United States v. US Board of Water Comm'r

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-16316

Plaintiff,

D.C. No.

WALKER RIVER PAIUTE TRIBE, 3:73-cv-00125-

Intervenor-Plaintiff, RCJ-WGC

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

2 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

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.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 3

UNITED STATES OF AMERICA, No. 15-16317

Plaintiff,

D.C. No.

WALKER RIVER PAIUTE TRIBE, 3:73-cv-00125-

Intervenor-Plaintiff, RCJ-WGC

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;

4 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

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.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 5

UNITED STATES OF AMERICA, No. 15-16319

Plaintiff,

WALKER RIVER PAIUTE TRIBE, D.C. No.

Intervenor-Plaintiff, 3:73-cv-00125-

RCJ-WGC

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,

6 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

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.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 7

UNITED STATES OF AMERICA, No. 15-16321

Plaintiff,

WALKER RIVER PAIUTE TRIBE, D.C. No.

Intervenor-Plaintiff, 3:73-cv-00125-

RCJ-WGC

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,

8 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

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.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 9

UNITED STATES OF AMERICA, No. 15-16323

Plaintiff,

WALKER RIVER PAIUTE TRIBE, D.C. No.

Intervenor-Plaintiff, 3:73-cv-00125-

RCJ-WGC

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;

10 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

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.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 11

UNITED STATES OF AMERICA, No. 15-16489

Plaintiff,

D.C. No.

NATIONAL FISH AND WILDLIFE 3:73-cv-00125-

FOUNDATION, RCJ-WGC

Petitioner,

MINERAL COUNTY, ORDER AND

Intervenor-Plaintiff, AMENDED

OPINION

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;

12 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

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.

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted August 30, 2017

Pasadena, California

Filed May 22, 2018

Amended June 22, 2018

Before: A. Wallace Tashima, Raymond C. Fisher,

and Jay S. Bybee, Circuit Judges.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 13

Order;

Opinion by Judge Bybee

SUMMARY*

Water Rights

The panel reversed the district court’s judgment and

remanded in an action brought by farmers who alleged injury

to their water rights arising from state agency approval of

modifications to a water rights leasing program in the Walker

River Basin.

The Nevada district court has maintained in rem

jurisdiction over the waters of Walker River in accordance

with the Walker River Decree of 1936, which governs the

water rights in the Walker River Basin. In 2009, Congress

established the Walker Basin Restoration Program, which

allocated funding to be administered by the National Fish and

Wildlife Foundation to acquire water and water rights for the

purpose of restoring and maintaining Walker Lake, the

terminus of the Walker River. Under the program, the

Foundation leases or purchases flow and storage rights from

willing sellers, and uses those rights to convey water

downstream to feed the Lake.

The Foundation and the Walker River Irrigation District

both submitted applications seeking modifications to their

decreed water rights. The Foundation requested changes to

*

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

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

14 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

the place of use where water was diverted, and changes to the

purpose of use from irrigation to wildlife purposes. The

Nevada State Engineer approved the Foundation’s

application, finding that no party would suffer injury from the

changes because the Foundation agreed to limit its in-stream

water use to the historic consumptive use portion of its

decreed water rights, the amount actually used and consumed

by agriculture, and to dedicate to the non-consumptive

portion to mitigate hydrological system loss.

The California State Water Control Board approved the

separate application of the Irrigation District to temporarily

change its decreed water storage rights, finding that the

farmers who objected to the proposed changes failed to

demonstrate any right to the stored water that would be

injured. The district court rejected the state agency rulings,

refused to grant the change applications, and remanded to the

state agencies after finding that the proposed modifications

would injure the water rights of farmers.

The panel held that (1) it had jurisdiction over the action

because the district court’s remand order was sufficiently

final, (2) state law applied, (3) it would review the district

court’s decision de novo, and (4) the district court was

required to afford the same level of deference to the state

agencies as the state courts would.

The panel held that the district court failed to defer to the

findings and conclusions of the state agencies. The panel

considered the record before the Nevada State Engineer, and

concluded that the Engineer properly found that a transfer to

the Foundation limited to the consumption portion would

avoid conflict and injury to other existing water rights. The

panel held that the findings were supported by substantial

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 15

evidence and that the Engineer applied the correct legal rule.

The panel held that to the extent the district court made its

own findings of fact, those findings were clearly erroneous.

The panel further held that the California State Water Control

Board’s finding that the changes proposed by the Irrigation

District “would not injure any legal use of the water” was

consistent with the Walker River Decree of 1936 and in

accord with California law.

The panel held that Walker Lake is part of the Walker

River Basin. Consequently, the panel held that dedicating

water from the Walker River to Walker Lake did not violate

the Decree’s prohibition on delivering water outside of the

basin of the Walker River. The panel reversed the district

court’s judgment, vacated the district court’s opinion and

remanded for approval of the change applications.

COUNSEL

Don Springmeyer (argued) and Christopher Mixson, Wolf

Rifkin Shapiro Schulman & Rabkin LLP, Las Vegas, Nevada;

Jamie Morin, Mentor Law Group PLLC, Seattle, Washington;

for Petitioner-Appellant National Fish and Wildlife

Foundation.

Micheline Noel Nadeau Fairbank (argued) and Bryan L.

Stockton, Senior Deputy Attorneys General; Adam Paul

Laxalt, Attorney General; Office of the Attorney General,

Carson City, Nevada; for Respondent-Appellant State of

Nevada.

16 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

Gordon DePaoli (argued) and Dale E. Ferguson, Woodburn

and Wedge, Reno, Nevada, for Defendant-Appellant Walker

River Irrigation District.

Simeon Herskovits (argued), Advocates for Community &

Environment, El Prado, New Mexico; Sean A. Rowe, Mineral

County District Attorney, Hawthorne, Nevada; for Plaintiff-

Intervenor-Plaintiff-Appellant Mineral County and

Defendant-Appellant Walker Lake Working Group.

Wes Williams Jr., Law Offices of Wes Williams Jr. P.C.,

Schurz, Nevada, for Intervenor-Plaintiff-Appellant Walker

River Paiute Tribe.

Karen A. Peterson (argued), Justin M. Townsend, Kyle A.

Winter, and Willis M. Wagner, Allison MacKenzie Ltd.,

Carson City, Nevada, for Participant-Appellee United States

Board of Water Commissioners.

Elizabeth Ann Peterson, David L. Negri, Andrew “Guss”

Guarino, Katherine J. Barton, David C. Shilton, and William

B. Lazarus, Attorneys; John C. Cruden, Assistant Attorney

General; United States Department of Justice, Washington,

D.C.; for Amicus Curiae United States of America.

Jan Zabriskie, Deputy Attorney General; Annadel A.

Almendras and Tracy L. Winsor, Supervising Deputy

Attorneys General; Robert W. Byrne, Senior Assistant

Attorney General; Office of the Attorney General,

Sacramento, California; for Amicus Curiae California State

Water Resources Control Board.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 17

ORDER

Amicus the California State Water Resources Control

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 1146, footnote 11, replace “The

California Control Board only has authority over water rights

established after 1914, when the Board was created. See Nat.

Res. Def. Council v. Kempthorne, 621 F. Supp. 2d 954, 963

(E.D. Cal. 2009).” with “The California Control Board has

permitting and licensing authority only over water rights

established after 1914, when the Board was created. Cal.

Farm Bureau Fed’n v. State Water Res. Control Bd., 247 P.3d

112, 117–18 (Cal. 2011). In some circumstances the

California Control Board may approve a petition for change

in point of diversion, place of use, or purpose of use under

riparian or pre-1914 appropriative rights. See, e.g., id. at

117–20; CAL. WATER CODE § 1707.”

2. At 890 F.3d 1152, replace “over which the Board

lacks statutory authority” with “over which the Board lacks

permitting and licensing authority.”

18 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

OPINION

BYBEE, Circuit Judge:

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

1

NEVADA: A GUIDE TO THE SILVER STATE 218 (Nev. State Historical

Soc’y, Inc. 1940).

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 19

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.

I. FACTS AND PROCEDURAL HISTORY

A. The River and the Lake

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

20 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

(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

2

NEVADA: A GUIDE TO THE SILVER STATE 218 (Nev. State Historical

Soc’y, Inc. 1940) (“In the steadfast intensity of its color and the beauty of

its setting Walker Lake is one of the most impressive lakes in the West.

