Petition — Pyramid Lake Paiute Tribe of Indians v. Truckee-Carson Irrigation District
Supreme Court brief1983
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No. 83- APR test
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In The
Supreme Court of the United States
October Term, 1983
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amnveenameeniy
PYRAMID LAKE PAIUTE TRIBE OF INDIANS,
Petitioner,
Vs,
TRUCKEE-CARSON IRRIGATION DIST
STATE OF NEVADA, UNITED STAT
OF AMERICA, et al.,
Respondents.
RICE,
ES
oO
PETITION FOR LEAVE TO INTERVENE
AND PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
fy
V
Scott B. McEnroy*
Rosert S. Petcycer
Frepericks & PEeicycer
1007 Pearl Street. Suite 240
Boulder, Colorado 80302
(303) 443-1683
Micuaet R. THorp
EIsENHOWER, Cartsox, NEWLANDS,
Rena, Hennior & Quixn
1200 First Interstate Plaza
Tacoma, Washington 98402
(206) 572-4500
JEANNE S. WHITEING
Native American Rights Fund
1506 Broadway
Boulder, Colorado 80302
Attorneys for Petitioner
Pyramid Lake Paiute
Tribe of Indians
*Counsel of Record
COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102
QUESTIONS PRESENTED
1. Although denied intervention below, does the
Pyramid Lake Paiute Tribe. whose Reservation encom-
passes Pyramid Lake and the lower reaches of the Truckee
River, have sufficient interest and standing in a decision
adjudicating water rights on the Carson River to seek
and be granted a writ of certiorari in this Court to re-
view that decision when the result of the decision below
will be the loss of Truckee River water which otherwise
would flow to Pyramid Lake and benefit the endangered
eui-ui and threatened Lahontan cutthroat trout which in-
habit the Lake.
2. Does Section 8 of the Reclamation Act of 1902, 43
U.S.C. $383, require striking contractually established
water delivery requirements on a federal reclamation
project because those requirements conflict with a subse-
quent de novo judicial determination of the maximum po-
tential beneficial use of water on the project, absent any
indication that the contract duties were arbitrary, capri-
cious, an abuse of discretion, inconsistent with state law,
or otherwise improper.
3. Whether the Nevada State Engineer has primary
administrative jurisdiction, exclusive of the Secretary of
the Interior, to approve changes in the uses and delivery
sites of water on a federal reclamation project.
LIST OF PARTIES
The Plaintiff-Appellant in the United States Court of
Appeals for the Ninth Circuit was the United States of
America. The Defendant-Appellees in the Ninth Circuit
were the Truckee Carson Irrigation District, the State of
Nevada, the Sierra Pacifie Power Company, the State of
California, and the other water right holders under the
decree of the district court. The Truckee-Carson Irriga-
tion District appeared in its own right and as class repre-
sentative of approximately 4,000 Newlands Project hold-
ers of water right contracts and applications. Because of
the large number of upstream users whose rights are not
affected by the present petition, the Tribe has filed with
the clerk of this court a list of parties holding rights un-
der the decree,
Pages
uestions Presented i
ee 6 Oe
I ee 1
Ne . 2
PI i 2
3
ili
TABLE OF CONTENTS
Reasons for Granting Intervention and
The Writ of Certiorari:
I,
EL.
IIT.
The Pyramid Lake Tribe has Standing to Seek
Review of the Decision of the Ninth Circuit
Court of Appeals because the Outcome of this
Case will Affect the Ava ability of Water Re-
quired to Restore and Maintain the Pyramid
Be Pe
The Water Duties Established by the Water
Right Contracts and Applications of the Proj-
ect Water Users are Entitled to Judicial Defer-
ence and May Not be Upset by a de novo Judi-
cial Determination of the Maximum Potential
Beneficial Use of Water.
The Court’s Decision to Grant Primary Admin-
istrative Jurisdiction to the Nevada State Engi-
neer Overlooks Specific Congressional Directives
Granting Such Authority to the Secretary. ..........
EN INES NIE SL) an PE ES
12
17
26
28
iv
TABLE OF CONTENTS—Continued
Pages
APPENDICES TO PETITION FOR INTERVENTION
AND PETITION FOR INTERVENTION
Appendix A Opinion of the United States Court
of Appeals for the Ninth Circuit in
United States v. Alpine Land and
Reservoir Company, 697 F. 2d
a CES SEER ne App. 1
Appendix B Order of the United States Court
of Appeals for the Ninth Circuit
denying the petition of the Pyra-
mid Lake Paiute Tribe of Indians
for intervention, or in the alterna-
tive for substitution, filed April 1,
a a Oe as App. 20
Appendix C Opinion of the United States Dis-
trict Court for the District of Co-
lumbia in Pyramid Lake Paiute
Tribe of Indians v. Morton, 354 F.
Supp. 252 (1973) App. 21
Appendix D Letter to James G. Watt from Joe
Serpa, Jr., dated May 19, 1981 App. 51
Appendix E Letter to the Honorable William
French Smith from Paul Laxalt
dated August 6, 1981 App. 68
Appendix F Opinion of the District Court... App. 69
Appendix G Order on Motion App. 107
Appendix H Opinion of the Ninth Circuit App. 113
TABLE OF AUTHORITIES
CasEs:
Pages
Arizona v. California, No. 8 Original issued
on mares we tee cnet i ae
Bryant v. Yellen, 447 U.S. 352 14, 15, 20
California v. United States, 488 U.S. 645
Cte) 6. ....20, 26, 28
Carson Truckee Water Conservancy District
v. Watt, 549 F. Supp. 704 (1982) appeal
agocactea Fen. 17, 1963 (1963) _ Cts 6,14
Cascade Natural Gas Corporation v. El Paso
Natural Gas Co., 386 U.S. 129 (1967) 16
Colorado v. New Mexico, — U.S. —, 74 L. Ed.
ee, aoe Cee) . 24, 25
Defenders of Wildlife v. Andrus, 428 F. Supp.
rere a
Doherty v. Pratt, 34 Nev. 343, 124 P. 579 (1912) 24
Fox v. Ickes, 137 F. 2d 30 (D.C. Cir.), cert.
ee... 20, 21
Hunter v. Ohio ex rel. Miller, 396 U.S. 879
_— .........
In Re Bridger Valley Conservancy District,
401 P. 2d 289 (Wyo. 1965) . 22
Missouri-Kansas Pipeline Co. v. United States,
312 U.S. 502, 506 (1941) 16
TABLE OF AUTHORITIES—Continued
Pages
Moe v. Salish & Kootenai Tribes, 425 U.S.
463 (1976) En eee 16
Nevada v. United States, Nos. 81-2245, 81-
Palila v. Hawaii Department of Land and Nat-
ural Resources, 639 F. 2d 495 (9th Cir. 1981)
oe 14
Pyramid Lake Paiute Tribe v. Morton, 354
F’. Supp. 252 (D. D. C. 1973) .......... 6, 8, 12, 13, 16, 17, 27
Roeder v. Stein, 23 Nev. 92, 42 P. 867 (1895) 24
Sporhase v. Nebraska, — U.S. —, 73 L. Ed.
1254 (1982) oo! Se
Truckee-Carson Irrigation District v. Secre-
tary of the Interior, Civil No. R-74-34 BRT
(D. Nev.) 9
TVA v. Hill, supra, 437 U.S. 153 (1978) 0. 13
United States v. Alpine Land and Reservoir
Company, 431 F. 2d 763 (9th Cir. 1970),
rehearing denied, 431 F. 2d 763 (9th Cir.
1970), cert. denied, 401 U.S. 912 (1971) .......... L113
United States v. Imperial Irrigation District,
509 F. 2d at 521-22 14
United States v. McDonald, 432 U.S. 385 (1977) 16
United States v. Orr Water Ditch Company,
In Equity No.-A-3 (D. Nev. 1944) 20... 7, 13, 18
vil
TABLE OF AUTHORITIES—Continued
Pages
United States v. Terminal Railroad Asso-
ciation, 236 U.S. 194, 199 oe ee 15
United States v. Truckee-Carson Irrigation
District, 649 F. 2d 1286, 1294 (9th Cir.
1981), modified, 666 F. 2d 351 (1982), cert.
granted sub nom. CE Seana, 08.
United States v. Tulare Lake Canal Co., 535
F’. 2d 1093, 1126-1131 (9th Cir. 1976), cert.
denied, 429 U.S. 1121, 677 F. 2d 713 (1982)
vacated on other grounds — U.S. — (1983) ... 19
Warth v. Seldin, 422 U.S. 490 fo fp) 14
Westlands Water District v. United States,
rae. eee ee 198). 22
White Mountain Apache Tribe v. Bracker.
viticlicc Pog (te
STATUTES AND REGULATIONS:
ciittigh ig § 90 i.
ere... 8
43 C.F.R. §§ 418.2(b), 418.2(c), 418.3(a),
— rr iC... 8
ge ee 2
ee a 4
50 C. F. R. § 17.11 at 76, 70 (1980) 6
34 I. D. 544, 545 (1906) in oe
Vili
TABLE OF AUTHORITIES—Continued
Pages
idl oo host booce vic a er 19
cil bee a ee 19
vii cath bot cg ic in ie 19
git 8
siilindieca, (omit uc, ec 8
ai ©. He. S41 (1976) 8
wy bills botesdh i Ss 8
sg th co Poccm ee Hl... | Senate neces 8
itt ellis Mime. 1 ina 8
wWeaGcni ea. ssi... 6
“icttelloc Roo ee 9
i ado oh a OS 2
vests x es Ee - =
43 U.S.C. $383 . 2, 23
43 U.S.C. $389 SE CEE aE ae 3, 27, 28
43 U.S.C. $419 ae 4
43 U.S.C. $440 . 19, 27
S.4.53o........ a 19
|
ig ae
Te ee
In The
Supreme Court of the United States
October Term, 1983
ry nee
PYRAMID LAKE PAIUTE TRIBE OF INDIANS,
Petitioner,
Vs,
TRUCKEE-CARSON IRRIGATION DISTRICT,
STATE OF NEVADA, UNITED STATES
OF AMERICA, et al.,
Respondents.
Pr; =
PETITION FOR LEAVE TO INTERVENE
AND PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Pg a
one ae
The Pyramid Lake Tribe prays for leave to intervene
and that a writ of certiorari be granted to review the
Judgment of the United States Court of Appeals for the
Ninth Circuit entered in United States v. Alpine Land
and Reservotr Company in January 24, 1983. The Tribe
further prays that its petition for a writ of certiorari be
deemed filed as of the date of its submission.
fy.
ae
OPINIONS BELOW
The opinion of the Ninth Circuit Court of Appeals is
printed in the Appendix (App.) at A, App. 1, and is re-
ported at 697 F. 2d 851 (1983). The opinion of the district
court is reported at 503 F. Supp. 877 (D. Nev. 1980) and is
printed in the Appendix at F, App. 69. The order of the
Court of Appeals denying the Tribe’s most recent motion
to intervene is unreported but is printed in the Appendix
at B, App. 20. On January 6, 1969, the district court denied
a motion for tribal intervention. That order is printed in
the Appendix at G, App. 107. The opinion of the Ninth Cir-
cuit affirming that earlier order is reported at 431 F. 2d
763 (1970) and is printed in the Appendix at H, App. 113.
This Court’s refusal to issue a writ of certiorari is report-
ed at 401 U.S 909 (1971).
7, ae
as
JURISDICTION
The judgment of the United States Court of Appeals
for the Ninth Circuit was entered on January 24, 1983 and
this petition was filed within 90 days of that date. This
Court has jurisdiction under 28 U.S.C. $ 1254(1).
nee
ee
STATUTES INVOLVED
Reclamation Acts
Section 8 of the Reclamation Act of 1902, 32 Stat. 388,
390, 43 U. S. C. §§ 372, 383, provides:
Nothing in this Act shall be construed as affect-
ing or intended to affect or to in any way interfere
with the laws of any State or Territory relating to the
control, appropriation, use, or distribution of water
used in irrigation, or any vested right acquired there-
under, and the Secretary of the Interior, in carrying
out the provisions of this Act, shall proceed in con-
formity with such laws, and nothing herein shall in
3
any way affect any right of any State or of the Fed-
eral Government or of any landowner, appropriator,
or user of water in, to, or from any interstate stream
or the waters thereof: Provided, That the right to
the use of water acquired under the provisions of this
Act shall be appurtenant to the land irrigated, and
beneficial use shall be the basis, the measure, and the
limit of the right.
Section 17 of the Act of August 4, 1938, 53 Stat. 1197,
43 U.S.C. § 389, provides in part:
The Secretary is further authorized, for the pur-
pose of orderly and economical construction or opera-
tion and maintenance of any project, to enter into
such contracts for exchange or replacement of water,
water rights, or electric energy or for the adjustment
of water rights, as in his judgment and necessary and
in the interests of the United States and the project.
{)
VV
STATEMENT OF THE CASE
This suit was brought by the United States to quiet
title to rights to the use of water on the Carson River in
Nevada. The Carson River begins in the Sierra Nevada
Mountains of California. Its two branches join in Nevada,
flowing into the Carson Valley where the farmlands of
the upstream users are located. Lands have been irrigated
in this upstream area since the early 1850’s and virtually
every water right in this area has a priority date prior
to 1902. From there, the River travels north and east
through narrow desert valleys until it reaches Lahontan
Reservoir, the primary feature of the Newlands Reclama-
tion Project. Lahontan Reservoir also receives substan-
tial amounts of water from the Truckee River through the
4
Truckee Canal. Below the Reservoir are lands irrigated
by water from the Newlands Project. Most of the land
Owners are members of the Truckee-Carson Irrigation
District (“TCID”).
