian Tribe.

In the Bell case, the panel held that in calculating the

amount of excess water diversions, the district court had

failed appropriately to account for the margin of error with

respect to the gauges that measured the flow of the

diversions. The panel held that it was mistaken in its

understanding of the scope of the gauge error, and that it

should not have limited recalculation to the four years in

which the district court initially found excess diversions. The

panel held that it should have ordered recalculation of the

gauge error’s impact in all the years potentially affected. The

panel withdrew the mandate, and ordered the district court to

recalculate the effect of gauge error not only for the years

1974, 1975, 1978, and 1979, but for the years 1973, 1976,

1985, and 1986 as well, to determine the amount of any

excess diversions.

COUNSEL

Ignacia S. Moreno, Assistant Attorney General, Fred

Disheroon, David C. Shilton, Stephen M. MacFarlane, and

Katherine J. Barton (argued), United States Department of

Justice, Environmental & Natural Resources Division,

Washington, D.C., for Plaintiff-Appellant/Appellee United

States of America.

UNITED STATES V . BOARD OF DIRECTORS 11

Don Springmeyer (argued) and Christopher W. Mixson,

Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, Las Vegas,

Nevada, for Intervenor-Plaintiff–Appellant/Appellee Pyramid

Lake Paiute Tribe of Indians.

Michael J. Van Zandt and Neil R. Bardack (argued), Hanson

Bridgett LLP, San Francisco, California, for

Defendants–Appellees/Appellants Board of Directors of the

Truckee-Carson Irrigation District and Truckee-Carson

Irrigation District.

Laura A. Schroeder and Therese A. Ure (argued), Schroeder

Law Offices, P.C., Reno, Nevada, for Intervenor Defendant:

Cross-Appellant/Appellee Churchill County, Nevada.

Catherine Cortez Masto, Attorney General; Nhu Q. Nguyen,

Senior Deputy Attorney General, Carson City, Nevada, for

Intervenor-Defendant–Appellant State of Nevada,

Department of Conservation and Natural Resources, Division

of Wildlife and Division of State Land.

Michael F. Mackedon, Mackedon, McCormick & King,

Fallon, Nevada, for Intervenor-Defendants–Appellees City of

Fallon, et al.

OPINION

SCHROEDER, Circuit Judge:

We deal in this appeal with what essentially amounts to

a footnote to the long-running litigation over how much water

from the Truckee and Carson Rivers should be diverted to

irrigation and how much should flow into Pyramid Lake for

12 UNITED STATES V . BOARD OF DIRECTORS

the benefit of the Pyramid Lake Paiute Indian Tribe (“the

Tribe”). See 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 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”).

The federal government and the Tribe now ask us to

reconsider one aspect of our most recent opinion. See Bell,

602 F.3d at 1085, 1087.

Bell concerned water that the Truckee-Carson Irrigation

District (“TCID”) diverted for irrigation between 1973 and

1988 and that the government claimed was in excess of the

amount allowed by applicable regulation. We held, among

other things, that in calculating the amount of excess

diversions, the district court had failed appropriately to

account for the margin of error with respect to the gauges that

measured the flow of the diversions. Id. at 1085. The district

court calculated the amount of water diverted by choosing the

low end of this margin of error and thus assigned all

uncertainty in the gauge flow calculations in favor of the

TCID and against the government and Tribe. Id. We

remanded for recalculation because there was no evidentiary

basis for that choice. It is this so-called “gauge error” ruling

that we now must consider in this appeal from the district

court’s judgment on remand.

A brief explanation is in order. Earlier in the Bell

opinion, in addressing the primary issues in that appeal, we

affirmed the district court’s order of recoupment for excess

diversions by the TCID for the years 1974, 1975, 1978, and

UNITED STATES V . BOARD OF DIRECTORS 13

1979. Id. The district court had rejected claims of excess

diversions in the other years between 1973 and 1988. In our

concluding paragraph, we remanded for recalculation of the

effect of gauge error in the four specific years in which the

district court had found excess diversions. Id. at 1087. On

remand, the government asked the court to recalculate gauge

error for those and additional years, but the district court

limited its recalculation to the four years specified in the

conclusion of the Bell opinion.

It now appears that our understanding of the scope of the

gauge error claim was mistaken and that the government was

claiming the gauge error calculation had affected the flow

measurement in other years as well. The government’s

contention has been that if the district court had not initially

calculated the amounts of water diverted by using the low end

of the margin of error, it may have found that there were

excess diversions in other years. The expert whose report the

government presented on remand found that if the calculation

of flow had been made without regard to the flawed gauge

error determination, TCID’s diversions would have exceeded

applicable limits not only in 1974, 1975, 1978, and 1979, but

also in four additional years—1973, 1976, 1983, and 1986.

We therefore should not have limited recalculation to the four

years in which the district court initially found excess

diversions. Rather, we should have ordered recalculation of

the gauge error’s impact in all the years potentially affected.

Our mistake in not ordering a broader remand is

understandable, for the parties made only passing references

in the briefs and in oral argument to the larger scope of the

gauge error issue, and the government did not move for

rehearing of our prior opinion to correct the mistake.

Nevertheless, a mistake there was. Indeed, in the body of our

14 UNITED STATES V . BOARD OF DIRECTORS

opinion, we suggested that the nature of the gauge error is one

that could permeate the analysis for all of the years at issue in

the appeal. Id. at 1085. Not limiting our analysis to specific

years, we there said that we were remanding “for the district

court to recalculate the amount of the diversions based on the

government’s published quantities and without regard to the

confidence intervals.” Id. We did not purport to limit the

recalculation to specific years. Id.