As deeply and opaquely blue as the Mediterranean, under bright sunlight

it looks like a field of heavy liquid of unfathomable depth. . . . The lake,

impressive in its wild setting, has been the subject of numerous tall tales

and people are occasionally met who swear that they have glimpsed the

fabulous monster supposed to live in its blue depths.”).

3

In March 1885, a local publication “reported that Walker Lake was

so crowded with Lahontan cutthroat trout that during the middle of the day

long rows of the fish could be seen lying at the water’s edge on the sand

sunning themselves.” Gary A. Horton, WALKER RIVER CHRONOLOGY II-

12–13 (1996) (quoting the Walker Lake Bulletin), available at

http://images.water.nv.gov/images/publications/River%20Chronologies

/Walker%20River%20Chronology.pdf; see also Saxon E. Sharpe, et al.,

Desert Research Institute, Pub. No. 41231, THE WALKER BASIN, NEVADA

AND CALIFORNIA: PHYSICAL ENVIRONMENT, HYDROLOGY AND BIOLOGY

27–32 (2008) (“DRI Report”).

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 21

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 other Lake residents have

4

NEVADA: A GUIDE TO THE SILVER STATE 24 (Nev. State Hist. Soc.,

Inc. 1940).

5

DRI Report at 7; Michael W. Collopy & James M. Thomas, Desert

Research Institute, RESTORATION OF A DESERT LAKE IN AN

AGRICULTURALLY DOMINATED WATERSHED: THE WALKER LAKE BASIN

ii–vii (2016), http://greatbasinresearch.com/walker/downloads/2016-

Walker-Report-without-appendices.pdf.

6

Erik Borgen, et al., Desert Research Institute, Ecosystem

Economics, Desert Research Institute, A SIMULATION MODEL FOR

EVALUATING WATER ACQUISITIONS TO REDUCE TOTAL DISSOLVED

SOLIDS IN WALKER LAKE 6 (2014), http://goo.gl/CWgQRg (indicating

TDS levels of 21,800 mg/L in Walker Lake in January 2014).

22 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

vanished. With the death of its aquatic life, migratory birds

have begun to abandon the Lake. Even the midges, side

swimmers, and damselflies have disappeared from the Lake

on a search for a more hospitable habitat.7 A scum now lines

the Lake’s receding shores.

B. The Decree and River Administration

The action before us was filed in 1924, but traces its

history even further back, to 1902, when two cattle kings

realized that the Walker River Basin wasn’t big enough for

the two of them. Miller & Lux, the sprawling ranching

enterprise owned by Henry Miller, the “Cattle King of

California,” filed a quiet title action in Nevada district court

against 150 defendants, including arch-rival Rickey Land &

Cattle Co. owned by Thomas Rickey, the “Cattle King of the

West.” Miller & Lux sought a declaration of appropriative

water rights to a flow of 943.29 cubic-feet per second (cfs) of

the Walker River for use on its Nevada lands. Miller & Lux

v. Rickey, 127 F. 573, 575–76 (C.C.D. Nev. 1902). Rickey in

turn sued Miller in California state court, seeking his own

appropriative rights to a flow of 2,079 cfs for use on his

California lands. For years the parties disputed the Nevada

district court’s jurisdiction over California water rights,

pleading deficiencies, and application of the now-extinct local

action doctrine.

The Nevada district court granted an antisuit injunction in

Miller’s favor, and we affirmed. Rickey Land & Cattle Co.

v. Miller & Lux, 152 F. 11, 22 (9th Cir. 1907). Because any

given usufructory right to a flow has an inherent connection

7

U.S. Fish & Wildlife Service, Walker Lake Ecosystem: Research

and Monitoring Summary Report 2006–2013 (2013).

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 23

to all other such rights in the same stream, appropriative

rights are conclusively established only by reference to all

other competing rights. We held that this naturally requires

exclusive jurisdiction over the entire res of the Walker River.

Id. at 14–19. The Supreme Court agreed. Rickey Land &

Cattle Co. v. Miller & Lux, 218 U.S. 258 (1910) (Holmes, J.).

After a decade of factfinding and hearings, the district court

issued a final decree settling the rights to the River. Pac.

Livestock Co. v. Thomas Rickey, In Equity No. 731, Final

Decree (D. Nev. 1919) (“the Rickey Decree”). Under the

Rickey Decree, the district court retained ancillary

jurisdiction to resolve future disputes over rights to Walker

River.

The Walker River Irrigation District (“WRID”) was

established in 1919. It built two reservoirs in 1919 and 1921:

Topaz on the West Walker River, and Bridgeport on the East

Walker River.8 In 1924 the United States filed an action—In

Equity No. C-125—to quiet title to water rights to the Walker

River as trustee for the Tribe. After another decade of service

of process, the appointment of two Special Masters,

factfinding, and hearings, the court issued a final Decree on

April 14, 1936, amended in 1940 in ways not relevant here.

Article I of the Decree recognizes the implied reserved

rights of the United States as trustee to the Tribe. See Winters

v. United States, 207 U.S. 564, 576–78 (1908). Article II

recognizes in their entirety the rights established in the 1919

Rickey Decree. Articles III–VII and IX provide for the flow

and storage rights of new private parties. Article VIII

recognizes WRID’s storage rights in the Topaz and

8

See NEV. REV. STAT. 539.013(2); James H. Davenport, NEVADA

WATER LAW 34 (2009).

24 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

Bridgeport reservoirs with respective priority dates of 1919

and 1921, and the attendant authority to distribute the water

stored there. Article X permits rightsholders to change the

manner, means, place or purpose of use, or the point of

diversion in the manner provided by law “so far as they may

do so without injury to the rights of other parties hereto, as

the same are fixed hereby.” Articles XI–XII provide that no

party may relitigate a claim to water rights in the Walker

River Basin, in the Nevada District Court or any other court,

that was litigated in the original case as of April 14, 1936.

Article XIII permits rightsholders to rotate their use of water,

i.e., collectively or individually rotate water usage for

improved efficiency, so long as no other rights are thereby

injured. Article XIV establishes the district court’s continued

jurisdiction “for the purpose of changing the duty of water or

for correcting or modifying this decree; also for regulatory

purposes, including a change of the place of use of any water

user,” but stipulates that “no water shall be sold or delivered

outside of the basin of the Walker River . . . .” Article XV

permits the Decree court to designate a water master, which

it did in 1937 by creating the U.S. Board of Water

Commissioners (“the Water Commissioners”)—a six-

member board overseen by a Water Master who apportions

and distributes the River’s waters. Finally, Article XVI sets

the irrigation season, which is today set at March 1 to October

31. By establishing its continued jurisdiction over the action

and the river, the district court became the “Decree court.”

C. The Walker Basin Restoration Program

In 2002, Congress began to allocate funds for desert

terminal lake conservation. In 2009, it established the Walker

Basin Restoration Program “for the primary purpose of

restoring and maintaining Walker Lake.” Pub. L. No. 111-

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 25

85, §§ 207–08, 123 Stat. 2845, 2858–60 (2009); 16 U.S.C.

§ 3839bb-6. The Program is designed as a voluntary water

rights acquisition, trading, and leasing scheme to be jointly

administered by NFWF and WRID. Under the program,

NFWF leases or purchases flow and storage rights from

willing sellers, and uses those rights to convey water

downstream to feed the Lake. NFWF negotiated the program

details with the Tribe and WRID. WRID thereafter adopted

a regulation permitting rightsholders along the River to

participate in the program by leasing their claims for in-

stream use.

NFWF purchased a number of claims with priority dates

from 1874 to 1906, which cumulatively provide for

7.745 cfs.9 In an effort to avoid injury to other rightsholders,

NFWF entered into stipulations with WRID, Lyon County,

the Tribe, the U.S. Department of the Interior Bureau of

Indian Affairs, and several private rightsholders. Per these

stipulations, NFWF agreed that program water would be

limited to the consumptive use portion of its decreed claims:

4.122 cfs out of 7.745 cfs.

The consumptive use portion of a water right reflects the

amount of water that is actually used and consumed by

agriculture. When an upstream user appropriates water for

irrigation, some portion of the water—the non-consumptive

use portion—is not consumed by the crop and returns as

runoff to the river, and for another rightsholder’s use

downstream. For example, if Farmer A calls for a constant

flow of 10 cfs, some variable non-consumptive portion

returns to the river, say 4 cfs; the difference (6 cfs) is Farmer

9

These claims are identified as Decree Claims No. 23, 23-A, 35, 44,

67, and 89.