A. The Newlands Project. In 1902, the Secretary of
the Interior withdrew from entry approximately 130,000
acres of public land of the United States in the Carson
Sink Valley, Churchill County, Nevada. These lands were
thought to be susceptible to cultivation if irrigated. On
May 26, 1903, the Secretary gave notice of his claim, on
behalf of the United States, to 5,000 cubic feet per second
of unappropriated Carson River water for irrigation and
other beneficial uses within the proposed project area.
The Secretary also announced his intention to construct
a storage reservoir to impound Carson River water when
those waters were not required for irrigation and other
beneficial uses. On May 30, 1903, the Secretary’s notice
was recorded with the Churchill County recorder. At that
time, the Nevada State Cooperative Act of 1903 limited
the amount of water that could be appropriated for irri-
gation to 3 acre feet per acre,
In 1914, the Lahontan Dam and the Lahontan Power
Plant were completed. The Dam stores impounded water
from the Carson River, as well as the water diverted from
the Truckee River which reaches the Reservoir through
the Truckee Canal. Pursuant to Section 4 of the 1902 Rec-
lamation Act, 43 U.S. C. §419, the Secretary on May 6, 1907,
announced the availability of water for the irrigation of
74,820 acres in the Carson and Truckee Divisions of the
project. Those seeking to use such waters then engaged
in transactions with the Secretary which ultimately result-
ed in the issuance or approval by the Secretary of record-
4)
able instruments called “water rights certificates” or “wa-
ter rights applications.” In these instruments, the United
States in essence contracted with project water users and
agreed to supply project water to irrigate a specified
amount of acreage owned by the farmer within the project.
Construction of the entire project was fully completed
by 1927.
For some 42,447 acres, contracts were signed between
the Secretary or his delegate and project water users
limiting the amount of project water delivered to no more
than 3 acre feet per acre.' In contracts covering the bal-
ance of the lands, there is no express limitation governing
the amount of water to be delivered, other than a recitation
that such water “shall be beneficially used for the irriga-
tion” of a specified amount of project land. See TCID
Exh. 38.
B. The Pyramid Lake Tribe and its Reservation.
The Pyramid Lake Paiute Tribe inhabits and governs the
Pyramid Lake Indian Reservation which includes the
lower reaches of the Truckee River and Pyramid Lake
which has no outlet. One of the purposes of establishing
the Reservation in 1859 was to enable the Pyramid Lake
Indians to take advantage of the Pyramid Lake fishery
which was subsequently devastated by the diversion of
approximately half the flow of the Truckee River to the
Newlands Project through the Truckee Canal. The Lake’s
principal fish, the Lahontan cutthroat trout and the cui-ui,
are classified as threatened and endangered under the En-
1Of these lands, approximately 10,420 acres are “vested
rights lands,” i. e., lands whose owners previously held an ap-
purtenant water right which they exchanged in return for the
right to receive a specific annual quantity of project waters.
See, e. g., 42 |. D. 365, 382 | 68 (1913).
6
dangered Species Act of 1973, 16 U.S.C. §¢ 1531 et seq.;
50 C. F. R. $17.11 at 76, 70 (1980) ; United States v. Truck-
ee-Carson Irrigation District, 649 F.2d 1286, 1294, (9th
Cir. 1981), modified, 666 F.2d 351 (1982), cert. granted
sub nom. Nevada v. United States, Nos. 81-2245, 81-2276,
and 82-38 (1982). The cui-ui is not found any place else
in the world, id., 649 F.2d at 1290, and the restoration of
both species is dependent upon obtaining more water for
spawning flows and to maintain the level of the Lake.
United States v. Truckee-Carson Irrigation District, supra,
649 F. 2d at 1292-94, 1311-13; Carson Truckee Water Con-
servancy District v. Watt, 549 F.Supp. 704, 710-11 (D.
Nev. 1982) appeal docketed Feb. 17, 1983 (1983). See
generally Brief of Cross Petitioner, Pyramid Lake Paiute
Tribe of Indians in Nevada v. United States, Nos. 81-2245,
81-2276 and 82-38 at 2-6.
The Tribe is seeking judicial recognition of its re-
served rights for fishery purposes. See the briefs of the
Pyramid Lake Paiute Tribe filed in Nevada v. United
States, supra. The Tribe also has sought to reduce the
amount of water used by other Truckee River appropri-
ators, principally the Newlands Project in order to obtain
greater flows in the Truckee River for fish spawning pur-
poses and to maintain the level of Pyramid Lake.’ See,
Pyramid Lake Paiute Tribe v. Morton, 354 F.Supp. 252
(D.D.C. 1973). (A copy of that decision is included in the
Appendix at C, App. 21.)
2The Tribe and the United States have also complained
that the federal water master has permitted Truckee River di-
versions for agricultural purposes in the area surrounding Reno
and Sparks far in excess of the decreed water rights. See,
United States v. Truckee-Carson Irrigation District, supra, 649
F.2d at 1294-95. That matter is currently pending before the
district court in Nevada.
~]
C. The operation of the Newlands Project and its
effect on the Truckee River. Approximately 90% of the
Newlands Project’s irrigated acreage is within the Carson
River drainage below Lahontan Reservoir. The Truckee
and Carson Rivers are linked by the Truckee Canal which
connects the Derby Diversion Dam on the Truckee River
and Lahontan Reservoir. Most of the Truckee River
water diverted at Derby Dam flows through the Truckee
Canal and is stored in Lahontan Reservoir along with the
stored waters of the Carson River or released into the
Carson River below Lahontan for use on the lands of the
Carson Division of the Newlands Project. The result is
that the greater the demand for water by the Newlands
Project, the larger the diversion of Truckee River water
at Derby Dam. In turn, the larger the diversions at Der-
by, the less Truckee River water which flows into Pyramid
Lake. App. C, App. 21.
From 1926 through the mid-1960’s, the Truckee-Car-
son Irrigation District (TCID), an association of New-
lands Project water users, operated the project, including
Derby Dam and the Truckee Canal diversion facilities sub-
ject, at least in principle, to the temporary decree in this
case, see pp. 9-10, infra, and the decree in United States v.
Orr Water Ditch Company, In Equity No.-A-3 (D. Nev.
1944) on the Truckee River. In 1967, the Secretary of the
Interior, apparently dissatisfied with the district’s failure
to abide by those decrees, promulgated regulations, 43
C.F.R. Pt. 418, which sought to “initiate Departmental
controls, lacking in the past, to limit diversions by TCID
from the Truckee River within decreed rights, and there-
by make additional water available for delivery to Pyra-
mid Lake.” 43 C. F. R. § 418.1(b). These regulations were
predicated in part on the obligation of the United States
as trustee “to protect and preserve the rights and inter-
ests of the Pyramid Lake Tribe of Indians in the Truckee
River and Pyramid Lake.” and were designed to imple-
ment both the Truckee and Carson River water rights de-
erees. 43 C.F.R. §§418.2(b), 418.2(c), 418.3(a), 418.5.
The diversions for the Newlands Project were limited to
no more than 406,000 acre feet, if available, from the
Truckee and Carson Rivers. 43 C.F.R. $418.4(b). The
regulations also prescribed a procedure for the formula-
tion of future reductions in that ceiling and more detailed
operating criteria and procedures in succeeding years.
43 C. F. R. $§ 418.3, 418.4.
The Secretary’s operating criteria and procedures
were challenged by the Tribe and set aside by the district
court in Pyramid Lake Paiute Tribe of Indians v. Morton,
supra. The district court ordered the Secretary to sub-
mit amended operating criteria and procedures which
“give proper weight to the maximum f-rm headgate en-
titlements of both the Orr Water Ditch and Alpine de-
crees.” App. C, App. 21. After further proceedings, the
Secretary was ordered to impose a limit of 350,000 acre
feet as an interim measure in 1973 and a limit of 288,129
acre feet in 1974 and succeeding years. App. C, App. 21.
The government accepted the court’s decision, and after
1973, the Secretary’s operating criteria limited TCID to
no more than 288,129 acre feet from both the Truckee
and Carson Rivers. See, e. g., 38 F.R. 6697 (1973); 40 F.
R. 1109 (1975) ; 41 F. R. 5411 (1976) ; 42 F. R. 39492 (1977) ;
44 I". R. 37561 (1979) ; 44 F. R. 61267 (1979). For purposes
of this petition it is also important to note that the post-
1973 operating criteria provide in Section D(4) that the
9
Secretary is not to approve any transfers of water rights
unless TCID is in compliance with the regulations and the
transfers do not enlarge consumptive use on the Project.
TCID refused to comply with the criteria published
in March, 1973 and succeeding years. Consequently, in
September, 1973, the Secretary of the Interior terminated
the government’s 1926 contract with TCID and stated the
government’s intent to take back operational control of
the project, including Derby Dam, in October, 19743 TCID
filed suit in March, 1973 challenging the validity of the
contract termination and the post-1973 operating criteria.
Truckee-Carson Irrigation District v. Secretary of the
Interior, Civil No. R-74-34 BRT (D. Nev.). The Pyramid
Lake Tribe intervened in that suit seeking to uphold the
validity of the Secretary’s termination of the 1926 con-
tract and of the post-1973 operating criteria. That case
is awaiting decision.
D. The Course of Proceedings in this Case. The
case was instituted by the United States in 1925 to quiet
title to the government’s rights to use water from the
Carson River on the Newlands Project and to fix the rela-
tive rights of the defendants. Jurisdiction was invoked
pursuant to 28 U.S.C. §1345 and the Act of September
19, 1922, 42 Stat. 849. Evidence was received by a Special
Master between 1929 and 1940. In June, 1949, the district
court entered a “Temporary Decree” and appointed a
water master to administer the Carson River. A second,
almost identical, order was entered on March 24, 1950.
3The 1926 contract requires 1 year’s notice prior to the
effective date of termination.
10
These orders and the appendices and exhibits thereto are
referred to as the “Temporary Decree” or “Temporary
Restraining Order.” The temporary decree purported to
define the water rights on the Carson River until the dis-
trict court’s decision in December, 1980. For purposes
of this petition, the most important aspect of the tempor-
ary decree was the establishment of a water duty for the
lands within the Carson Division of the Newlands Recla-
mation Project as not to exceed 2.92 acre feet per acre
(AFA) measured at the farm headgates.
In March, 1968 the Pyramid Lake Paiute Tribe moved
to intervene in the district court. That motion was denied
on the grounds that it was not timely, that the Tribe had
no interest in the waters of the Carson River and that
the Tribe’s interest in the Truckee River water subject to
diversion as a result of the Alpine decree was adequately
represented by the United States, a concept which the
United States put forward.
The Tribe appealed the denial of its motion to inter-
vene. The Ninth Circuit affirmed, holding that the mo-
tion was not timely filed and that the Tribe was without
sufficient interest in Carson River waters to merit inter-
vention before the district court. United States v. Alpine
Land and Reservoir Company, 431 F.2d 763 (9th Cir.
1970), rehearing denied, 431 F.2d 763 (9th Cir. 1970),
cert. denied, 401 U.S. 912 (1971).
The district court rendered its opinion in this case
on October 28, 1980. United States v. Alpine Land and
Reservoir Company, 503 F. Supp. 877 (D. Nev. 1980). A
final decree was entered on December 18, 1980. The water
duty for the lands within the Carson Division of the New-
11
lands Project, measured at the farm headgates, was held
to be 3.5 AFA for bottomlands and 4.5 AFA for bench-
lands, instead of the 3 AFA duty advocated by the United
States. 503 F.Supp. at 885-88. In route to this conclu-
sion, the Court held invalid the 3 AFA water delivery re-
quirement found in the contracts between the United
States and private landowners within the Newlands Proj-
ect covering more than 42,000 acres. The court further
found that the Nevada State Engineer, not the Secretary
of the Interior, has the power to approve or reject ap-
plications to change the place of diversion, manner of use,
or place of use of water within the Newlands Project.
503 F. Supp. at 892-93.
In its opinion, the Court of Appeals upheld these
rulings. It found determinative the factual finding of the
district judge that, in 1980, the concept of beneficial use
required a water duty of 3.5 AFA for bottomland and 4.5
AFA for benchlands, noting that the district court’s “fact-
ual findings were well within a permissible view of the
weight of the evidence....”. App. A, App. 1. The water du-
ties established by the contractual agreements between the
United States and the project water users were determined
to be irrelevant because they were viewed at best as merely
establishing beneficial use at the time of execution. The
weight to be given those duties was further reduced be-
cause a specific water duty had not been included in every
such agreement and the Secretary had only recently taken
steps to compel the water user to adhere to the contract
limits. The Court also determined that the Secretary of
the Interior had no special role to play with regard to
changes in the place and manner or use of water on the
Newlands Project.
12
REASONS FOR GRANTING INTERVENTION AND
THE WRIT OF CERTIORARI
I. The Pyramid Lake Tribe has Standing to Seek Re-
view of the Decision of the Ninth Circuit Court of Appeals
because the Outcome of this Case Will Affect the Avail-
ability of Water Required to Restore and Maintain the
Pyramid Lake Fishery.