We do not ordinarily disturb a judgment of the court after

the mandate has issued. See Calderon v. Thompson, 523 U.S.

538, 550 (1998) (noting the “profound interests in repose”

that attach to the mandate of a court of appeals). The

government has candidly acknowledged that it should have

moved for reconsideration of our prior opinion, but that it did

not recognize the mistake until the matter was before the

district court on remand. In light of the larger issues

presented in the earlier appeal that focused on the remedy for

the four specific years of excess diversions, it was easy

enough for us to assume that the gauge error was relevant

only to those years as well. Correction of the mandate after

it has issued is an extraordinary remedy that is not often

utilized. See id. at 549–50 (holding that while appellate

courts have the right to recall their own mandates, that power

can only be exercised in “extraordinary circumstances” and

is “one of last resort, to be held in reserve against grave,

unforeseen contingencies”).

But this is not ordinary litigation. The government

throughout several decades has been acting in a fiduciary

capacity on behalf of the Tribe, and the government has a

fiduciary duty to undertake all reasonable means to assure

that the waters that should flow to Pyramid Lake do so

pursuant to the controlling operating criteria and procedures

UNITED STATES V . BOARD OF DIRECTORS 15

(“OCAPs”). See Tribe v. Morton, 354 F. Supp. at 256. The

history of those standards have been well documented in prior

opinions, and we do not repeat it here. See Bell, 602 F.3d at

1078; Tribe v. Morton, 354 F. Supp. at 256; TCID v.

Secretary, 742 F.2d at 529–30. The OCAPs indisputably

stated the measure of how much water should have been

diverted, and the TCID’s diversions indisputably exceeded

these limits. Correcting the gauge error calculation therefore

serves to ensure that the Lake receives the water it needs to

sustain itself and the endangered species within it. This was

the focus and purpose of the limitations on diversions for

irrigation since their inception. Tribe v. Morton, 354 F. Supp.

at 254–55. If the mistake is not corrected, then the immediate

beneficiary will be the TCID, which is at fault for the excess

diversions, and the ultimate loser will be the Lake, which the

OCAPs are supposed to protect. The equities thus strongly

favor our fashioning a remedy to restore the proper balance

between the TCID/agricultural and Tribal/environmental

interests. See Graham v. Balcor Co., 241 F.3d 1246, 1248

(9th Cir. 2001) (per curiam) (holding that clarification of

previous mandate is appropriate when there is “good cause”

and to “prevent injustice”).

We cannot fault the district court in any way, for it

correctly followed our 2010 mandate. It was the mandate that

was in error, and that only we can correct. See Planned

Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life

Activists, 518 F.3d 1013, 1022 (9th Cir. 2008) (holding that

we may amend our mandate when it was erroneous even

though a party should have brought the mistake to our

attention). Only by withdrawing and correcting the mandate

can we order the district court to recalculate the effect of

gauge error, not only for the years 1974, 1975, 1978, and

16 UNITED STATES V . BOARD OF DIRECTORS

1979, but for the years 1973, 1976, 1985, and 1986 as well,

to determine the amount of any excess diversions.

We accordingly withdraw our earlier mandate and clarify

it by changing the final paragraph of our previous opinion to

read:

For the foregoing reasons, the judgment of the

district court with respect to prejudgment and

postjudgment interest is vacated and

remanded for further consideration. The

judgment with respect to amounts of

recoupment for excess diversions in 1974,

1975, 1978, 1979, and spills in 1979 and

1980, as well as the denial of recoupment for

excess diversions in the years 1973, 1976,

1985, and 1986, is vacated and remanded for

recalculation of the effect of gauge error. The

judgment with respect to spills from 1981–84

is vacated and remanded for a determination

of the amount of water spilled during those

years. The judgment of the district court is

otherwise affirmed.

With regard to 1985 and 1986, there may be merit to

TCID’s contention that there is an alternative ground in the

record for the district court’s finding that recoupment was

unavailable or limited for those years, namely, deviation from

the OCAP authorized by court order. We leave to the district

court to determine whether, and to what extent, this

consideration affects the recoupment available for 1985 and

1986 once the gauge error is taken out of the equation.

UNITED STATES V . BOARD OF DIRECTORS 17

We also have before us appeals by Churchill County and

the State of Nevada from the district court’s judgment on

remand. This judgment, however, did not alter the

obligations of either the County or the State pursuant to the

2005 judgment. They were not injured or affected in any way

by the judgment on remand from Bell, and thus do not have

standing on this appeal. See Knisley v. Network Assocs., Inc.,

312 F.3d 1123, 1126 (9th Cir. 2002).

CONCLUSION

Although we take the rare step of correcting a prior

mandate, the parties should not take from this opinion any

signal that decisions involving water diversions from the

Truckee and Carson have any less finality than decisions in

other cases. The rules of procedure and the purposes of res

judicata apply no differently here than in other cases.

Moreover, the function of judicial oversight in this and

related litigation has been to maintain the balance between

the competing interests of the reclamation system and the

interests of the Tribe and the environment. Nothing would do

more harm to the goal of sustaining that balance than

systemic uncertainty in the obligations of the parties. Our

decision today should be read in that light.

The appeals from Churchill County and the State of

Nevada are DISMISSED. Our previous mandate in Bell is

withdrawn and amended as provided in this opinion. The

judgment of the district court on remand is VACATED. The

matter is REMANDED for proceedings in accordance with

the Bell mandate as amended.