26 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

A’s consumptive use portion. The 4 cfs that returns to the

river is then available for Farmer B’s use. Effectively,

Farmer A has the right to call for 10 cfs, but is consuming

only 6 cfs. The consumptive and non-consumptive use

portions of any given water right will vary depending on crop

type, volume of irrigation water, and environmental factors.

In this example, if Farmer A seeks to change the claim’s use

by removing the entirety of the 10 cfs from the river, Farmer

B’s right is injured through deprivation of the non-

consumptive 4 cfs runoff. Determining whether a change to

Farmer A’s use will injure Farmer B’s right thus requires

determining how the change will affect the disposition of the

non-consumptive portion of Farmer A’s water right.

Here, NFWF acquired the rights to call for 7.745 cfs.

NFWF’s hydrologists calculated a historic consumptive use

portion at a flow rate of 4.122 cfs. The difference, 3.623 cfs,

is the river runoff that was historically available to

downstream rightsholders. So as not to injure these

downstream claims, NFWF stipulated that it would call for

program water only in the flow amount of 4.122 cfs over the

course of the irrigation season, that is, approximately

53 percent of its total appropriative rights to 7.745 cfs.

NFWF further stipulated that the non-consumptive use

portion of its claims—a flow of 3.623 cfs—would be

administered by the Water Commissioners “in [their]

discretion . . . to avoid conflict with and injury to existing

water rights . . . and to mitigate hydrologic system losses.”

D. State Agency Rulings

Under Article X of the Decree, as well as the 1953 Rules

and Regulations and the 1996 Administrative Rules and

Regulations, both of which were approved by the Decree

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 27

court, change applications—meaning any proposed changes

in purpose or place of use—must first be presented to the

state agencies for their approval.10 Applicants with Nevada

water rights submit applications with the Nevada State

Engineer, and applicants with California water rights submit

applications to the California State Water Resources Control

Board (“the California Control Board”).11

1. The Nevada Ruling

In 2011, NFWF applied with the Nevada State Engineer

for approval of two changes to its claims to a cumulative

7.745 cfs. First, NFWF requested changing the place of use

to “within the Walker River from the Weir Diversion

Structure through the USGS Wabuska Gauge, then through

Weber Reservoir into and including Walker Lake.” The

previous rightsholders had diverted the flow from the Weir

Diversion Structure into the West Hyland Ditch, downstream

10

See Administrative Rules & Regulations Regarding Change of

Point of Diversion, Manner of Use or Place of Use of Water of the Walker

River and its Tributaries and Regarding Compliance with California Fish

and Game Code Section 5937 and Other Provisions of California Law (as

amended through June 3, 1996) (“1996 Adminstrative Rules &

Regulations”).

11

The California Control Board has permitting and licensing authority

only over water rights established after 1914, when the Board was created.

Cal. Farm Bureau Fed’n v. State Water Res. Control Bd., 247 P.3d 112,

117–18 (Cal. 2011). In some circumstances the California Control Board

may approve a petition for change in point of diversion, place of use, or

purpose of use under riparian or pre-1914 appropriative rights. See, e.g.,

id. at 117–20; CAL. WATER CODE § 1707. In 1990, the Decree court

appointed the Board as a Special Master, thus authorizing the Board to

make findings and recommendations as to pre-1914 claims. See Fed. R.

Civ. P. 53(b).

28 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

from Yerington. Second, NFWF requested changing the

purpose of use from irrigation to wildlife purposes. See NEV.

REV. STAT. § 533.023. Effectively, NFWF sought approval

not to remove the water obtained through exercise of its water

rights, so that water acquired from prior rightsholders may

flow, as it naturally would, into Walker Lake. Appropriative

rights in Nevada may be applied for a beneficial use in-

stream, regardless of whether the water flows to areas not

owned by the rightsholder. NEV. REV. STAT. § 533.040(2);

State Bd. of Agric. v. Morros, 104 Nev. 706, 766 (1988).

The Water Commissioners and a group of private parties

(“the Farmers”) objected to both change applications. The

objecting Farmers hold so-called New Land Stored Water

Rights. That is, they operate farms on acres lacking

associated decreed claims, and instead have contractual

arrangements with WRID. They pay assessments to WRID,

which provides them with surplus reservoir water from Topaz

and Bridgeport. In other words, these are nondecreed rights

to reservoir water, not appropriative flow or storage rights.

The Water Commissioners and Farmers pressed two

arguments. First, they argued that the changes would

impermissibly injure their New Land Stored Water Rights.

NFWF expects to call continuously for water during the

irrigation season when in priority, whereas the farmers who

previously owned the claims would on certain days

occasionally not call for water, such as on harvesting days,

which permitted the flow claims to be redirected by the Water

Master for reservoir storage. As such, the Farmers argued

that a continuous call would impermissibly injure their rights,

because it would ultimately decrease the amount of reservoir

water later available to meet their irrigation needs. Second,

they argued that Walker Lake lies outside of the Walker River

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 29

Basin. Thus, directing water to the Lake would violate

Article XIV of the Decree: “[N]o water shall be sold or

delivered outside of the basin of the Walker River.”

The Nevada State Engineer, following public hearings,

rejected both arguments and granted NFWF’s application.

With respect to the question of injury, the Nevada State

Engineer found that under NFWF’s consumptive use

stipulation, no party would suffer injury. The State Engineer

considered NFWF in the position of “an irrigator who has a

decreed right to call for water on March 1st for the duration

of the irrigation season,” and “as the holder of claims senior

in priority to new lands storage rights, [NFWF] has the right

to seek a change in the manner and place of use.” The State

Engineer rejected any possibility that injury could occur

under NFWF’s stipulations, because it had dedicated the non-

consumptive portion of its decreed rights to the Water

Commissioners to remedy any injury or hydrological

efficiency loss caused by a continuous call of the

consumptive use portion of its decreed appropriative rights.

The State Engineer’s ruling adopted and incorporated the

consumptive use stipulations in their entirety. Finally, the

Engineer concluded that “Walker Lake is included in the

Walker River basin.”

2. The California Ruling

Likewise, WRID applied to the California Control Board

to temporarily change the place and purpose of use of its

decreed storage rights for Topaz and Bridgeport. This change

would allow WRID to distribute 25,000 acre-feet of stored

water per season to Walker Lake to meet the in-stream water

calls made by rightsholders within WRID who participate in

the program. The temporary changes were intended to give

30 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

WRID the time and flexibility to run the program for a trial

season while preparing its application for permanent changes.

The California Control Board reviewed WRID’s

temporary one-year change application under California

Water Code § 1727. As relevant here, a party applying for a

temporary change must show that:

[t]he proposed temporary change would not

injure any legal user of the water, during any

potential hydrologic condition that the board

determines is likely to occur during the

proposed change, through significant changes

in water quantity, water quality, timing of

diversion or use, consumptive use of the

water, or reduction in return flows.

CAL. WATER CODE § 1727(b). See also CAL. WATER CODE

§1707(b)(2) (changes may not “unreasonably affect any legal

user of water”).

The California Control Board overruled the objections of

the Water Commissioners and the Farmers. It found that

WRID had carried its burden because “petitioners do not

request any changes in the diversion of water to storage;

instead they only request changes in the place and purpose of

use upon release from storage.” By contrast, the Water

Commissioners and Farmers had failed to demonstrate “any

right, under contract or otherwise, to the stored water that will

be injured by the proposed temporary change.” As the

California Control Board explained, under California law,

changes to the purpose or place for which WRID releases

reservoir water under its control cannot give rise to an injury,

because WRID—not the Farmers—holds the statutory and

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 31

decreed right to distribute this water to legal appropriative

users. See Stevens v. Oakdale Irrigation Dist., 90 P.2d 58,

60–61 (Cal. 1939) (noting that a downstream user has no

right to a continued release of artificial flow). Accordingly,

the California Control Board concluded:

It is not enough for a water user to show that

it will receive less water as a result of the

change. Instead, a water user claiming injury

must demonstrate that it has a right to the

greater amount of water claimed and that the

proposed change will interfere with that

right. . . . None of the commenters have

demonstrated any right, under contract or

otherwise, to the stored water that will be

injured by the proposed temporary change.

Like the Nevada State Engineer, the California Control Board

rejected the argument that Walker Lake is not part of the

Walker River Basin, noting that the Lake sits within the same

hydrological drainage basin as the River.