The heart of the Tribe’s interest in this case is the
spectre of losing the benefit of its hard-earned victory in
Pyramid Lake Paiute Tribe of Indians v. Morton, supra.
As described at pp. 7-9, supra, the implementation of
the secretarial criteria imposed after that case would
result in less Truckee River water going to the Newlands
Project and more going to Pyramid Lake. The keystone
of those criteria is the 2.92 AFA water duty established
in the temporary decree in this ease. The Court of Ap-
peals’ affirmance of the district court’s upward revision
of that duty will render those criteria meaningless and
divest the Tribe of their benefit. In short, Pyramid Lake
will lose between 38,000 and 60,000 acre feet of water by
virtue of the Ninth Circuit’s decision.’
‘The ramifications to the Tribe of the Ninth Circuit’s deci-
sion is further highlighted by the State of Nevada’s reliance on
the Ninth Circuit’s rejection of the contract water duty in its
Reply Brief in Nevada v. United States, supra, at pp. 4-6.
‘Assuming that the water duty decreed in the Alpine case
applies to 75% of the irrigated lands within the Carson Division
of the Newlands Project and ignoring the 4.5 AFA water duty
for bench lands, the difference between the 3.5 and 3.0 (2.92
rounded off to 3) AFA water duties constitutes a loss of more
than 38,000 acre feet annually to Pyramid Lake:
(Continued on next page)
13
The decision’s impact on the Secretary’s Operating
Criteria was candidly acknowledged by TCID in a letter
it wrote to the Secretary after the district court decision:
The bottom line is that in light of the December
18, 1980 Final decree in the Alpine case, everyone
must now concede that the court-imposed limitation
on the releases from the Truckee Canal and Lahontan
Reservoir . . . cannot be sustained. The decrees in
the Orr Ditch and Alpine cases now clearly provide
for substantially more irrigation releases than the
court imposed 288,129 acre feet, under anyone’s com-
putation. Letter to James G. Watt from Joe Serpa,
Jr. dated May 19, 1981. App. D, App. 51.
The holding that changes in the manner of use or
place of use of water within the Newlands Reclamation
Project are subject to the approval of the Nevada State
Engineer, not the Secretary of the Interior, also injures
the Tribe by taking away one of the means utilized by the
Secretary of the Interior to obtain enforcement of the
operating criteria that resulted from the Pyramid Lake
[rite v. Morton litigation. See supra at pp. 8-9. It also
(Continued from previous page)
60,000 acres (approximate irrigated acreage of Divi-
sion)
EF go
45,000 acres (75% of irrigated acreage of Carson Di-
vision)
x . 5 acre feet (difference between 3.5 and 3)
22,500 acre feet (added quantity required to meet high-
er water duty-measured at farm head-
gates)
59% (water conveyance efficiency for Carson
Division)
38,135 acre feet (added quantity required to meet higher
water-duty-measured below Lahontan
Reservoir).
(Continued on next page)
14
divests the Secretary of the administrative descretion to
determine the effect of such changes on the project and
other federal interests.
The gravamen of the Tribe’s complaint, thus, is that
TCID is diverting too much water from the Truckee River
and that those diversions harm the endangered and threat-
ened fish of Pyramid Lake and the ecosystem upon which
they depend and interfere with the efforts to conserve
those species. The Endangered Species Act bolsters the
Tribe’s standing to assert these injuries. By not seeking
further judicial review, the federal government has failed
to utilize its authorities to conserve and protect the two
species and their ecosystem. See TVA v. Hill, supra, 437
U.S. 153 at 172, 180, 184-85 (1978); Palila v. Hawaii De-
partment of Land and Natural Resources, 639 F. 2d 495
(9th Cir. 1981); Carson-Truckee Water Conservancy Dis-
trict v. Watt, supra; Defenders of Wildlife v. Andrus, 428
F. Supp. 167 (D. D.C. 1977). Permitting the Tribe to in-
tervene will further the purposes and policies of that act.
See Warth v. Seldin, 422 U.S. 490, 500-01, 509-10, 512-14
(1975) ; United States v. Imperial Irrigation District, 559
F’. 2d 509, 521-522 (9th Cir. 1979), aff'd on standing Bryant
v. Yellen, 447 U.S. 352, 366-68 (1980).
(Continued from previous page)
If the 3.5 acre feet per acre water duty were applied to all of
the irrigated land within the Carson Division, rather than just
75%, the loss to Pyramid Lake would be more than 50,000 acre
feet annually. And the loss would be even greater if the 4.5
AFA water duty for benchlands is applied to any lands within
the Carson Division. The district court did not determine the
extent, if any, of any such benchland acreage within the Carson
Division. TCID claims 9,000 acres of benchlands in the Carson
Division of the Newlands Project (See Appendix D at App. 51)
which would result in an additional loss of 15,250 acre feet in-
flow into Pyramid Lake (9,000 acres x 1 acre foot per acre (the
difference between 4.5 and 3.5) divided by 59%).
15
Intervention by the Tribe is fully warranted since
none of the present parties are pursuing these important
matters and the Tribe has a vital stake in the outcome.
See Bryant v. Yellen, supra. The upstream users are not
concerned over how water is used on the Project because
their rights are physically and legally superior to those
of the Project. The state is interested only in asserting
the interests of TCID. The United States once pledged
to represent the Tribe’s interests but, for some reason, has
now decided not to seek further judicial review, Accord-
ingly, it falls to the Tribe to voice concern over the harm
to its interests and those of the Nation in the preservation
of Pyramid Lake.‘
This Court has permitted intervention at this stage
by parties vitally affected by litigation even though those
parties were denied intervention below. See United States
v. Terminal Railroad Association, 236 U.S. 194, 199 (1915) ;
Hunter v. Ohio ex rel Miller, 396 U.S. 879 (1969). The
need for intervention in circumstances such as this in which
private parties seek to advance the public interest has been
forcefully stated by this court:
Plainly enough, the circumstances under which inter-
ested outsiders should be allowed to become partici-
pants in a litigation is, barring very special cireum-
stances, a matter for the nisi prius court. But where
the enforcement of a public law also demands distinct
safeguarding of private interests by giving them a
‘The well established national concern over the preserva-
tion of endangered and threatened species has been discussed
previously. And Congress has also specifically voiced its con-
cerns over the deterioration of the Pyramid Lake fishery and
authorized efforts to restore the fishery in the Washoe Project
Act of 1956, 43 U.S.C. § 617 et seq. See, United States v.
Truckee-Carson Irrigation District, supra, 649 F. 2d at 1311-12.
16
formal status in the decree, the power to enforce
rights thus sanctioned is not left to the publie author-
ities nor put in the keeping of the district court’s
discretion. Missouri-Kansas Pipeline Co. v. United
States, 312 U.S. 502, 506 (1941).
See also Cascade Natural Gas Corporation v. El Paso
Natural Gas Co., 386 U.S. 129 (1967).
In this case, the Tribe wishes to assert the position
urged unsuccessfully below by the United States. This
is particularly appropriate in light of the prior pledge of
the United States that it would represent whatever inter-
ests the Tribe might have in this case. Since that time,
the Tribe’s interests have substantially increased because
of its victory in Pyramid Lake Paiute Tribe v. Morton and
the subsequently implemented Secretarial regulations. As
soon as the Tribe became aware that the United States
would not act to protect the critical tribal interests in this
case it moved promptly to seek further judicial review.
TCID cannot claim that its “ability to litigate the issue
[will be] unfairly prejudiced” since the Tribe is simply
stepping in the shoes of the United States. See United
States v. McDonald, 432 U.S. 385, 394 (1977).
Tribal intervention to protect its own interests is par-
ticularly appropriate in light of this Court’s recent opinion
in Arizona v. California, No. 8 Original, issued on March
30, 1983 which demonstrates concretely the risk to Indian
tribes of relying on the federal government to advocate
their interests. Certainly here, where the United States
has stepped aside, the Tribe should be permitted to inter-
vene to protect its own interests. See also, Moe v. Salish
& Kootenai Tribes, 425 U.S. 463, 472 (1976) (“Looking to
the legislative history of § 1362... we find an indication
of a congressional purpose to open the federal courts to
the kind of claims that could have been brought by the
17
United States as trustee but for whatever reason were not
so brought.”)
It is worth noting in this regard that this case has
placed unusual and extraordinary political pressure on the
Department of Justice to accept a decision contrary to the
position which it urged for over 55 years. See letter to
the Honorable William French Smith from Paul Laxalt,
dated August 6, 1981.’ At the time that letter was sent,
the United States sought repeated extensions to file its
opening brief before the Ninth Circuit, claiming that the
question of whether to appeal from the district court deci-
sion was being debated at the highest levels of the Justice
Department.
The bottom line is that the Tribe’s interests will he
severely damaged if the 3 AFA water duty established by
the lower court decisions is left standing. When the United
States decided not to seek further judicial review, no one
was left to advocate those interests or the national inter-
est in maintaining an adequate water supply for the en-
dangered and threatened species in Pyramid Lake and the
lower reaches of the Truckee River. Accordingly, the Tribe
should be permitted to intervene to seek review by this
Court of the Ninth Circuit’s decision.
II. The Water Duties Established by the Water
Right Contracts and Applications of the Project Water
Users Are Entitled to Judicial Deference and May Not be
Upset by a de novo Judicial Determination of the Maxi-
mum Potential Beneficial Use of Water.
7A copy of that letter is included as Appendix E. The De-
partment has refused to release to the Tribe other correspond-
ence between it and Senator Laxalt. That refusal is the subject
of a separate lawsuit. Pyramid Lake Paiute Tribe of Indians v.
Department of Justice, Civil No. 83-0384 (D. D. C. filed Feb. 10,
1983).
18
Throughout the history of the Newlands Project, the
project water duty was consistently considered to be 3
AFA or slightly less. That amount was the upper limit
of the duty first envisioned during the construction of the
project. U.S, Exh. 9. It was the duty encompassed by
state law when the Secretary posted his notice to appro-
priate water from the Carson River and when project lands
were opened for settlement. That duty was also contained
in the water rights contracts and applications for over
42,000 of the 73,002 acres of project land. After a period
of greater delivery in the years 1909-1911, actual deliveries
to project lands for the years 1912-1922 averaged approxi-
mately 2.92 acre feet per acre annually. S. Doc. No. 92,
68th Cong., Ist Sess. 216 (1924). A duty of 2.92 AFA was
subsequently endorsed by the expert testifying for the
United States in this case in 1929 and was embraced by
TCID at that time and when the temporary decree was
entered. Finally, the temporary decree entered in 1949
and renewed in 1950, established a 2.92 AFA duty for lands
on the Newlands Project.®
Regulations adopted by the Interior Department to
implement the 1902 Act initially authorized the acquisition
and distribution of water by project water users by water
right applications. A 1906 circular of the Interior Depart-
ment, governing the acquisition of project water rights by
potential project water users further provided that “the
’Little weight is due the water duties established by the
decree in United States v. Orr Water Ditch Company, in Equity,
A-3 (D. Nev. 1944). First, those duties arose out of a consent
decree and merely stated that the duties were not to exceed 3.5
AFA and 4.5 AFA. Perhaps more importantly, those duties were
applicable to the full 232,000 acres of marginal land once en-
visioned to be part of the project. The marginal nature of those
lands and their different physical characteristics makes inap-
propriate any comparison of those duties and the duties for the
far better 73,002 acres of lands with water rights.
19
amount of water to be furnished per annum per acre of
irrigable land will be fixed by the Secretary of the Interior
..” 341. D. 544, 545 (1906).
In 1909, additional regulations instructed the Recla-
mation Service to advise its project engineers that their
approval will be regarded as certifying, “(c) that the num-
ber of acre-feet per annum to be furnished is correctly
stated.” 37 I. D. 521, 522 (1909). See also 40 I. D. 641, 669
(1912). The application process was further refined by
the Act of August 9, 1912, 43 U.S.C. 541-546, and by the
Reclamation Extension Act of 1914, 38 Stat. 686, notably
Sections 8 and 14, 43 U.S.C. 440, 475. Regulations were
also adopted to reflect the 1912 and 1914 supplementary
Acts. 42 I.D. 89 (1915); United States v. Tulare Lake
Canal Co., 535 F. 2d 1093, 1126-1131 (9th Cir. 1976), cert.
dened, 429 U.S. 1121, 677 F. 2d 713 (1982) vacated on
other grounds, — U.S. — (1983).
The 1924 Fact Finders’ Report, by a commission ap-
pointed by the Secretary, confirmed that management by
contractual limitations on water use was to continue. S.
Doc. No. 92, 68th Cong., Ist Sess. (1924). See United States
v. Tulare Lake Canal Co., supra, 535 F. 2d at 1131-1132.
This unique report stressed the need for “wise and econom-
ical use of water” and stated that “the true measure of
the proper use of Irrigation water is the water cost of the
crop produced,” S. Doe. 92 at 76. The report recommended
that “compulsory steps should be taken to prevent the
excessive use of water irrigation, as a means of making
the water user protect himself against his own wasteful
practices.” Further, “water rights should never be estab-
lished except upon the basis of a definite quantity of water”
(id. at 78). See also Brief for the United States in Nevada
v. United States, Nos. 81-2245, 81-2276 and 82-38 at n. 4.
20
The Ninth Circuit brushed this long history aside with-
out a word to conclude that the district court was correct
in making a de novo determination of beneficial use in
1980. The court’s reasoning was briefly stated:
As for the contracts, the provision of Section 8 [of the
1902 Act] mandating a beneficial use standard is a
“specific congressional directive” which acts as a “re-
straint upon the Secretary.” See California v. United
States, 438 U.S. 645, 648 n.31... Fox v. Ickes, 137
F. 2G 30 (D.C. Cir.), cert. denied, 320 U.S. 792... ;
Lawrence v. Southard, 192 Wash. 287, 73 P. 2d 722
(1973), App. A, App. 1.
In addressing the argument of the United States and amici
that a de novo decision by the district court was inappro-
priate, the Court of Appeals found the contract duties were
entitled to “little evidentiary significance” simply because
not every contract contained the 3 AFA limit. Thus, in
the Ninth Cireuit’s view, the contract water duties were
not even entitled to the limited review normally given to
agency determinations.°
%lt is possible to view the Court’s decision to reject the
contract limits as based in part on the failure of the government
to enforce those limits. If so, the Court misunderstood the
history of the project and applied an erroneous test for judging
such actions. In Bryant v. Yellen, 447 U.S. 352 (1980) this
Court refused to apply acreage limitations to the Imperial Ir-
rigation District, noting ‘‘the view that lands under irrigation at
the time the Project Act was passed and having a present water
be oe were not subject to the 160 acre limitations remained the
official view of the Department of tue Interior until 1964." 44
U.S. at 362 (emphasis added). Whatever the omissions of the
federal government, the failure of TCID and the water users to
abide by the contract duties was never officially condoned.
There is no finding by the district court that when the United
States was in control of the project prior in 1926, it ignored the
contract limits or that the historical diversions were in excess
of that amount. Indeed, the Fact Finders Report concludes just
the opposite. What occurred is that TCID had a supplemental
(Continued on next page)
21
These issues are worthy of far greater consideration
than that provided by the Ninth Circuit. The potential
harm of the Ninth Circuit’s decision is compounded by the
fact that in For v. Ickes, 187 F.2d 30 (D.C. Cir.), cert.
denied 320 U.S. 792, the Court of Appeals for the District
of Columbia refused to permit the Secretary of the Interior
to rely on contract water duties in compelling project
water users to pay additional construction charges for the
Yakima Project in Washington. The Ninth Circuit’s deci-
sion, along with Fox v. Ickes, supra, is likely to destroy
forever the Secretary’s ability to resolve by contract criti-
cal factual questions over the water requirements for fed-
eral reclamation projects. This case merits review by this
Court for the following reasons:
1. The result reached by the Ninth Circuit will per-
mit only the courts to finally determine the water require-
ments for federal reclamation projects even if the project
water users, the other water right holders on the stream,
and the Secretary are in agreement as to that issue at
(Continued from previous page)
supply of water from the Truckee River and had no reason to
abide by the contract or temporary decree limits. Because
only the Tribe was injured by the excess diversions, no efforts
were taken to limit water use on the Project until the Secretary
sought to limit TCID’s uses in 1967. But the official view re-
mained that the water duties were legally constrained by the
temporary decree and the contracts and applications. TCID’s
refusal to abide by the Secretarial regulations and its violations
of the contract terms and the temporary decree cannot be said
to nullify the terms of those documents. Nor can the project
water users rightly claim surprise over having to abide by the
terms for which they or their predecessors contracted. Article
7 of the Contract between TCID and the United States express-
ly requires TCID to deliver water in accordance with the terms
of the individual contracts. Under the terms of that contract
the individual water users agreed to this limit once again in
Article 12.
22
the time the project is authorized and constructed. Under
the Ninth Circuit’s decision, project water users would be
free to institute a stream adjudication at any time and
claim water above and beyond the amounts for which they
contracted. The need to avoid such uncertainty in water
rights matters was strongly expressed by this Court in
its recent decision in Arizona v. California, supra, slip
opinion at 13-14.
In this case, unlike Nevada v. United States, supra,!®
the controlling documents mandate the conclusion that the
water duty was anticipated by all who were involved to be
no greater than 3 AFA. Nothing in the record suggests
that the contract limits were arbitrary, capricious or other-
wise improper. Accordingly, reliance on those duties by
all users on the stream was fully justified. Yet the deci-
sion of the Ninth Circuit permits a belatedly concluded
adjudication to rewrite the contract water requirements.
That result—if widely applied—threatens to upset a pro-
cedure frequently resorted to by the Secretary and project
water users to ascertain the water delivery requirements
on reclamation projects. See, ¢.g., Westlands Water
District v. United States, 700 F. 2d 561, 562 (9th Cir. 1983)
(litigation arising over the Secretary’s obligation under
contracts relating to the delivery of water on a reclama-
tion project); In Re Bridger Valley Conservancy District,
401 P. 2d 289, 291-92 (Wyo. 1965).
This case, thus, raises substantia! questions over the
role to be accorded the courts in ascertaining the water
requirements for federal reclamation projects. By con-
'0See Brief for the United States in Nevada v. United States
at pp. 7-25.
23
cluding that only the judiciary may finally decide such
questions, the Ninth Circuit usurps far too much of the
authority granted the Secretary to resolve these matters.
Whatever the 1902 Act says about beneficial use, it does
not require the courts to be sole arbitrator of that ques-
tion.
2. The decision of the Ninth Cireuit to reject the con-
tract water duties in favor of duties reflective of the maxi-
mum beneficial use of water on the project ignores this
Court’s teachings regarding the deference due the need
for conservation in resolving disputes over water. See,
é. g., Sporhase v. Nebraska, — U.S. —, 73 L. Ed. 1254, 1265
(1982). (“The only purpose that appellee advances for
§ 46-613.01 is to conserve and preserve diminishing sources
of ground water. The purpose is unquestionably legiti-
mate and highly important .. .”)
In the present case, the Court of Appeals held that
the contracts were not binding if they “pointed to a dif-
ferent water duty than a beneficial use inquiry would indi-
cate.” App. A, App. 1. As authority for its conclusion that
the execution of the contracts with 3 AFA limit did not
legally restrain the project water users to the duty for
which they contracted, the court relied on its perception
of a clear congressional directive in favor of beneficial
use in Section 8 of the 1902 Act, 43 U.S.C. §383. That
directive, in the view of the court, prohibited any contract
limit which provides less than a current view of the maxi-
mum potential beneficial use.
The Court of Appeals’ reliance on Section 8 overlooks
the congressionally endorsed administrative powers of the
Secretary. Those powers entitle the Secretary and the
water users to agree by contract to a water duty which
24
is less than the maximum permissible. In Colorado v. New
Mexico, — U.S. —, 74 L. Ed. 348, 357 (1982) this Court,
with regard to the allocation of water in an interstate
stream affirmed the need to consider whether “reasonable
conservation methods” would offset any injury to exist-
ing users of granting additional appropriations. It was
also considered appropriate to consider whether those seek-
ing new appropriations had “undertaken reasonable steps
to minimize the amount of diversion that will be required”.
Id."
Nevada statutes and case law also stress the need for
conservation. Nevada law provides that rights “to the use
of water shall be limited and restricted to so much thereof
as may be necessary, when reasonably and economically
used for irrigation and other beneficial uses. ...” NRS
033.060 (emphasis added). See, e.g., Roeder v. Stein, 23
Nev. 92, 42 P. 867 (1895); Doherty v. Pratt, 34 Nev. 343,
124 P. 579 (1912). Likewise, the 1926 contract between
TCID and the United States directs TCID and its users
“to secure the economical and beneficial use of irriga-
tion water” (emphasis added). In rejecting the contract
delivery requirements, the Ninth Circuit paid no heed
to these principles because it felt that Section 8 man-
dated a de novo examination of beneficial use and that
contract duties less than that must be rejected even
if such duties would result in water conservation. But
nothing in the Reclamation Act of 1902 or its history sug-
gests that the project waters users could not contract for
"Although the Supreme Court’s decision invokes princi-
ples of equitable apportionment, its concerns for the efficient
use of water is extracted from Wyoming v. Colorado, 259 U. S.
419, 484 (1922), which expressly relied upon principles of prior
appropriation.
25
water duties which provide for less than the maximum
potential beneficial use, particularly if the contract duty
was in keeping with state law and provided for the use of
less than the maximum amount of water.
Assuming arguendo that reformation of the contracts
may be justified upon a proper factual showing, that bur-
den is not met by a finding that the farmers could use or
have used in excess of the contract limits. Instead, re-
jection of the contract limits, if justified at all, should re-
quire a determination that no “reasonable conservation
methods” exist which would permit the farmers to main-
tain their current production levels under the contract
water duties. Here, the Ninth Circuit merely confirmed
the district judge’s determination that more water than
the contract limit could be beneficially used.
The Ninth Cireuit simply failed to heed the guidance
provided in Colorado v. New Mexico, supra, and elsewhere
on the weight to be given historical uses of water in de-
termining water rights. The need to conserve water means
that the mere historical use of water does not justify fail-
ing to employ all reasonable conservation methods in the
future. In a similar fashion, validly established contract
limits which would save water may not be ignored simply
because more water has been or may be used. At the very
least, those who wish to avoid such limits must be able to
demonstrate conclusively that no conservation methods
exist which would permit them to abide by such limits and
maintain historical production limits. That is a test which
the Newlands Project farmers have not been asked to sat-
isfy by either the district court or the Ninth Circuit.
3. The decision of Ninth Circuit is also worthy of
review because the rejection of the contract water duties
26
means that less water will be available for the endangered
and threatened species which reside in Pyramid Lake and
the lower reaches of the Truckee River. See pp. 5-6 and 12-
14, supra. Absent restoration of its fishery, the Tribe will
be unable to develop its Reservation as a permanent home-
land. This Court has recognized the “number of congres-
sional enactments demonstrating a firm federal policy of
promoting tribal self-sufficiency and economic develop-
ment.” White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 143 (1980). Destruction of the fishery also runs
counter to the established national policy of preserving
endangered and threatened species. See p. 14, supra.
Moreover, restoration of the Pyramid Lake fishery has
been the express concern of Congress. See note 6, supra.
The Ninth Circuit’s decision will make it far more
difficult to uphold these strong federal policies as they
relate to Pyran.: | Lake.
III. The Court’s Decision to Grant Primary Admin-
istrative Jurisdiction to the Nevada State Engineer Over-
looks Specific Congressional Directives Granting Such Au-
thority to the Secretary.
The Ninth Circuit agreed with the district court that
“applications for changes in place of diversion or manner
of use should be directed to the Nevada State Engineer,”
viewing these changes applications as of “limited signifi-
eance.” Again the court’s rationale was simple:
The Supreme Court has held, in California v. United
States, 438 U.S. 645 (1978), that state law will con-
trol the distribution of water rights to the extent there
is no preempting federal directive. We agree with
the district judge that “the conspicuous absence of
transfer procedures, taken in conjunction with the
27
clear general deference to state water law, impels the
conclusion that Congress intended transfers to be
subject to state water law.” App. A, App. 1. (citation
omitted. )
That conclusion overlooks the authority in the 1902
Reclamation Act, 43 U.S.C. $373, and elsewhere, e. g.,
43 U.S.C. $440, granting wide regulatory authority to
the Secretary over the operation of federal reclamation
projects. Although the Court of Appeals found language
in the legislative history of the 1902 Act extolling the vir-
tues of state engineers, it overlooked the later congression-
al pronouncement in 43 U.S. C. $389, granting the Secre-
tary authority “to enter into such contracts for the ex-
change or replacement ... of water rights ... or for the
adjustment of water rights, as in his judgment are nec-
essary and in the interest of the United States and the
Project.” Accordingly, specific congressional directives
exist giving extensive discretionary authority to the Sec-
retary relative to changes in the place and manner of use
of water rights on the project.
This matter is of considerable importance in the Truck-
ee-Carson basin. The Secretary’s operating criteria for
the Newlands Project, mandated by Pyramid Lake Paiute
Tribe of Indians v. Morton, supra, seek to protect federal
interests in the Truckee River (i. e., the flows required for
the Pyramid Lake fishery) by prohibiting any transfers
which enlarge project uses.
In short, Congress has directed the Secretary to mon-
itor changes in the place and manner of use of project
water rights. Reference to state law in considering the
impact of project changes on off-project, non-federal wa-
ter users is perhaps appropriate. So too, there is prob-
ably little justification for challenging the role assigned
28
here to the State Engineer in those limited issues. The
Secretary, however, is the proper party to decide issues
involving changes on the project which affect other fed-
eral interests, such as the need for water in the lower
reaches of the Truckee River and Pyramid Lake.
Although under reclamation law, considerable deference
is due state law and state procedures, Congress has pre-
served some prerogatives in the Secretary of the Interior.
See, e.g., California v. United States, 438 U.S. 645, 664 n.
19, 668 n. 21, 670-74 (1978). The Ninth Circuit's approval of
the district court’s grant to the State Engineer of primary
Jurisdiction over changes in project uses runs counter to
the language of 43 U.S.C. §389 which gives such author-
ity to the Secretary. This Court should review that de-
cision in order to protect the Secretary’s powers.
co)
CONCLUSION
For these reasons, this petition for leave to intervene
and petition for writ of certiorari should be granted.