On motion for reconsideration, the California Control

Board affirmed its decision with an amendment noting that “a

stored water transfer . . . is not limited to the consumptive use

portion of the water right,” because “a downstream water user

who does not have a right to stored water cannot be injured

by changes in releases of the stored water.” See CAL. WATER

CODE § 1725 (permitting transfers of amounts that have been

“consumptively used or stored”).

32 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

E. Decree Court Ruling

The Decree court rejected the Nevada State Engineer’s

and California Control Board’s rulings, refused to grant the

change applications, and remanded to the state agencies.

First, the court found that the stipulated program water

quantity would injure New Land Stored Water Rights,

because NFWF would not mimic the historical consumptive

use watering patterns of prior users who had occasionally

suspended calls for water on harvesting days. The court

reasoned that even if NFWF was

limited to the historical use amount at any

given time, it is likely to call for that amount

on every day during the irrigation season,

whereas its predecessors-in-interest did not in

practice call for water during harvests and

certain other periods, so the overall effect of

the change will likely be to reduce the amount

of water available for storage.

The Decree court found that, although NFWF had

properly limited program water to the consumptive use

portion of its flow on a per second basis, NFWF would

continuously call for its claims to be serviced, and thus would

consume more water per season as compared to its

predecessors-in-interest. The court explained:

A limit on the rate of consumption per second

during days of use does not suffice to satisfy

the no injury rule if the total amount of

consumption per year is nevertheless

increased. Where NFWF will in practice

consume water at the same rate as its

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 33

predecessors-in-interest but on more days

throughout the year, its greater number of

days of consumption per year could result in

increased consumption per year (and therefore

less available storage water available for

junior users). . . . [T]he no injury rule

prohibits NFWF from consuming more water

per second or per year than its predecessors-

in-interest.

The court remanded to the Nevada State Engineer to

determine the average number of days per year that each of

NFWF’s predecessors-in-interest historically called on their

respective claims and to limit approval of the change

application accordingly.

As to the California Control Board’s ruling concerning

changes to WRID’s storage rights, the Decree court found

that changes to such rights must also be limited to the

consumptive use portion of the rights. In this regard, the

court held that the Farmers’ rights are injured where a change

application effectively reduces the amount of stored water

available to the users of those stored water rights. The

California Control Board had determined that because the

amount of storage water in the change would be limited to

water that would have otherwise been consumed or stored by

WRID, no injury would occur. The Decree court rejected this

finding, and remanded for the same historical consumptive

use calculations it had required with regard to the Nevada

State Engineer’s ruling. Specifically, the Decree court set out

a four-part procedure requiring the California Control Board

to: (1) identify each separate “piece” of program water

temporarily sold to WRID; (2) multiply those pieces by the

respective portions of those pieces historically attributable to

34 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

consumptive use; (3) calculate the sum of the consumptive

use pieces; and (4) limit the change applications accordingly.

The Decree court also rejected both the Nevada and

California change applications on the grounds that in-stream

delivery of program water to Walker Lake would violate the

Decree’s export restriction, which prohibits delivering water

“outside of the basin of the Walker River.” The court found

that the “basin” comprises only agricultural lands and waters

named in the Decree. The court concluded, however, that

despite this, NFWF could still effectively send water to the

Lake by simply sending it to the most terminal point of the

River.

These appeals followed. Appellants are NFWF, WRID,

the Nevada State Engineer, the Nevada Department of

Wildlife, Mineral County, and the Walker Lake Working

Group. Appellees are the Water Commissioners and the

Farmers. The United States and the California Control Board

appear as amici.

II. JURISDICTION, CHOICE OF LAW, AND

STANDARD OF REVIEW

A. Jurisdiction

The Water Commissioners argue that, because the Decree

court merely remanded the change applications, did not fully

adjudicate the issues, and did not intend that its order be its

final act in the matter, we lack jurisdiction under 28 U.S.C.

§ 1291. Remand orders do not generally constitute

appealable “final decisions” under 28 U.S.C. § 1291. Alsea

Valley All. v. Dep’t of Commerce, 358 F.3d 1181, 1184 (9th

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 35

Cir. 2004); see also Dig. Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 867 (1994).

But a remand order may be considered final where

“(1) the district court conclusively resolves a separable legal

issue, (2) the remand order forces the agency to apply a

potentially erroneous rule which may result in a wasted

proceeding, and (3) review would, as a practical matter, be

foreclosed if an immediate appeal were unavailable.”

Collord v. U.S. Dep’t of the Interior, 154 F.3d 933, 935 (9th

Cir. 1998). These are not “strict prerequisites,” but merely

“considerations.” Sierra Forest Legacy v. Sherman, 646 F.3d

1161, 1175 (9th Cir. 2011).

As to the first Collord consideration, the district court

resolved both questions at issue here: whether an injury can

accrue on these facts under the Walker River Decree, and

whether Walker Lake is “outside of the basin.” As to the

second Collord consideration, the Nevada State Engineer and

the California Control Board would be compelled to apply the

district court’s injury standard, which could as a practical

matter upset property rights elsewhere in the Walker River

Basin. The State Engineer explains that such a remand would

involve “a wasted proceeding [and] an unnecessary burden to

the State of Nevada’s resources, and force the [ ] Engineer to

apply the district court’s erroneous interpretation of Nevada

water law.” The State Engineer’s concerns are credible: the

remand order calls for a type of historical calculation that

would possibly require developing new methodologies for

measuring consumptive use. The third Collord consideration

is met where the agency is a party to the appeal. Alsea,

358 F.3d at 1184 (9th Cir. 2004). Otherwise, agencies “face

the unique prospect of being deprived of review altogether.”

Id. The third consideration is met here, as the Nevada State

36 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

Engineer appears as a party in these proceedings as

Respondent-Appellant. Although the California Control

Board is not a party to this appeal, it appears here as an

amicus and has fully briefed the issues.

Beyond the Collord test, remand orders are sufficiently

“final” under § 1291, where the relief sought by appellants

cannot possibly be achieved through the district court’s

directions. Sierra Forest, 646 F.3d at 1174. Such

“meaningless remand[s]” are anathema to judicial economy.

Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala, 80 F.3d 379,

384 (9th Cir. 1996). In the absence of appellate review, the

Nevada State Engineer and California Control Board may be

unable to grant any change applications that request

delivering water to Walker Lake, which the district court held

to be outside of the basin.

The remand order is sufficiently final for our review

under 28 U.S.C. § 1291.

B. Choice of Law

The Water Commissioners ask us to apply federal water

law. But there is no federal water law. Fundamental

principles of federalism vest control of water rights in the

states. See California v. United States, 438 U.S. 645, 677–79

(1978); United States v. Alpine Land & Reservoir Co.,

503 F.Supp 877, 885 (D. Nev. 1980). Decreed rights are

administered under applicable state law. See United States v.

Walker River Irrigation Dist., 11 F.Supp. 158, 165–68 (D.

Nev. 1935) (“The rights of the government, in its use of the

waters of the Walker river and its tributaries for purposes of

irrigation, like the rights of all other diverters in the Walker

River basin, are to be adjudged, measured, and administered

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 37

in accordance with the laws of appropriation as established by

the state of Nevada.”); see also Montana v. Wyoming,

563 U.S. 386, 377 n.5, 378 (2011); California Oregon Power

Co. v. Beaver Portland Cement Co., 295 U.S. 142, 163–64

n.2 (1935); United States v. Alpine Land & Reservoir Co.,

697 F.2d 851, 858 (9th Cir. 1983) (“[S]tate law will control

the distribution of water rights to the extent that there is no

preempting federal directive.”). Under the Decree, change

applications are to be treated “in the manner provided by

law.” The Decree presupposes state law in its entirety as to

both substance and procedure. See United States v. Orr

Water Ditch Co., 914 F.2d 1302, 1307–08 (9th Cir. 1990).

C. Standard of Review

1. Review of the Decree Court

We review the Decree court’s legal conclusions and

interpretations of the Decree de novo. United States v. Orr

Water Ditch Co., 256 F.3d 935, 945 (9th Cir. 2001); Orr

Water Ditch, 914 F.2d at 1307. Our review of mixed

questions of law and fact depends on the nature of the issue.