Respectfully submitted,
Scott B. McE troy
Rosert S. PELCYGER
FrepericKs & PELCYGER
1007 Pear] Street, Suite 240
Boulder, Colorado 80302
(303) 443-1683
29
MicHaeL R. THorp
EISENHOWER, CARLSON, NEWLANDS,
Rena, Henniot & Quinn
1200 First Interstate Plaza
Tacoma, Washington 98402
(206) 572-4500
JEANNE S. WHITEING
Native American Rights Fund
1506 Broadway
Boulder, Colorado 80302
Attorneys for Petitioner
Pyramid Lake Paiute
Tribe of Indians
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 81-4084
D. C. No. D-183 BRT
UNITED STATES OF AMERICA,
Appellant,
VS.
ALPINE LAND & RESERVOIR CO.; TRUCKEE-
CARSON IRRIGATION DISTRICT; SIERRA-PACIFIC
POWER CO.; STATE OF NEVADA; and CERTAIN
UPPER CARSON RIVER WATER USERS,
Appellees.
Appeal from the United States District Court
for the District of Nevada
Honorable Bruce R. Thompson,
Senior United States District Judge, Presiding
Argued and Submitted: May 14, 1982
OPINION
(Filed January 24, 1983)
Before: KENNEDY, ALARCON, and NELSON, Circuit
Judges.
KENNEDY, Circuit Judge:
The Carson River runs eastward from the Sierra
Nevada range in California, through a part of Toiyabe
National Forest, and then to Lahontan Reservoir in cen-
tral Nevada, where it joins with water from the Truckee
River Diversion Canal. See United States v. Alpine Land
dé Reservoir Co., 431 F. 2d 763, 765-66 (9th Cir. 1970),
App. 2
cert, denied, 401 U.S. 909 (1971). Downstream from La-
hontan Reservoir lies the Carson Division of the New-
lands Project, whose farmers are mostly members of the
Truckee-Carson Irrigation District (TCID), one of ap-
pellees here. The Newlands Project on Nevada’s Carson
River was one of the first constructed under the Reclama-
tion Act of 1902, 32 Stat. 390, codified at 48 U.S.C. $371
et seq.
This suit was begun by the United States as a quiet
title action in 1925, although no final decision was ren-
dered until the decision of the district court in 1980, re-
ported at 503 F. Supp. 877 (D. Nev. 1980). This litiga-
tion is a “virtually comprehensive adjudication,” United
States v. Truckee-Carson Irrigation District, 649 F. 2d
1286, 1308 (9th Cir. 1981), of the rights of all parties to
the Carson’s waters, and much of the district court’s opin-
ion and extensive final order is not contested by any party.
On this appeal, the United States does argue that the water
duty awarded farms in the Newlands Project was too gen-
erous; that the Secretary of the Interior, rather than the
Nevada State Engineer, should have primary jurisdiction
over change applications; that the district court erred in
rejecting the United States’ claim of a reserved right of
instream flow for Toivabe National Forest; and that no
water duty for fishing and recreation at Lahontan reser-
vation should have been awarded. Amici Paiute Tribe,
Environmental Defense Fund, and Sierra Club agree with
the United States in whole or in part. Supporting the
decision are TCID, the State of Nevada, and Sierra Pacific
Power Company.' We uphold the decision of the district
1Certain upstream farmers have participated as appellees
in this suit, but their only interest is in defending the water
duty awarded them, which the United States does not chal-
lenge.
App. 3
court, for the most part, although we vacate the judgment
with reference to the water duty awarded for public recre-
ation pending more specific findings. We discuss the is-
sues seriatim.
I, Water Duty for Newlands Project Farmers
The district judge awarded a water duty of 3.5 acre-
feet/year (afa) to bottomland farmers, and 4.5 afa to
benchland farmers in the Newlands Project. The United
States and supporting parties argue that the district court
erred in making a de novo determination of beneficial use.
The Government argues that the district court instead
should have ruled in reliance on contracts executed by the
Department of the Interior and some landowners which
purport to limit the water duty to a maximum of 3 afa,
or alternatively on a 1903 Nevada statute, passed after
the priority date of the Newlands Project, which limited
beneficial use to 3 afa until it was repealed in 1905. The
United States also argues that the findings of the district
court on beneficial use were inadequate. We reject these
contentions.
Our starting point is section 8 of the Reclamation Act
of 1902, 32 Stat. 390, now codified at 48 U.S.C. § 372
(1976), which states:
The right to the use of water acquired under the pro-
visions of this Act shall be appurtenant to the land
irrigated, and beneficial use shall be the basis, the
measure, and the limit of the right.
By the terms of the statute, beneficial use is the “basis”
and “measure” as well as the “limit” of water rights; it
sets the maximum water duty, but, under the statute, it is
also the necessary rationale and source of the right. This
App. 4
determination by Congress is explained both by the his-
torical significance of the beneficial use concept in West-
ern water law, and by the absence of any other intelligible
standard offered by these parties to measure water rights.
The legislative history of the 1902 Reclamation Act
makes clear that the “principles underlying and govern-
ing water rights” under the Act were to be the existing
beneficial use concepts of western water law. 35 Cong.
Rec. 6677 (1902) (remarks of Rep. Mondell). Section 8
“clearly recognizes the rule of prior appropriation which
prevails in the arid region, and, what is highly important,
specifies the character of the water right which is pro-
vided for under the provisions of the act.” Jd. at 6678.
Rep. Mondell went on to describe the manner in which
a water duty would vest:
The main line canals having been constructed by the
Government, the entryman or landowner would pro-
ceed to the construction of such laterals as were neces-
sary for the irrigation of his own tract and the prep-
aration of the same to receive the water. The water
having been beneficially applied and payments hav-
ing been made under the provisions of the bill, the
water right would become appurtenant to the land
irrigated and inalienable therefrom. The water rights
provided by the act are of that character which irri-
gation experience has demonstrated to be the most
perfect.
The settlor or landowner who complies with all the
conditions of the act secures a perpetual right to the
use of a sufficient amount of water to irrigate his
land, but this right lapses if he fails to put the water
to beneficial use. ...
Id. at 6679. While there were provisions of federal law
which were intended to displace state law, such as the
App. 5
160-acre limit at issue in United States v. Tulare Lake
Canal Co., 677 F. 2d 713 (1982), beneficial use itself was
intended to be governed by state law. See Remarks of
Rep. Mondell, supra; 35 Cong. Ree. 2222 (1907) (remarks
of Sen. Clark); California v. United States, 438 U.S. 645
(1978). We do not deny or overlook the differences in
water law among the various western states. However,
on the point of what is beneficial use the law is “oreneral
and without significant dissent.” 1 Waters and Water
Rights $19.2 at 85 (R. Clark ed. 1967). Therefore, un-
less it is shown that a state applies a special rule of law
on a relevant point, it is proper to apply general law in
defining beneficial use.
We briefly review these general principles here. The
major conceptual tool for implementing beneficial use is
the water duty, which is the amount of water an appropri-
ator is entitled to use, including a margin for conveyance
loss. This definition of “water duty” is often quoted:
It is that measure of water, which, by careful manage-
ment and use, without wastage, is reasonably required
to be applied to any given tract of land for such period
of time as may be adequate to produce therefrom a
maximum amount of such crops as ordinarily are
grown thereon. It is not a hard and fast unit of
measurement, but is variable according to conditions.
Farmers Highline Canal & Reservoir Co. v. City of Golden,
129 Colo. 575, 584-85, 272 P. 2d 629, 634 (1954); see also
Basin Electric Power Cooperative v. State Board of Con-
trol, 578 P. 2d 557, 564 (Wyo. 1978): State ex rel. Rey-
nolds v. Mears, 86 N.M. 510, 515-16, 525 P. 2d 870, 875-76
(1974); 1 Waters and Water Rights $$ 19.2-19.5 at 85-93
(1972) ; 5 zd. $408.2 at 79-80 (R. Clark ed. 1967).
App. 6
There are two qualifications to what might be termed
the general rule that water is beneficially used (in an ac-
cepted type of use such as irrigation) when it is usefully
employed by the appropriator. First, the use cannot in-
clude any element of “waste” which, among other things,
precludes unreasonable transmission loss and use of cost-
ineffective methods. See, e.g., State ex rel. Erickson v.
McLean, 62 N.M. 264, 271, 308 P. 2d 983, 987 (1957);
Glenn Dale Ranches, Inc. v. Shaub, 94 Idaho 585, 588, 494
P. 2d 1029, 1031-32 (1972); 1 Waters and Water Rights
§§ 19.2, 19.5 at 87, 91-92 (R. Clark ed. 1967). Second, and
often overlapping, the use cannot be “unreasonable” con-
sidering alternative uses of the water. In Vineyard Land
& Stock Co. v. Twin Falls Salmon River Land & Water
Co., 245 F. 9, 22-25 (9th Cir. 1917), although application
of additional water over the water duty awarded by the
district court would provide some benefit to the appropri-
ator, we upheld the district court’s water duty because
the gain was so small (compared to the amount of water
necessary to bring it forth) that the additional increment
of water would not be “economically applied.” Jd. at 24.
See also In re Water Rights of Deschutes River & Its
Tributaries, 134 Or. 623, 664-68, 286 P. 563, 577-78 (1930)
(use of water to carry off debris in aid of power genera-
tion not allowed in irrigation season when the same water
would otherwise irrigate 1600 acres); Tulare Irrigation
Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. 2d 489, 567-
68, 45 P. 2d 972, 1007 (1935) (use of water by farmers to
drown gophers not allowed in area with chronic water
shortage). See generally Trelease, The Concept of Rea-
sonable Beneficial Use in the Law of Surface Streams, 12
Wyo. L. J. 1, 14-17 (1956).
App. 7
The United States and supporting amici argue that
the district court should have given decisive significance
to contracts limiting the water duty to 3 afa which the
Secretary of the Interior executed with some but not all
landowners. We are also told all of the Newlands Project
is limited to a 3 afa water duty by virtue of 1903 Nevada
Stats., Chap. IV, § 2:
the quantity of water which may be appropriated or
used for irrigation purposes in the State of Nevada
{is limited to] three acre feet per year for each acre
of land supplied.
The district court was not bound by either the contracts
or the 1903 Nevada statute if either pointed to a different
water duty than a beneficial use inquiry would indicate.
As for the contracts, the provision of section 8 mandating
a beneficial use standard is a “specific congressional di-
rective” which acts as a “restraint upon the Secretary.”
See California v. United States, 438 U.S. 645, 678 n. 31
(1978); Foz v. Ickes, 137 F. 2d 30 (D.C. Cir.), cert. de-
nied, 320 U.S. 792 (1943); Lawrence v. Southard, 192
Wash. 287, 73 P. 2d 722 (1937).
The district judge found that under the Nevada “re-
lation back” doctrine, the 1903 statute did not affect the
Project farmers’ rights which had vested in 1902. We
do not find this decision of the district court on the law
of its own state incorrect. Even assuming the Nevada
statute provided a measure other than beneficial use, the
limit would be ineffective in view of the binding “congres-
sional directive” that “the water right must be . . . gov-
erned by beneficial use.” California v. United States, 438
U.S. 645, 668 n. 21 (1978).
App. 8
The United States and amici argue that, even if bene-
ficial use is the measure, the contracts and Nevada law
are compelling evidence of beneficial use. Although we
reject the conclusion the United States wants, we do not
hold that the Secretary’s contracts were ultra vires when
made, or that the Nevada statute (assumed for the =no-
ment to be applicable) stated a limitation inconsistent with
beneficial use as of 1903. This is not the question before
us. The issue we review is whether the district court
reached a correct determination of beneficial use as of
1980. It is settled that beneficial use expresses a dynamic
concept, which is a “variable according to conditions,”
Farmers Highline Canal, 129 Colo. at 585, 272 P. 2d at
534, and therefore over time, see United States v. Fall-
brook Public Utility District, 347 F. 2d 48, 58 (9th Cir.
1965) ; T'uare Irrigation Dist. v. Lindsay Strathmore Irri-
gation Dist., 3 Cal. 2d 489, 567, 45 P. 2d 972, 1007 (1935) ;
Basin Electric Power Cooperative v. State Board of Con-
trol, 578 P. 2d 557, 563 (Wyo. 1978). As counsel for the
United States argued before the district court, “we are
fortunate that this case has dragged along so long, because
we know more about the Carson Valley than we did origi-
nally.” 1979 Record, Vol. I at 16. All parties presented
evidence aimed at identification of current beneficial use,
as a matter of fact. The district court, in the absence of
any earlier administrative or judicial determination of
beneficial use, was correct to find beneficial use as of the
present time, as shown by the best available current in-
formation.’
?Amicus Paiute Tribe suggests that this holding will cause
uncertainty and instability in water law. We find the law to be
(Continued on next page)
App. 9
In the circumstances, it is clear the district court did
not err in giving the contracts and the Nevada statute
relied on by the United States little evidentiary signifi-
cance. The United States has made no consistent deter-
mination that 3 afa is the maximum water duty that could
be beneficially used by the Project farmers. Indeed, it
appears that one landowner would sign a contract contain-
ing a 3 afa limit, while others, identically situated, signed
contracts promising all the water needed for “proper irri-
gation.” An administrative determination which is not
consistently maintained is entitled to little, if any, defer-
ence. See County of Washington, Oregon v. Gunther, 452
U.S. 161, 177-78 (1981) ; United Housing Foundation, Inc.
v. Forman, 421 U.S. 837, 858 n.25 (1975). We further
note the evidence showed that the 3 afa contracts were
never enforced; historically, no distinction was made be-
tween landowners with and without the limiting contracts.