“A mixed question asks whether ‘the historical facts . . .

satisfy the statutory standard, or to put it another way,

whether the rule of law as applied to the established facts is

or is not violated.’” U.S. Bank Nat’l Ass’n v. Village at

Lakeridge, LLC, 583 U.S. ____ (2018) (slip op., at 7)

(quoting Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19

(1982)). “When an ‘issue falls somewhere between a pristine

legal standard and a simple historical fact,’ the standard of

review often reflects which ‘judicial actor is better

positioned’ to make the decision.” Id., slip op. at 8 (quoting

Miller v. Fenton, 474 U.S. 104, 114 (1985)). In reviewing

change application to water rights, the Decree court’s

38 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

activities are primarily legal—the evidence and facts

underlying the change applications are elicited and marshaled

in proceedings before the respective state agencies. The

Decree court then reviews those agencies’ rulings with at

least some deference to questions of fact and law, as

discussed below. We will review de novo the Decree court’s

review of the state agencies. Where the Decree court has

entered its own findings of fact, we review those for clear

error.

2. Deference to State Agencies

The parties dispute whether and to what degree the

Decree court was required to defer to the state agency

findings and rulings in their adjudication of change

applications. As we have previously explained, the Decree

court applies state water law. When it does so, the Decree

court must afford the same level of deference state courts

would afford the state agencies. See Orr Water Ditch,

914 F.2d at 1307–08.

Under Nevada law, the “decision of the State Engineer is

prima facie correct, and the burden of proof is upon the party

attacking the decision.” NEV. REV. STAT. § 533.450(10); see

State Eng’r v. Morris, 819 P.2d 203, 205 (Nev. 1991)

(“[D]ecisions of the State Engineer are presumed to be

correct upon judicial review.”). With respect to findings of

fact, the Nevada Supreme Court has stated that “neither the

district court nor this court will substitute its judgment for

that of the State Engineer: we will not pass upon the

credibility of the witnesses nor reweigh the evidence, but

limit ourselves to a determination of whether substantial

evidence in the record supports the State Engineer’s

decision.” Id. (citation omitted). As to matters of law, the

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 39

State Engineer’s interpretation of legal questions and Nevada

statutes is “persuasive,” but not controlling. Orr Water Ditch,

256 F.3d at 945; State v. Morros, 766 P.2d 263, 266 (Nev.

1988).

California courts also exercise deferential review and

must consider:

(1) whether the [Board] has proceeded

without, or in excess of jurisdiction;

(2) whether there was a fair trial; and

(3) whether there was any prejudicial abuse of

discretion. Abuse of discretion is established

if the [Board] has not proceeded in the manner

required by law, the order or decision is not

supported by the findings, or the findings are

not supported by the evidence.

CAL. CIV. PROC. CODE § 1094.5(b); see State Water Res.

Control Bd. Cases, 39 Cal. Rptr. 3d 189, 226 (Cal. Ct. App.

2006). A court “review[s] the record to determine whether

the [Board’s] factual findings are supported by substantial

evidence, resolving all evidentiary conflicts and drawing all

legitimate and reasonable inferences in favor of the [Board’s]

decision.” Millview Cty. Water Dist. v. State Water Res.

Control Bd., 177 Cal. Rptr. 3d 735, 746 (Cal. Ct. App. 2014)

(citation omitted). Like Nevada courts, California courts

review the Board’s legal conclusions independently, “giving

deference to the determination of the agency appropriate to

the circumstances of the agency action.” Phelps v. State

Water Res. Control Bd., 68 Cal. Rptr. 3d 350, 360 (Cal. Ct.

App. 2007) (emphasis in original) (citation omitted).

40 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

The Farmers and Water Commissioners argue that

because the Decree court appointed the California Control

Board as Special Master under FED. R. CIV. P. 53(b) in 1990,

the Decree court may review all aspects of the Board’s

rulings de novo and that the Decree court’s 1996

Adminstrative Rules and Regulations so provide. See FED. R.

CIV. P. 53(f)(3)–(4); 1996 Administrative Rules &

Regulations § 7.9; see also id. § 7.10 (“In reviewing any

report of the Water Resources Control Board, the court . . .

shall not be limited by the ‘clearly erroneous’ standard.”). As

we have previously explained, supra note 11, the Decree

court appointed the California Control Board as a Special

Master over pre-1914 appropriative rights, over which the

Board lacks permitting and licensing authority. WRID’s

storage rights did not arise until the construction of the

reservoirs in 1919 and 1921, and thus the California Control

Board had authority to rule on WRID’s change applications.

Here, the Board issued its Order and Modified Order in its

role as state agency and submitted a report to the Decree

court in its role as Special Master. Insofar as the California

Control Board exercised lawful agency authority under

California law in adjudicating change applications to WRID’s

post-1914 water rights, the Decree court should have afforded

the Board the same degree of deference that California courts

do.12

III. ANALYSIS

Appellants claim two errors. First, they argue that

NFWF’s promise to limit its in-stream use to the historic

12

On remand, the Decree court may wish to consider whether the

1996 Administrative Rules and Regulations need to be clarified to

conform to this opinion and to Nevada and California law.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 41

consumptive use portion of its claims precludes any

possibility of injury to other rightsholders. Second, they

argue that the court erred by interpreting the Decree’s export

restriction as a prohibition on delivering water to the Lake.

We address each in turn.

A. Injury

Article X of the Decree states:

Any of the said parties shall be entitled to

change the manner, means, place or purpose

of use or the point of diversion of the said

waters or any thereof in the manner provided

by law, so far as they may do so without

injury to the rights of other parties hereto, as

the same are fixed hereby.

This “no-injury” provision in the Decree recognizes the duty

of each appropriator to manage its water use so as to avoid

injury to other appropriators, including junior appropriators.

The Nevada State Engineer and the California Control Board

both concluded that because NFWF agreed to limit program

water to the consumptive use portion of the claims, there is no

material change in its usage and no other rightsholders will be

injured. The Decree court rejected this conclusion. We

conclude that the Decree court failed to defer to the findings

and conclusions of the state agencies. To the extent the

Decree court entered its own findings, we conclude that those

findings are clear error.

42 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

1. Principles

Almost all states employ one of three water rights

regimes: a regime of riparian rights common in the East, a

regime of rights acquired by prior appropriation common in

the West, or a hybrid system such as in California. While

riparian rights inhere in the land appurtenant to the waterway,

vary in quantity based on flow, remain vested even if unused,

and are subject to reasonable use, appropriative rights are

untethered from land ownership, are acquired and maintained

by active beneficial diversion of water, provide for a fixed

flow of water, and are tiered as senior and junior rights based

on chronological claim priority. As the Supreme Court

explained,

The right to water by prior appropriation

. . . is limited in every case, in quantity and

quality, by the uses for which the

appropriation is made. . . . The appropriation

does not confer such an absolute right to the

body of the water diverted that the owner can

allow it, after its diversion, to run to waste and

prevent others from using it for mining or

other legitimate purposes.

...

What diminution of quantity . . . will

constitute an invasion of the rights of the first

appropriator will depend upon the special

circumstances of each case, considered with

reference to the uses to which the water is

applied.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 43

Atchison v. Peterson, 87 U.S. 507, 514–15 (1874). See also

Colorado v. New Mexico, 459 U.S. 176, 179 n.4 (1982).

In Nevada, as elsewhere, a water right is the “right to

divert water . . . for beneficial use from a natural spring or

stream.” Application of Filippini, 202 P.2d 535, 537 (Nev.

1949). Perfecting and maintaining appropriative water rights

require an act of diversion—or, as here, an act of so-called

non-diversion—and beneficial use of the water. See, e.g.,

Prosole v. Steamboat Canal Co., 140 P. 720, 722 (Nev. 1914)

(superseded by statute on other grounds); Strait v. Brown,

16 Nev. 317, 324 (1881); Lobdell v. Simpson, 2 Nev. 274, 279

(1866); see also Nebraska v. Wyoming, 325 U.S. 589, 614

(1945) (“The water right is acquired by perfecting an

appropriation, i.e., by an actual diversion followed by an

application within a reasonable time of the water to a

beneficial use.”). As with senior and subordinated debt, a

senior appropriative right, i.e., the right with an earlier

priority date, is superior to all junior rights. When there is

insufficient water to fill all claims, the senior right is satisfied

before others. DAVID H. GETCHES, WATER LAW 77–80 (4th

ed. 2009).