The district judge did not err in giving little weight to
the scattered contracts with 3 afa limits in the context of
a case in which ample expert evidence of actual present
beneficial use was heard.
For similar reas: s, the district court did not err in
ignoring the 3 afa lint of the 1903 Nevada statute. The
(Continued from previous page)
clear on this point; in the absence of a conclusive determina-
tion of water duty by administrative or judicial proceedings, a
district court in a quiet title action should determine beneficial
use on the best current evidence available. The holding of the
district court in this case, which we affirm, does not interfere
with settled expectations, since the water duty awarded is in
accord with actual historical use of the Carson’s waters by the
Project farmers. It is actual use which, if reasonable, is eviden-
tiary of “beneficial use,”” not unenforced contracts or limits set
by a repealed state law.
App.. 10.
Nevada statute has been repealed for many years. Testi-
mony before the district court indicated that water duties
of more than 3 afa are common in Nevada. We agree that
the statute’s repeal “represents a legislative judgment that
a specific limitation was ill-advised under the varying con-
ditions of climate and soil in Nevada.” 503 F. Supp. at 886.
The United States also contends that the findings of
the district court on beneficial use were not adequate. It
is true that findings must be “explicit enough to give the
appellate court a clear understanding of the basis of the
trial court’s decision, and to enable it to determine the
ground on which the trial court reached its decision.”
South-Western Publishing Co. v. Simons, 651 F. 2d 653,
655 (9th Cir. 1981), cert. denied, — U.S. —, 102 S. Ct. 1714
(1982), quoting Alpha Distributing Co. of California v.
Jack Daniels Distillery, 454 F. 2d 442, 453 (9th Cir. 1972),
cert. denied, 419 U.S. 842 (1973). The opinion of the dis-
trict judge fulfilled this requirement. In light of the ree-
ord, we can readily understand the grounds of the district
court’s opinion; all issues raised were intelligibly dealt
with by the district court.
The United States does not squarely argue that the
district court made any legal errors in finding beneficial
use.’ One of the Government’s arguments, however, might
sThe United States argues that the district court’s decision
was corrupted by an erroneous belief that the water rights in
question were “owned” by the Newlands Project farmers, sub-
ject only to the “lienholder” interest of the United States in re-
payment of project costs. We do not see the relevance of this
premise to the issue of beneficial use. The United States’ inter-
est in the determination of a user’s water duty, as declared by
the statute, is to see that beneficial use is its measure and limit.
Any interest of the United States in other aspects of the project
can hardly affect the beneficial use inquiry.
App. 11
be interpreted as arguing that the district court erred in
defining beneficial use as the amount of water which would
yield “maximum crop yields,” rather than that amount
which, “economically applied,” would produce “historical
yield” over most of the past 26 years. This contention
fails because the case, as argued to the district court, pre-
sented a factual dispute rather than a legal one. The bene-
ficial use controversy here was essentially a question of
fact, and all parties proceeded in accordance with well-
settled general principles to determine it. There was un-
contradicted testimony that the water duty awarded by
the district court has been customarily provided the farm-
ers since before 1926, when TCID began operation of ihe
Newlands Project. This has also been the water guaran-
teed the Newlands Project farmers under the Orr Ditch
decree. The Orr Ditch decree governs the Truckee’s wa-
ters, which, by means of the Truckee River Division Canal,
join with the Carson’s waters at Lahontan Reservoir. See
generally United States v. Truckee-Carson Irrigation Dis-
trict, 649 F. 2d 1286 (9th Cir. 1981). TCID’s evidence
tended to show this historical water usage was reasonable.
The United States’ evidence tended to show that historical
yields could be obtained with less water. Once the district
court corrected for the fact that the United States’ expert
used alfalfa yields obtained in lysimeters rather than those
obtained under necessarily less meticulous field conditions,
and for the fact the United States’ expert used yields over
the past 26 years rather than the significantly higher pro-
duetion of the past 10 vears as a benchmark, the evidence
App. 12
presented by the United States was in broad agreement
with that presented by TCID.* See 503 F. Supp. at 888.
Neither the United States nor the Paiute Tribe argues
that the district court’s findings were clearly erroneous.
Amicus Paiute Tribe does suggest that we should find
waste by virtue of the comment of this court in United
States v. TCID, 649 F. 2d at 1311, that “the Newlands
Project is relatively inefficient in its use of water.” This
comment was not based on any factfinding by our court
or by the court below, and it cannot substitute for evidence
of the existence and extent of waste or inefficiency before
the trial court. There was credible evidence below to indi-
cate the contrary: that a reduction to the 3 afa water duty
sought after by the United States would drastically reduce
the farmers’ yields over the long term. Yield was cor-
related with water use in a linear relation over the rele-
vant water levels. Agricultural yields are a significant
and reliable guide in determining beneficial use.
Findings of a district judge, made in reliance on con-
troverted expert testimony, will not be disturbed unless
clearly erroneous. Twin City Sportservice, Inc. v. Charles
O. Finley & Co., Inc., 365 F. Supp. 235 (N. D. Cal. 1982).
The Supreme Court has only recently emphasized our nar-
‘Thus, contrary to the argument of the United States, the
district court did not rest on the conclusory statement that
TCID’s expert evidence was “more credible” than that so vig-
orously put forward by the United States. Indeed, in determin-
ing consumptive use (the actual amount used by the growing
crop, leaving aside transmission losses), the district court used
the figure argued for by the United States’ expert, with the two
corrections noted. No one has argued that the 2.99 afa con-
sumptive use figure found by the district court on the basis
of the United States’ evidence was inconsistent with the water
duties awarded by the district court.
App. 13
row scope of review when we review a factual determina-
tion of a district court that does not evince any misappre-
hension of relevant legal standards. See Inwood Labora-
tories, Inc. v. Ives Laboratories, Inc., — U.S. —, 102 S. Ct.
2182, 2188 (1982). Our review of the record indicates
there was ample evidentiary support for the decision of
the trial court that 3.5 afa was an appropriate water duty
for bottomlands, and 4.5 afa for benchlands, with their
lower water table and drier soil. Since the district court
made no legal error in defining beneficial use, and its
factual findings were well within a permissible view of
the weight of the evidence, the water duty awarded the
Project farmers must be upheld.
II. Primary Administrative Jurisdiction With
the Nevada State Engineer
The district judge held that applications for change
in place of diversion or manner or place of use should be
directed to the Nevada State Engineer. These change
applications are of limited significance in that they only
seek permission to use water already appropriated for a
purpose different than that originally designated. For
example, if a farmer were to change his manner of irriga-
tion, or to subdivide his farm into residential properties,
under the district court’s order, the Nevada State Engi-
neer would decide, under the state statutory scheme,
whether the application would “tend to impair the value
of existing rights or to be otherwise detrimental to the
publie welfare.” Nev. Rev. Stat. § 533.370(1).
The United States is not concerned with the routine
change application, but with the possibility that federal
interests will be ignored by the Nevada State Engineer.
App. 14
Under section 8 of the 1902 Reclamation Act, discussed
Supra, appropriated water must be applied to irrigation;
it cannot be severed as a commodity for use on land to
which it would not be appurtenant. As described by Rep.
Mondell, a water right under the Reclamation Act “only
extends to the use of the water on and for the tract orig-
inally irrigated”; there is no general “property right in
water with power to sell and dispose of the same elsewhere
and for other purposes than originally intended.” 35
Cong. Rec. 6679 (1902).
We agree with the district judge that the notice and
protest procedures of Nevada law are adequate to allow
exploration of these issues, when they arise, before the
state engineer. The Supreme Court has held, in California
v. United States, 488 U.S. 645 (1978), that state law will
control the distribution of water rights to the extent that
here is no preempting federal directive. We agree with
the district judge that “the conspicuous absence of trans-
fer procedures, taken in conjunction with the clear general
deference to state water law, impels the conclusion that
Congress intended transfers to be subject to state water
law.” 503 F. Supp. at 884. Powerful support for this
conclusion is found in the legislative history of the 1902
Reclamation Act:
The conditions in each and every State and Territory
are different. What would be applicable in one lo-
cality is totally and absolutely inapplicable in another.
The conditions that prevail at 7,000 feet of altitude are
different from those that prevail at almost sea level.
In each and every one of the States and Territories
affected, after a long series of experiments, after a
due consideration of conditions, there has arisen a set
of men who are especially qualified to deal with local
conditions.
App. 15
Everyone of these States and Territories has an ac-
complished and experienced corps of engineers who
for years have devoted their energies and their learn-
ing to a solution to the problem of irrigation in their
individual localities.
30 Cong. Ree. 2222 (1902) (remarks of Sen. Clark). Cf.
Colorado River Water Conservation District v. United
States, 424 U.S. 800, 819-20 (1976) (discussing a similar,
but later, congressional recognition in the MeCarran
amendment). We are assured that the United States will
receive notice of each change application, and may partici-
pate, under Nev. Rev. Stat. §§ 533.110, 533.130, in proceed-
ings before the state engineer who is, under our Constitu-
tion, bound to follow federal law. The decree of the dis-
trict court also allows for appeal of change applications
to the federal district court for the District of Nevada,
and no appellee contests this provision. These two safe-
guards provide full vindication of the admitted federal
interests in the operation of federal reclamation projects.
Fundamental principles of federalism require the na-
tional government to consult state processes and weigh
state substantive law in shaping and defining a federal
water policy. California v. United States, 438 U.S. 645
(1978).
III. Totyabe National Forest
The district court rejected the United States’ argu-
ment that it was entitled to a water duty of instream flow,
reserved by implication when the affected portion of the
Toiyabe Natioual Forest was created by statute. See
Winters v. United States, 207 U.S. 564, 577 (1908); Ari-
zona v. California, 373 U.S. 546, 597-98 (1963) ; Cappaert
App. 16
v. United States, 426 U.S. 128, 143-46 (1976) ; United States
v. New Mezico, 438 U.S. 696 (1978).
As we understand it, the district court ruled, 503 F.
Supp. at 893, that the United States would have been en-
titled to a reserved right if it had shown that the right
was “necessary to preserve the timber or to secure favor-
able water flows for private and public uses under state
law.” United States v. New Mezico, 438 U.S. at 718: see
also td. at 724-25 (Powell, J.. dissenting in part).
The district court held, however, that the United
States did not meet this standard. “The evidence to sup-
port the assertion that maintenance of such minimum flows
is necessary for watershed protection or timber produce-
tion... was insignificant.” 503 F.Supp. at 893.
We first find it necassary to discuss the nature of a
reserved instream flow right. It appeared from the evi-
dence presented below that since the sought-after right is
one of instream flow only and not of diversion, awarding it
would not harm downstream interests. The only result
of recognizing a reserved right of instream flow will be
to restrict upstream diversion by appropriators with a
later priority date than the date of dedication of the na-
tional forest. It is possible that such upstream diversion
might one day threaten, but the United States did not dem-
onstrate that the water rights of existing downstream
interests in the Carson’s water would not suffice to pro-
tect the banks of the Carson’s tributaries within the forest
from erosion. In fact, in a colloquy with Judge Thompson
below, counsel for the United States agreed that “the pos-
sibility that someone else will come in and take water for
the detriment of those existing [instream] flows” was
App, 17
avoided “by making a finding that all the waters of the
Carson River and its tributaries have been fully appro-
priated.” Moreover, the United States’ evidence of what
average instream flows were fell far short of a demon-
stration that the instream flow was necessary to fullfill-
men of the purposes of the forest. Cf. Avondale Irr. Dist.
v. North Idaho Properties, Inc., 99 Idaho 30, 39, 577 P. 2d
9, 18 (1978); Boles & Elliott, United States v. New Mexico
and the Course of Federal Reserved Water Rights, 51 Colo.
L. Rev. 209, 229 (1978). The district judge did not err
* _—
in rejecting the United States’ claim for a reserved water
right with respect to the parties in this litigation.
IV. A Water Duty for Recreation at Lahontan
Reservation
The district court in its opinion took judicial notice
of the fact that fishing and public recreation have taken
place on Lahontan Reservoir virtually since the construc-
tion of the dam. Thus, the water has been beneficially used
and the United States has not abandoned or forfeited these
rights. 503 F. Supp. at 883. The district court thus awarded
a water duty of 30,000 acre-feet for such activities, find-
ing that the evidence indicated this was the “minimum
amount of water that must be retained in the reservoir
to support the fish habitat and provide swimming and
boating areas.” Jd. at 889. It is not clear to us what evi-
dence the court relied upon in this respect. Certainly no
party presented evidence to establish a specific, public
recreational right. The United States did not seek this
water duty, and on appeal argues that it is erroneous, as
do amici and TCID.
We are unwilling to accept as determinative the agree-
ment of the parties that no such water duty is proper.
App. 18
Those taking advantage of these recreational opportuni-
ties were not parties, or at most, were represented most
grudgingly and inadequately by the United States.
While the district court found that “the public” could
gain rights to a reclamation project reservoir by continu-
ous beneficial use under state law, 503 F. Supp. at 883,
whether water rights for public recreation are permissible
under the Reclamation Act has not been briefed or dis-
cussed. We are also unsure of the necessity for the non-
consumptive water duty awarded by the district court.
Fishing and recreation have been consistently enjoyed,
notwithstanding the absence of any formally awarded
water duty; since the waters of the Carson are fully ap-
propriated, we do not foresee how the public’s recreational
benefits can be threatened by any new use. In this re-
spect, the water duty awarded the public for instream use
resembles the guarantee of instream flow the United
States unsuccessfully sought for Toiyabe National Forest.
Assuming for the moment that such a water duty is proper
in principle, we are not sure the district court had an ade-
quate factual basis for awarding the precise water duty
chosen. We therefore vacate the portions of the district
court’s order pertaining to a water duty for public recre-
ation.
The district court maintains jurisdiction over this mat-
ter. See Hamilton v. Nakai, 453 F. 2d 152, 155-58 (9th
Cir.), cert. denied, 406 U.S. 945 (1972). “A district court’s
equitable discretion is characterized by flexibility, the
need for practicality, and the duty to reconcile the public
interest with private needs.” Harjo v. Andrus, 581 F. 2d
949, 952 (D.C. Cir. 1978). We therefore leave it to the
App. 19
determination of the district court to state an orderly
resolution of the legal propriety (and if necessary, the
factual extent) of a water duty for public recreation. The
district court need not allow the issue to lie unresolved;
if the United States is unwilling to represent the public,
anyone with standing who can adequately represent the
publie’s interest may be allowed to do so. Warth v. Seldin,
422 U.S. 490, 501 (1975).
We do hold that, contrary to the final decree of the
district court, any water duty for public recreation that
is awarded must be subordinate to the agricultural needs
of the Newlands Project farmers. The Lahontan Reser-
voir, as a project built under the federal Reclamation Act,
was intended for the primary benefit of the farmers who
would use its waters for irrigation, and any beneficial use
of the reservoir by way of recreation could only be in-
cidental to that purpose. See Jicarilla Apache Tribe v.
United States, 657 F. 2d 1126, 1138 (10th Cir. 1981).
CONCLUSION
The district judge awarded a proper water duty to
the Newlands Project farmers, properly refused to award
a reserved water right of instream flow for Toiyabe Na-
tional Forest, and properly recognized the primary ad-
ministrative jurisdiction of the Nevada State Engineer
over change applications. We vacate the water duty
awarded the United States, for the benefit of fishing and
recreation, pending further proceedings on the important
legal and factual issues implicit in the matter.
AFFIRMED AS MODIFTED.
App. 20
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 81-4084, 81-4116
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VS.
ALPINE LAND & RESERVOIR CO., et al.,
Defendants-A ppellees.
ORDER
(Filed April 1, 1983)
Appeal from the United States District Court
for the District of Nevada
Before: Kennepy, ALArcon, and Netson, Circuit Judges.
The petition of the Pyramid Lake Paiute Tribe of
Indians for intervention, or in the alternative for substi-
tution, is denied.
App. 21
APPENDIX C
PYRAMID LAKE PAIUTE TRIBE OF INDIANS,
Plaintiff,
Vs.
Rogers C. B. MORTON, Secretary of the Interior,
Defendant.
Civ. A. No. 2506-70.
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA.
Nov. 8, 1972.
As Amended Noy. 29, 1972.
Supplemental Opinion Feb. 20, 1973.
Indian tribe brought action challenging regulation is-
sued by the Secretary of the Interior with respect to di-
version of water from river flowing into reservation, and
seeking a declaration of rights and affirmative injunctive
relief. The District Court, Gesell, J., held, inter alia, that
where suit brought by Indian tribe was pending and tril:e
had asserted wellfounded rights in waters flowing into
reservation and feeding lake upon which tribe depended
for its livelihood, it was not the function of the Secretary
of the Interior in determining how much water could be
diverted for irrigation purposes prior to reaching the res.
ervation, under applicable court deerees and contract with
irrigation district, to attempt an accommodation based on
a ‘judgment eall”; rather, burden rested on the Secretary
to justify with precision any diversion of water from the
tribe and to insure, to the extent of his power, that all
App. 22
water not obligated by court decree or contract with the
district go into the lake.
Order accordingly.
l. Indians
Where the Secretary of the Interior, prior to issu-
ance of regulation specifying how much water could, under
court decrees and contract with irrigation district, be
diverted from river prior to point where it flowed into
Indian reservation and fed lake relied upon by many In-
dians for their livelihood, had before him various written
recommendations from interested agencies and experts but
did not accept any particular recommendation, and where
record, in action by Indian tribe challenging the regula-
tion, was devoid of any explanation or indication of fac-
tors taken into account, the Government failed to meet
its burden of establishing that the Secretary’s decision
was anything but arbitrary. 5 U.S.C.A. § 706.
». Indians
Where suit brought by Indian tribe was pending and
tribe had asserted well-founded rights in waters flowing
into reservation and feeding lake upon which tribe de-
pended for its livelihood, it was not the function of the
Secretary of the Interior in determining how much water
could be diverted for irrigation purposes prior to reaching
the reservation, under applicable court decrees and con-
tract with irrigation district, to attempt an accommodation
based on a ‘‘judgment call’’; rather, burden rested on the
Secretary to justify with precision any diversion of water
from the tribe and to insure, to the extent of his power,
App. 23
that all water not obligated by court decree or contract
with the district go into the lake. 5 U.S.C.A. § 706.
3. Indians
The conduct of the United States as disclosed in the
acts of those who represent it in dealings with Indians,
should be judged by the most exacting fiduciary standards.
20 U.S.C.A. §§ 174, 476; 43 U.S.C.A. § 614e.
4. Indians
Government undertakings with Indians are to be lib-
erally construed to the benefit of the Indians.
5. Indians
It was not enough for the United States to assert
water and fishing rights of Indian tribe by filing suit in
the United States Supreme Court; rather, the Secretary
of the Interior in authorizing diversion, pursuant to court
decrees and contract with irrigation district, of waters
which would otherwise flow into reservation was obliged
to exercise his statutory and contractual authority to the
fullest extent possible in recognition of his fiduciary duty
to the tribe and to formulate a closely developed regula-
tion that would preserve water for the tribe.
6. Indians
Where diversion of water from river which flowed in-
to Indian reservation was governed by two overlapping
court decrees, the Secretary of the Interior, in promulgat-
ing a regulation governing the amount of diversion for a
particular year, was obliged to take both decrees into ac-
App. 24
count rather than to rely solely on the larger quantities
provided by one of the decrees. 5 U.S.C.A. § 706.
7. Indians
In light of trust responsibilities of the Secretary of
the Interior to Indian tribe, and under contract between
Secretary and irrigation district giving the Secretary
right to require the district to conduct its affairs in a
nonwasteful manner, failure in regulation specifying
amount of water which could be diverted to irrigation
district from river at point before river flowed into res-
ervation and fed lake upon which tribe depended for its
livelihood to take adequate steps to prevent improper and
wasteful use of diverted water constituted agency action
unlawfully withheld and unreasonably delayed, within
statute authorizing court to compel such agency action.
5 U.S.C.A. § 706(1).
8. Indians
In promulgating regulation pursuant to court decrees
and under contract with irrigation district specifying
amount of water which could be diverted during year to
the district from river which flowed into Indian reserva-
tion and fed lake upon which Indians depended for their
livelihood, the Secretary of the Interior was obliged, in
light of his trust responsibilities to tribe, to provide ef-
fective means, as authorized by his contract with the dis-
trict, to measure water use, minimize unnecessary waste
and delivery of water to land not entitled under the de-
crees, and to assure complianee hy the district.
App. .25
9. Indians
Where management of waters stored in reservoir
would have effect on amount of water received by lake
in reservation on which Indian tribe depended for their
livelihood, ambiguous contract between the Bureau of Ree-
lamation and the United States Forest Service with re-
spect to the reservoir, made without consultation with the
tribe, could not be interposed as an obstacle to the lake
receiving the maximum benefit from the reservoir which
might be available under reasonable and proper interpre-
tation of court decrees; in this respect, the trust obliga-
tions of the Secretary of the Interior to the tribe were
paramount. 5 U.S.C.A. § 706.
10. Indians
New construction programs to be financed with Gov-
ernment funds not yet appropriated, effective several years
in the future, would not suffice to satisfy trust obligations
of the Secretary of the Interior to assure delivery of suf-
ficient water to lake within Indian reservation to maintain
level of lake, nor obligation to comply with applicable court
decrees. 5 U.S.C.A. § 706.
Robert S. Peleyger, Boulder, Colo., Robert D. Stitser,
Reno, Nev., Reid Peyton Chambers, Los Angeles, Cal., L.
Graeme Bell, III, Washington, D.C., for plaintiff.
Donald W. Redd, Douglas N. King, Department of
Justice, Washington, D.C., for defendant.
fo)
App. 26
MEMORANDUM OPINION
GESELL, District Judge.
This is an action by a recognized Indian tribe challeng-
ing a regulation issued by the Secretary of the Interior.
‘he matter came before the Court for trial without a jury
following an extended period of pretrial activity during
which issues were narrowed and efforts to resolve the con-
troversy by negotiation failed. Claiming that the regula-
tion should be set aside as arbitrary, capricious, and an
abuse of the Secretary's authority, the Tribe invokes appli-
cable provisions of the Administrative Procedure Act, 5
U.S.C. § 706. A declaration of rights and affirmative in-
Junetive relief is also sought on the ground the Secretary
has unlawfully withheld and unreasonably delayed required
actions, 5 U.S. C. § 706(1).
The Court’s jurisdiction to review the challenged regu-
lation under the Administrative Procedure Act is not con-
tested. The Tribe is an aggrieved party directly affected
by the regulation and is proceeding in good faith. The
controversy is ripe and immediate. All administrative rem-
edies have been exhausted and the Secretary’s action is
final.
he regulation was signed by the Secretary on Sep-
tember 14, 1972, appears in the Federal Register, 37 Fed.
Reg. 19838, and became effective November 1, 1972. It is
designed to implement pre-existing general regulations!
by establishing the basis on which water will be provided
'43 C.F. R. § 418 (1972).
App. 27
during the succeeding twelve months to the Truckee-Carson
Irrigation District, which is located in Churchill County,
Nevada, some 50 miles east of Reno. The Tribe contends
that the regulation delivers more water to the District than
required by applicable court decrees and statutes, and im-
properly diverts water that otherwise would flow into
nearby Pyramid Lake located on the Tribe’s reservation.
This Lake has been the Tribe’s principal source of
livelihood. Members of the Tribe have always lived on
its shores and have fished its waters for food. Following
directives of the Department of Interior in 1859, which were
confirmed by Executive Order signed by President Grant
in 1874, the Lake, together with land surrounding the Lake
and the immediate valley of the Truckee River which feeds
into the Lake, have been reserved for the Tribe and set
aside from the public domain. The area has been con-
sistently recognized as the Tribe’s aboriginal home. See
United States v. Sturgeon, 27 F. Cas. 1357, No. 16,413 (D.
Nev. 1879), aff’d, 27 F. Cas. 1358; United States v. Walker
River Irr. Dist., 104 F. 2d 334 (9th Cir. 1939).
Recently, the United States, by original petition in the
Supreme Court of the United States, filed September, 1972,
claims the right to use of sufficient water of the Truckee
River for the benefit of the Tribe to fulfill the purposes
for which the Indian Reservation was created, “including
the maintenance and preservation of Pyramid Lake and
the maintenance of the lower reaches of the Truckee as
a natural spawning ground for fish and other purposes
beneficial to and satisfying the needs” of the Tribe. United
States v. States of Nevada and California, (No. 59 Original,
October Term 1972), complaint at 14.
App. 28
Appended to this Memorandum Opinion is a map which
shows the available sources of water supply in relationship
to Pyramid Lake and the District. The area involved is
a water shortage area characterized by seasonal and yearly
variations in available supply. Beneficial irrigation for
farming and other uses within the District are accommo-
dated through some 600 miles of main water ditches and
drains and the water is ultimately parcelled out through
1,500 delivery points. The water fed into this system comes
from the Carson River following storage in Lahontan Res-
ervoir and by diversion of water from the Truckee River
at Derby Dam where it passes through the Truckee Canal
to be stored in the Lahontan Reservoir for subsequent or
simultaneous release. The Secretary entered into a con-
tract with the District in 1926 and this contract is still in
effect (Def. Ex. 2).
As the map so clearly shows, any water diverted from
the Truckee at Derby Dam for the District is thereby pre-
vented in substantial measure from flowing further north
into Pyramid Lake. The Lake is a unique natural resource
of almost incomparable beauty. It has no outflow, and
as a desert lake depends largely on Truckee River inflow
to make up for evaporation and other losses. It is approxi-
mately five miles wide and twenty-five miles long and now
has a maximum depth of 335 feet. Although the Lake has
risen a few feet in recent years, it has dropped more than
70 feet since 1906. A flow of 385,000 acre feet of water
per year from the Truckee River into the Lake is required
merely to maintain its present level. The decreased level
and inflow have had the effect of making fish native to
the Lake endangered protected species, and have unsettled
the erosion and salinity balance of the Lake to a point
App. 29
where the continued utility of the Lake as a useful body
of water is a hazard.’