The no-injury rule of Article X of the Decree is a

codification of a basic principle of prior appropriation:

[T]he no-injury rule prevents appropriators

from making certain water-right changes that

would harm other appropriators . . . . Because

each new appropriator is entitled to the stream

as it exists when he finds it, the general rule is

that “if a change in these conditions is made

by [a senior] appropriator, which interferes

with the flow of the water to the material

44 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

injury of [the junior appropriator’s] rights, he

may justly complain.”

Montana, 563 U.S. at 378 (alterations in original) (quoting

2 C. Kinney, LAW OF IRRIGATION AND WATER RIGHTS § 803,

at 1404 (2d ed. 1912)); see also Wyoming v. Colorado,

298 U.S. 573, 584 (1936) (“[T]he use of the water may be

changed from the irrigation of one tract to the irrigation of

another, if the change does not injure other appropriators.”).

Alleged injuries are analyzed on a case-by-case basis with a

primary focus on the particular equities at issue. Atchison,

87 U.S. at 514–15.

Nevada has codified its no-injury rule. NEV. REV. STAT.

§ 533.370 (requiring an injury analysis in change application

adjudications to determine whether “the proposed use or

change conflicts with [other] existing water rights” and

prohibiting changes that will “adversely affect the cost of

water for other holders of water rights in the district”). In

determining whether a proposed change application causes

injury,

[t]he State Engineer may consider the

consumptive use of a water right and the

consumptive use of a proposed beneficial use

of water in determining whether a proposed

change in the place of diversion, manner of

use or place of use [causes injury]. The

provisions of this section [m]ust not be

applied by the State Engineer in a manner that

is inconsistent with any applicable federal or

state decree concerning consumptive use.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 45

NEV. REV. STAT. § 533.3703(1). Cf. Pyramid Lake Paiute

Tribe of Indians v. Nev. Dep’t of Wildlife, 724 F.3d 1181,

1185 n.4 (9th Cir. 2013) (“[C]hange in manner of use

applications from use for irrigation to any other use . . . shall

be allowed only for the net consumptive use of the water as

determined by this Decree.”) (quoting Administrative

Provision VII of Alpine Decree).13

California law similarly recognizes the no-injury rule and

takes into account the effect of consumptive use. The

California Control Board “shall approve a temporary change

if it determines that a preponderance of the evidence shows”

that the “proposed temporary change would not injure any

legal user of the water” or “unreasonably affect fish, wildlife,

or other instream beneficial uses.” CAL. WATER CODE

§ 1727(b); see also CAL. WATER CODE § 1726(e) (“[T]he

13

The Orr Ditch decree court’s definition of injury is also consistent

with these principles:

An “injury” to a Decreed water right is not shown

merely by establishing a shortage of water because an

owner of a water right can be shorted water without

violating the Orr Ditch Decree. Similarly, alterations of

historical flows do not, of themselves, establish injury.

Rather, an injury occurs when the owner receives less

water than the amount to which the owner is legally

entitled, which determination requires consideration not

only of the amount of the water duty, but also its

priority, and certain other conditions affecting the river

system.

Orr Water Ditch, 2014 WL 4832052, at *7 (D. Nev. Sept. 30, 2014); see

also United States v. Gila Valley Irrigation Dist., 859 F.3d 789, 801 (9th

Cir. 2017) (“Possible injury should be analyzed by comparing the impact

of a proposed change against a baseline of existing conditions.”) (citation

and quotation omitted).

46 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

proposed change must involve only the amount of water that

would have been consumptively used or stored in the absence

of the temporary change.”). “[I]n determining whether the

petitioned changes to the licenses of the irrigation districts

would cause ‘substantial injury’ to or would ‘unreasonably

affect’ riparian and appropriative users in the [water at

issue],” the California Control Board should focus “on the

effect of those changes on the rights of those users.” State

Water Res. Control Bd. Cases, 39 Cal. Rptr. 3d at 243. “[A]

person who claims injury from a change in the terms of a

permit to appropriate water must show the change will

interfere with his or her right to use the water, whatever the

source of that right may be.” Id. at 293. California law

protects the continuation of a river’s natural flow against a

change in use by another appropriator, but does not assure the

release of stored water, as such water constitutes an artificial

supply and flow. Stevens, 90 P.2d at 60–61; see also State

Water Res. Control Bd. Cases, 39 Cal. Rptr. 3d at 238–46.

As we have previously explained, when water is

withdrawn from a river system for irrigation, some of that

water will return to the system through drainage. The

consumptive use portion of a water right reflects the amount

of water that a farmer’s crops actually consume.14 The rest of

the water, the non-consumptive use portion, drains as runoff

to the river or otherwise remains in the basin’s

hydroecosystem for subsequent use by downstream users.

See Alpine Land & Reservoir Co., 697 F.2d at 857 n.4.

14

The U.S. Geological Survey (USGS) defines consumptive use as

“the part of water withdrawn that is evaporated, transpired, incorporated

into products or crops, consumed by humans or livestock, or otherwise not

available for immediate use.” USGS, WATER USE TERMINOLOGY,

https://water.usgs.gov/watuse/wuglossary.html.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 47

Consumptive use is not a measure of how farmers call for

water, but rather the “quantity of water actually consumed by

crop growth.” Pyramid Lake Paiute Tribe of Indians,

724 F.3d at 1185. When rightsholders change the purpose or

place of use of a water right, they must consider how that

change will affect fellow appropriators. Suddenly drawing

more water from the river for a new and unannounced

purpose can diminish one’s downstream neighbor’s rights to

the runoff. The nonconsumptive portion of an appropriation

must be considered, because a junior rightsholder “is entitled

to the stream as it exists when he finds it.” Montana,

563 U.S. at 378 (quoting 2 KINNEY § 803, at 1404); see

GETCHES, WATER LAW at 178.

2. Application

When NFWF acquired decreed appropriative rights with

priorities from 1874 to 1906, it acquired the right to a flow of

7.745 cfs. But NFWF’s prior appropriators did not consume

all 7.745 cfs. Their consumptive use was only 4.122 cfs, the

remaining 3.623 cfs finding its way back to the Walker River

as runoff. NFWF agreed, consistent with the historic use of

the prior rightsholders, to divide its right into a consumptive

use portion of 4.122 cfs to be used as program water, and the

remaining non-consumptive use portion of 3.623 cfs to be

used to mitigate hydrological system loss.

The Nevada State Engineer and the California Control

Board approved NFWF’s and WRID’s proposed change

applications, but the Decree court refused to approve the

changes. According to the court, NFWF’s changes would

“injure other users with decreed rights.” The court

acknowledged that NFWF would take only “the former

consumptive use amount,” but found that NFWF was “likely

48 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

to call for that amount on every day during the irrigation

season, whereas its predecessors-in-interest did not in

practice call for water during harvests and certain other

periods.” Specifically, the court was referring to the

historical harvest days identified in the evidence submitted to

the Nevada State Engineer, indicating a total of four alfalfa

harvest days in the Mason Valley beginning around June 3

each year. In the Decree court’s view, because “the no injury

rule prohibits NFWF from consuming more water per second

or per year than its predecessors-in-interest did,” “the overall

effect of the change will likely be to reduce the amount of

water available for storage.” The Decree court was

concerned that, although NFWF’s flow rate was consistent

with historic usage, the total amount of water to be taken by

NFWF would exceed the water historically called for by its

predecessors-in-interest:

The Court finds that under the no injury rule,

the changes must be limited not only to the

prior consumptive use per second, but also to

the prior total amount of consumptive use per

year. A limit on the rate of consumption per

second during days of use does not suffice to

satisfy the no injury rule if the total amount of

consumption per year is nevertheless

increased. Where NFWF will in practice

consume water at the same rate as its

predecessors-in-interest but on more days

throughout the years, its greater number of

days of consumption per year results in

increased consumption per year (and therefore

less available storage water available for

junior users).

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 49

Water can be calculated as a flow or as a volume.

Appropriative flow rights under the Decree are calculated in

cubic-feet per second (cfs), while annual consumptive use is

calculated as a volume in acre-feet per acre per irrigation

season (afa). See BECK & KELLEY, 1-1 WATERS AND WATER

RIGHTS § 1.02 (2017). The Net Irrigation Water Requirement

(NIWR) of alfalfa in the Mason Valley is 3.1 afa. See J.L.

Huntington & R.G. Allen, Nevada Department of

Conservation & Natural Resources, EVAPOTRANSPIRATION

AND NET IRRIGATION WATER REQUIREMENTS FOR NEVADA

215 (2010) (“NIWR Report”). The NIWR is synonymous

with consumptive use per year. This figure means that over

the course of an irrigation season, one acre of alfalfa in the

Mason Valley will consume 3.1 acre-feet of irrigation

water—anything beyond that is runoff.15

NFWF’s stipulations contained three provisions pertinent

here. First, NFWF stipulated to an annual consumptive use

volume of 3.1 acre-feet of water per acre (afa), which is the

total consumptive requirement for an acre of alfalfa, the crop

grown by NFWF’s predecessors-in-interest. Second, out of

NFWF’s total rights to 7.745 cfs, only 4.122 cfs—the

consumptive use portion of the flow—would be used as

program water. Third, the remaining portion of its

rights—the non-consumptive use portion of

3.623 cfs—would be at the Water Commissioners’ disposal

15

The NIWR of 3.1 for alfalfa in the Mason Valley was calculated

using evapotranspiration parameters such as crop height, radiation, soil

heat flux densities, temperatures, wind speeds, saturation vapor pressures,

pressure-temperature curves, precipitation, other atmospheric and

psychrometric variables, as well as simulated green-ups and harvest

cuttings. NIWR Report at 3–9, 27, 44–50. The NIWR of 3.1 afa was

derived from mean evapotranspiration values from 1965–2007. Id. at 68,

215.

50 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

to mitigate any possible injury to other water rights, including

the storage rights belonging to WRID.

The Nevada State Engineer received testimony on the

consumptive use as measured per second (cfs) and annually

(afa). And, specifically, that testimony addressed whether

NFWF’s proposed use accounted for the harvest days of its

predecessors-in-interest. The Nevada State Engineer credited

the testimony of hydrologist Dr. Greg Pohll, who stated that

the 3.1 afa in the NIWR included both “variable start dates

for irrigation in Mason and Smith Valleys, and individual

simulated cuttings as part of the calculations.” Similarly, the

Engineer heard from David Yardis, Director of the Walker

Basin Restoration Program, who “reiterated Dr. Pohll’s

testimony that the consumption figures of 3.10 acre-feet per

acre accounted for variable weather situations,

[evapotranspiration], and regular cuttings.”16 The Nevada

16

The NIWR itself accounts for variable irrigation start dates:

Defining the length of the growing season, time to

effective full cover, and harvest dates are all important

aspects of estimating [actual evapotranspiration] and

the NIWR. . . .

Calibration of [Cumulative Growing Degree Days],

[the thirty-day moving average of mean daily air

temperature], percent time from effective full cover to

harvest days, and days after effective full cover to

harvest, for simulating greenup and harvest dates was

ultimately accomplished by minimizing the error in

simulated vs. documented/typical greenup, planting,

and harvest dates outlined in Table 4, which lists the

results and specific information used in the calibration.

NIWR Report at 42–44.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 51

State Engineer found that “Dr. Pohll’s interpretation of the

methodology of the NIWR is correct, and that the NIWR

consumptive use figure of 3.10 acre-feet per acre in the

Walker River Basin for alfalfa takes into account a variable

irrigation start date and multiple simulated cuttings during the

irrigation season.” The Nevada State Engineer found that the

Commissioners’ and the Farmers’ arguments “concerning

impacts to new land storage rights are addressed within the

calculation of the 3.10 acre-feet per acre consumptive use

amount.”

The Decree court failed to defer to the findings of the

Nevada Engineer, whose findings are presumed correct. NEV.

REV. STAT. § 533.450(9)–(10); Alpine Land & Reservoir Co.,

919 F. Supp. at 1474; Morris, 819 P.2d at 205. Once we

consider the record before the Nevada State Engineer, the

Decree court’s concerns are unfounded, and the Nevada State

Engineer properly found that “a transfer [to NFWF] limited

to the consumption portion . . . would avoid conflict and

injury to other existing water rights.” Because these findings

are supported by substantial evidence and the State Engineer

applied the correct legal rule, the Engineer’s conclusions are

entitled to deference. It was error for the Decree court to

reject those conclusions.

To the extent the Decree court made its own findings of

fact, those findings are clearly erroneous. The Decree court

found that there was a difference between NFWF’s proposed

per second consumption rate (cfs) and its annual consumptive

volume (afa). The Nevada State Engineer concluded there

was not, and the math bears this out. NFWF’s stipulated flow

of 4.122 cfs, if called for continuously over the irrigation

season, does not exceed the annual consumptive use volume

of 3.1 afa. They are identical. We convert the stipulated flow

52 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

and consumptive use volume into total acre-feet of water per

irrigation season, and compare. To determine the total

volume of water delivered to Walker Lake if the stipulated cfs

is continuously called for, we multiply the stipulated flow

(4.122 cfs) by seconds in a day (86,400 s), and then by days

in the irrigation season (245 d),17 which produces

87,254,496 cubic-feet or 2,003.091 acre-feet.18 To determine

the total volume of irrigated water previously consumed per

irrigation season in acre-feet, we multiply the total acreage of

farmland whose decreed claims NFWF acquired

(646.160 acres), by the consumptive use by each acre

(3.1 afa). That produces a volume of 2,003.096 acre-feet of

water. If NFWF were to call for a continuous flow of its

maximum diversion rate of 4.122 cfs during the entire

irrigation season, the total amount of program water will be

0.005 acre-feet less than that consumptively used by its

predecessors-in-interest, which appears to be a rounding

error. Whether we calculate the program water as a rate (cfs)

or as a volume (afa), the quantities are the same. The Decree

court erred in when it concluded that the Nevada State

Engineer had not accounted for the harvest days.

The Decree court’s rejection of the California Control

Board’s ruling was also error. WRID holds combined

licenses to store between 71,310 and 76,060 acre-feet of

water annually. It requested permission to use up to

17

The irrigation season is 245 days from March 1 to October 31. See

Decree Art. XVI, amended (1940); Walker River Irrigation District,

RULES AND REGULATIONS GOVERNING THE DISTRIBUTION AND USE OF

WATER § 9.1, http://www.wrid.us/WRID/rulesandregs.

18

One acre-foot equals 43,560 cubic-feet. 87,254,496 divided by

43,560 equals 2,003.091.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 53

25,000 acre-feet of water stored at the Bridgeport and Topaz

Reservoirs for in-stream use at Walker Lake. The California

Control Board approved the temporary permit, finding that

the amount of storage water in the transfer would be limited

to water that would otherwise be consumed or stored by

WRID, and thus no injury would occur. The Board found

that the Farmers objecting to WRID’s proposed change did

not have “any right under contract or otherwise, to the stored

water,” and thus could not be injured by the proposed change

in use. According to the Board, stored water is considered an

artificial flow, and a downstream user has no right to the

discharge of stored water.

The Decree court rejected the Board’s conclusions and

substituted its own conclusion that WRID’s temporary permit

to release stored water would injure “junior storage right[s]”

because WRID was “reduc[ing] stored water that would

otherwise be available to a user with storage rights.” The

court concluded that WRID’s proposal thus ran afoul of the

“no injury rule.” The court’s reliance on injury to “junior

storage right holders” is misplaced, both as a matter of the

Decree and California law. The Decree’s “no injury” rule

refers to “injury to the rights of other parties hereto, as the

same are fixed thereby.” Art. X (emphasis added). The no

injury rule does not extend to persons who do not have

decreed rights. Under Section VIII of the Decree, WRID is

declared to be “the owner of the flow and use of the flood

waters of East Walker River and its tributaries for storage in

Bridgeport Reservoir”; it likewise is the owner of the flood

waters of the West Walker River for storage in the Topaz

Reservoir. Any permits issued to WRID by the California

Control Board are “subject to vested prior rights” and stored

water must be distributed “to the lands in the District entitled

thereto, in accordance with their respective rights.”

54 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

Accordingly, the Decree gives WRID distribution rights over

the stored water, which it must exercise consistent with the

Decree and Nevada law. The Decree recognizes

appropriative and storage rights in numerous private parties

throughout the Walker River Basin, but it gives WRID alone

the right to store and distribute the waters of Topaz and

Bridgeport.

California’s no injury rule is codified in various sections

of California’s Water Code, each of which prohibits injury to

a “legal user of water.” CAL. WATER CODE §§ 1701(b)(2),

1725, 1727(b)(1) (emphasis added). But under California

law, “appropriators have no right to water stored by the

irrigation districts.” State Water Res. Control Bd. Cases,

39 Cal. Rptr. 3d at 244. “When [ ] stored water is released to

customers, it is not part of the river’s natural flow and does

not count towards the appropriators current allocation of river

water.” Id.; see also Stevens, 9 P.2d at 61 (“The producer of

an artificial flow is for the most part under no obligation to

lower claimants to continue to maintain it. . . . [L]ower users

will not have acquired a right against him, either by

appropriation or prescription, to continued augmentation of

the natural volume of the stream”); Lindblom v. Round Valley

Water Co., 173 P. 994, 997 (Cal. 1918) (holding that an

appropriator “cannot require [a reservoir owner] to discharge

any water into the stream during those months in which there

would be no flow if no dam had ever been built.”).

We know of no principle in California law that recognizes

“storage rights” in a reservoir, outside of the reservoir owner.

Insofar as the Farmers complaining here hold no decreed

rights to the waters WRID is storing, they cannot claim any

legal injury caused by changes to how and where WRID

distributes flow to the rightsholders of decreed, appropriative

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 55

rights. As the California Control Board explained “[i]t is not

enough for a water user to show that it will receive less water

as a result of the change. Instead, a water use claiming injury

must demonstrate that it has a right to the greater amount of

water claimed and that the proposed change will interfere

with that right.” The Control Board found that “[n]one of the

[objectors] have demonstrated any right, under contract or

otherwise, to the stored water that will be injured by the

proposed temporary change,” and that the “[l]andowners in

[WRID] will continue to be allocated their portion of the

stored water.” It thus concluded that “[o]nce the water is

diverted to storage in a manner consistent with water right

priorities, water stored in Topaz and Bridgeport Reservoirs is

previously stored water to which the [objectors] have not

demonstrated any legal interest.” In sum, the Control Board

found that the proposed changes “would not injure any legal

use of the water.” That finding is consistent with the Decree

and in accord with California law, and it was error for the

Decree court to refuse to approve the California Control

Board’s Report approving WRID’s change application.

B. The Basin

Under Article XIV of the Decree, “no water shall be sold

or delivered outside of the basin of the Walker River.” The

Water Commissioners argue, and the Decree court held, that

delivering river water to Walker Lake would violate this

export restriction, because the Lake is “outside of the basin of

the Walker River.” The court’s interpretation rested on

several grounds: that there are no decreed rights to

appropriate water from the Lake; that the Decree does not

mention the Lake, but rather mentions other lakes as

tributaries to the River; and that the Decree concerns

appropriative rights only to the River and its tributaries, but

56 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

not the Lake. On this basis the court held that “basin,” as

used in the export restriction, unambiguously refers only to

those agricultural lands that beneficially use the River’s

waters and those waters that are mentioned by name in the

Decree, but not the Lake itself. By contrast, both the Nevada

State Engineer and the California Control Board found that

Walker Lake was within the Walker River Basin.

The Walker River Decree is a partially stipulated decree,

and so we interpret its provisions in a manner consistent with

the entirety of the decree, and without the aid of extrinsic

materials unless the provisions are ambiguous. Wackerman

Dairy, Inc. v. Wilson, 7 F.3d 891, 897 n.13 (9th Cir. 1993).

Provisions are ambiguous where they are subject to two or

more reasonable interpretations. See Frei ex rel. Frei v.

Goodsell, 305 P.3d 70, 73–74 (Nev. 2013); State v. Cont’l

Ins. Co., 281 P.3d 1000, 1004 (Cal. 2012).

The district court correctly noted that the export

restriction ensures that the basin’s waters remain in the basin

for beneficial use by appropriative rightsholders. Such a

protectionist measure appears elsewhere in water law as a

mechanism to preserve water resources for local use. See,

e.g., COLO. REV. STAT. § 37-81-101 (prohibiting the export

of river waters outside Colorado to ensure “adequate supplies

of water necessary to insure the continued health, welfare,

and safety of all its citizens”).

We do not think there is any ambiguity in the phrase

“basin of the Walker River.” Consider the plain hydrological,

geomorphic, geographic, and everyday meaning of the word

“basin.” A “basin,” as we commonly use that word, is simply

the geographic area that is coextensive with a river system’s

hydrological drainage. The Decree court itself used the term

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 57

“basin” according to this plain hydrological and geographic

meaning, when it opened its Order by observing that the

Walker River Basin is approximately 4,050 square miles

“from its origins in the southwestern elevations of the Sierra

Nevada Mountains to its terminus, Walker Lake.”

Even if the term “basin” were ambiguous, interested

extrinsic sources support the interpretation urged by NFWF

and found by the Nevada State Engineer and the California

Control Board. The State of Nevada refers to the Walker

River Basin, including Walker Lake, as “Hydrographic

Region No. 9.”19 The USGS calls it “Accounting Unit

160503,” composed of hydrological sub-units East Walker,

West Walker, Walker, and Walker Lake.20 And the USGS’s

Nevada Water Science Center places the Lake at “the lowest

point in the basin.”21 Additionally, the Nevada Supreme

Court views the Lake as part of the Walker River system and

subject to the Decree court’s jurisdiction.22 The Decree court

itself once noted that the Basin includes “sub-basin[] . . .

19

See Nev. Dep’t of Conservation & Nat’l Res., DESIGNATED

GROUNDWATER BASINS OF NEVADA (2017),

http://water.nv.gov/mapping/maps/designated_basinmap.pdf.

20

Paul R. Seaber, et al., USGS, HYDROLOGIC UNIT MAPS 54 (1994),

https://pubs.usgs.gov/wsp/wsp2294/pdf/wsp_2294.pdf; id., Plate 1,

https://pubs.usgs.gov/wsp/2294/plate-1.pdf.

21

Kip K. Allander, et al., USGS, United States Dep’t of the Int.,

EVAPOTRANSPIRATION FROM THE LOWER WALKER RIVER BASIN, WEST-

C EN TRAL N EVAD A , W ATER Y E A R S 2 0 0 5 -0 7 5 (2009),

https://pubs.usgs.gov/sir/2009/5079/pdf/sir20095079.pdf.

22

Mineral County, 20 P.3d at 805–06.

58 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS

110B,” which the State of Nevada titled the “Lake Subarea.”23

Congress understood no differently when it enacted the

legislation to save Walker Lake under the aptly titled Walker

Basin Restoration Program. Pub. L. No. 111-85, §§ 207–08,

123 Stat. 2845, 2858–60 (2009).

The Commissioners point to a 1935 opinion of the Decree

court, in which Judge St. Sure described his happy “tour of

the Walker River basin” and referred to his visit to “the

valleys, meadows, the Walker Indian Reservation, the storage

reservoirs, a site of a proposed reservoir, and points of

diversion of waters for irrigation,” but omitted any reference

to the Lake. United States v. Walker River Irr. Dist., 11 F.

Supp. 158, 162 (D. Nev. 1935). They also point to statements

made by counsel in the 1930s, in which they mentioned the

Basin, but not the Lake. We give little weight to these

anecdotal statements. The Decree’s export restriction is not

structured as an inclusionary list of those places to which

water may be sent. That Walker Lake itself—an obvious and

dominant physical feature in the Basin—was not mentioned

by the court or counsel means little in light of the Decree’s

text and purpose. The Commissioners’ interpretation flies in

the face of history and logic and that ancient and simple

maxim aqua currit et debet currere ut currere solebat ex jure

naturae: water runs and ought to run as it is accustomed to

run, according to the law of nature. Wholey v. Caldwell,

41 P. 31, 32 (Cal. 1895); Lux v. Haggin, 4 P. 919, 920 (Cal.

1884); Lobdell, 2 Nev. at 276. We conclude that Walker

Lake is part of the Walker River Basin. As a consequence,

23

Compare United States v. Walker River Irr. Dist., 2002 WL

35634154, at *1 (D. Nev. Apr. 26, 2002), with Nev. Dep’t of Conservation

& Nat’l Res., DESIGNATED GROUNDWATER BASINS OF NEVADA (2017),

supra note 19.

NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 59

dedicating water from the Walker River to Walker Lake does

not violate the Decree’s prohibition on delivering water

“outside of the basin of the Walker River.”

IV. CONCLUSION

The judgment of the Decree court is reversed. We vacate

the opinion below and remand with instructions to grant the

Petition to Confirm Nevada State Engineer Ruling No. 6271

of March 20, 2014, grant the Petition to Confirm California

State Water Resources Control Board Report of May 29,

2014, and modify the Decree accordingly as necessary.

REVERSED and REMANDED.