The regulation under attack is the most recent of a
series of regulations issued from year to year since 1967
pursuant to general policies established by the Secretary
(see 43 C. F. R. Part 418 (1972) and Def. Ex.3). The Tribe
contends that the Secretary’s action is an arbitrary abuse
of discretion in that the Secretary has ignored his own
guidelines and failed to fulfill his trust responsibilities to
the Tribe by illegally and unnecessarily diverting water
from Pyramid Lake.
The focus of the inquiry has been to determine whether
the 378,000 acre feet of water which the regulation contem-
plates will be diverted from the Truckee River at Derby
Dam may be justified on a rational basis. This determina-
tion must be made in the light of three major factors which
necessarily control the Secretary’s action: namely, the Sec-
retary’s contract with the District, certain applicable court
decrees, and his trust responsibilities to the Tribe. The
Secretary and the Tribe are in substantial agreement that
these are the factors to be weighed. The issue, therefore,
comes down to whether or not the Secretary’s resolution
of conflicting demands created by these factors was ef-
fectuated arbitrarily rather than in the sound exercise of
discretion.
The Court has carefully reviewed the processes by
which the Secretary arrived at the disputed regulation.
?Native fish which naturally spawn in the Truckee can no
longer do this and the Lake must be stocked at least until 1974
when construction to permit the fish again to pass into the river
for spawning is to be completed.
App. 30
The Secretary had before him various written reeommenda-
tions from interested agencies and experts, including re-
sponsible expert studies presented by the Tribe There
was a wide variation in these recommendations suggesting
diversion of water in varying amounts ranging from 287,-
000 acre feet to 396,000 acre feet. All purported to be
made on the basis of guidelines and policies previously set
by the Secretary. After reviewing these written submis-
sions, the Secretary conferred with the Assistant Secretary
for Water and Power Resources (with authority over the
Bureau of Reclamation) and the Assistant Secretary for
Public Land Management (with authority over Indian Af-
fairs) and made what one of these Assistants characterized
as a “judgment eall.” It is affirmatively stated that the
Secretary did not accept the reommendation of any par-
ticular person or group. The record, therefore, is com-
pletely devoid of any explanation or indication of the fac-
tors or computations which he took into account in arriv-
ing at the diversion figure of 378,000 acre feet. The grounds
of his action are therefore not disclosed and there is no
way of knowing the basis on which his conclusions rested.
Since the record is as complete on this score as it ever
can be, the Government has failed to meet its burden of
establishing that this decision was anything but arbitrary.
See Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971) ; Environmental]
Defense Fund, Ine. v. Ruckelshaus, 142 U.S. App. D.C. 74,
439 F. 2d 584 (1971); DeVito v. Shultz, 300 F. Supp. 381
(D. D. C. 1969).
3Commissioner of Indian Affairs, Bureau of Reclamation,
Geological Survey, the Fish and Wildlife Bureau, Clyde-Criddle-
Woodward, Inc., and Woodward-Clevenger & Associates, Inc.,
among others.
App. 31
Furthermore, while the Secretary’s good faith is not
in question, his approach to the difficult problem confront-
ing him misconceived the legal requirements that should
have governed his action. A “judgment call” was simply
not legally permissible. The Secretary’s duty was not to
determine a basis for allocating water between the District
and the Tribe in a manner that hopefully everyone could
live with for the year ahead. This suit was pending and
the Tribe had asserted well-founded rights. The burden
rested on the Secretary to justify any diversion of water
from the Tribe with precision. It was not his function to
attempt an accommodation.
In order to fulfill his fiduciary duty, the Secretary
must insure, to the extent of his power, that all water not
obligated by court decree or contract with the District goes
to Pyramid Lake.‘ The United States, acting through the
Secretary of Interior, “has charged itself with mora] obli-
gations of the highest responsibility and trust. Its con-
duct, as disclosed in the acts of those who represent it in
dealings with the Indians, should therefore be judged by
the most exacting fiduciary standards.” Seminole Nation
v. United States, 316 U.S. 286, 297, 62 S. Ct. 1049, 1054, 86
L. Ed. 1480 (1942); Navajo Tribe of Indians v. United
States, 364 F. 2d 320, 176 Ct. Cl. 502 (1966).
The vast body of case law which recognizes this trustee
obligation is amply complemented by the detailed statu-
tory scheme for Indian affairs set forth in Title 25 of the
United States Code. Undertakings with the Indians are
‘The Secretary's own regulations recognize his trustee obli-
gations. 43 C. F. R. §§ 418.1(b) and 418.3(a) (1972).
SE. g., 25 U.S. C. §§ 174 and 476; see 43 U.S.C. § 614c.
App. 32
to be liberally construed to the benefit of the Indians, and
the duty of the Secretary to do so is particularly appar-
ent. It is not enough to assert the water and fishing rights
of the Tribe by filing a suit in the United States Supreme
Court.
The Secretary was obliged to formulate a closely de-
veloped regulation that would preserve water for the Tribe.
He was further obliged to assert his statutory and con-
tractual authority to the fullest extent possible to accom-
plish this result. Difficult as this process would be, and
troublesome as the repercussions of his actions might be,
the Secretary was required to resolve the conflicting
claims in a precise manner that would indicate the weight
given each interest before him. Possible difficulties
ahead could not simply be blunted by a ‘‘judgement call’’
calculated to placate temporarily conflicting claims to
precious water. The Secretary’s action is therefore
doubly defective and irrational because it fails to demon-
strate an adequate recognition of his fiduciary duty to
the Tribe. This also is an abuse of discretion and not
in accordance with law.
The record before the Court clearly establishes the
underlying defects and arbitrary nature of the challenged
regulation. The Secretary erred in two significant re-
spects. First, he disregarded interrelated court decrees,
and, second, he failed to exercise his authority to prevent
unnecessary waste within the District. The effect of this
is to deprive the Tribe of water without legal justifica-
tion.
Two decrees of the United States District Court for
the District of Nevada, known as the Orr Water Ditch
App. 33
and Alpine decrees, govern the amounts and conditions
under which water shall be available for beneficial uses
in the District. Maximums of roughly 4.5 acre feet and
2.92 acre feet measured at farm headgates are provided
in the Orr and Alpine decrees, respectively. Approxi-
mately 60-75 percent of the water needed to serve the
District’s 60,000 acres of land is covered by the Alpine
decree, and the remaining needed water is covered by the
Orr decree. The parties and this Court of course recog-
nize that neither the Secretary nor this Court can adopt
or require a regulation that would infringe upon these
decrees, and their interpretation and application is, in a
number of respects, uncertain. Nonetheless, regardless
of ambiguities and inconsistencies, as the Secretary him-
self recognized in his own guidelines and regulations, 43
C.F. R. § 418.3 (1972), he was required to take both de-
crees into account. The evidence demonstrates conclus-
ively that the Secretary formulated the regulation by
totally ignoring the Alpine decree and must have reached
his calculations by relying solely on larger quantities pro-
vided by the Orr Water Ditch decree.
In addition, the evidence conclusively showed that the
regulation is wholly inadequate to prevent waste within
the District, causing substantial and wholly unnecessary
diversion of water from the Truckee River to the obvious
detriment of the Tribe. It was amply demonstrated that
water could be conserved for Pyramid Lake without of-
fending existing decrees or contractual rights of the Dis.
trict through better management which would prevent un-
necessary waste. The amount of exposed water can be
reduced to limit exaporation. Better management will
lessen seepage and overflow; users can be assessed for
App. 34
water taken; techniques exist for measuring water more
efficiently at headgates; land not entitled to water under
the decrees and contract with the District can be prevented
from taking the water: and by the mere employment of
a few individuals the system ean be so policed that it will
function on a basis consistent with modern water control
practices. All of this can be accomplished in spite of the
fact that the District has an antiquated system. Failure
to take appropriate steps, under the circumstances, by
the regulation constitutes agency action unlawfully with-
held and unreasonably delayed when viewed in the light
of the Secretary’s trust responsibilities to the Tribe, 5
U.S.C. § 706(1).
Under the contract between the Secretary and the
District Secretary has the right to require the District
to conduct its affairs in a non-wasteful manner but no
such action was taken or is contemplated in the regula-
tion.’ The operations of the District are not tightly con-
trolled and water is taken practically on demand without
necessary safeguards to prevent improper and wasteful
use. This failure to act must be given particular em-
phasis since the proof showed that the Secretary has not
in the past enforced his prior yearly regulations affecting
the District and has acquiesced in excessive water deliv-
eries to the farms. Moreover, the absence of effective
enforcement provisions in the challenged regulation must
*The regulation, even within its four corners, showed a dis-
regard for close, careful management and control. The month-
to-month operating criteria set out in the regulation were pre-
pared to accommodate a diversion of 406,000 acre feet and
were not modified or adjusted when the lesser diversion of
378,000 acre feet was provided. This alone could save some
30,000 acre feet for the Tribe.
App. 35
be considered in the light of a formal statement by the
District that it will disregard the new regulation and will
divert water as it chooses by giving instructions to its
own water masters (Def. Ex. 9).
The regulation is arbitrary, capricious, an abuse of
discretion and not in accordance with law. A different
basis for determining the amount of water to be diverted
at Derby Dam is required. There is need to consider ap-
propriate relief. Obviously some standard for regulating
the water flow to the District must be in effect. In the
approaching winter months there will be less strain than
will arise commencing in early spring. It therefore ap-
pears appropriate to permit the regulation to remain in
effect until February 1, 1973, and to direct appropriate
action in the interim which will place the management and
distribution of the water under more appropriate control
before serious seasonal demands become apparent.
Accordingly, the Court directs that on or before Jan-
uary 1, 1973, the Secretary shall submit to this Court a
proposed amended regulation which is in conformity with
the findings of fact and conclusions of law set forth in
this Memorandum Opinion. The amendment shall pro-
vide, among other things, an effective means to measure
water use, to minimize unnecessary waste, to end delivery
of water within the District to land not entitled under the
decrees, and to assure compliance by the District. Proper
weight shall be given to both the Orr Water Ditch and
Alpine decrees and the amount of water diverted shall
be wholly consistent with the Secretary’s fiduciary duty
to the Tribe.
In this connection, the Court has noted that the man-
ner in which the Secretary chooses to manage and commit
App. 36
water stored in Stampede Reservoir will have an effect
on the situation. Inasmuch as the contract between the
Secretary and the Department of Agriculture relating to
Stampede bears on this aspect of the problem, the Court
notes that the contract is ambiguous in its terms and was
made without consultation with the Tribe. This contract
cannot be interposed as an obstacle to the Lake receiving
the maximum benefit from the upper Truckee flow into
Stampede which may be available under a reasonable and
proper interpretation of the decrees. The Secretary’s
trust obligations to the Tribe are paramount in this re-
spect.
In the event the amended regulation fails to assure
at least the delivery of 385,000 acre feet of water to Pyr-
amid Lake, the Secretary shall accompany the regulation
with a full, detailed, factual statement of the reasons why
this result has not been achieved, together with a specific
itemized plan indicating what further action will be taken
consistent with the Orr Water Ditch and Alpine decrees
to accomplish this result in the immediate future. New
construction programs to be financed with Government
funds not appropriated, effective four or five years from
now, will not suffice.
Counsel shall submit an appropriate order consistent
with these declarations, findings of fact and conclusions
of law within ten days.
(Map omitted from the Appendix)
ORDER
This cause having duly come on for trial on the 24th,
25th and 26th days of October, 1972, proof having been
presented on behalf of the respective parties, the parties
App. 37
having appeared by their respective attorneys, the Court
being fully advised in the premises, and a Memorandum
Opinion dated November 8, 1972, having been rendered
incorporating the Court’s Findings of Fact and Con-
clusions and Declarations of Law, it is hereby
Ordered, adjudged and decreed that:
1. The Operating Criteria and Procedures for the
Truckee and Carson Rivers for the period November 1,
1972, through October 31, 1973, promulgated by the Sec-
retary of the Interior on September 14, 1972, 37 Fed.Reg.
19838, are unlawful.
2. Said Operating Criteria and Procedures are here-
by set aside effective February 1, 1973.
3. The Secretary of the Interior is directed to sub-
mit to the Court on or before January 1, 1973, proposed
amended Operating Criteria and Procedures for the
Truckee and Carson Rivers for the period ending October
31, 1973, which shall conform to the Findings of Fact and
Conclusions of Law set forth in the Court’s November 8,
1972, Memorandum Opinion.
4. Said amended Operating Criteria and Procedures
shall be accompanied by a detailed explanation of the
factors or computations which the Secretary takes into
account in arriving at the maximum diversion figure set
forth in said amended Operating Criteria and Procedures.
5. Said amended Operating Criteria and Procedures
shall be wholly consistent with the Secretary’s fiduciary
duty to the plaintiff and give proper weight to the maxi-
mum farm headgate entitlements of both the Orr Water
Ditch and Alpine decrees.
App. 38
6. Said amended Operating Criteria and Procedures
shall provide, among other things, for effective means to
measure water use, to minimize unnecessary waste, to end
delivery of water within the Truckee-Carson Irrigation
District to land not entitled under the decrees, and to
assure compliance by the District with the amended Oper-
ating Criteria and Procedures.
7. In the event the amended Operating Criteria and
Procedures will fail to assure the delivery of at least
385,000 acre feet of water to Pyramid Lake for the twelve
months ending October 31, 1973, the Secretary of the In-
terior is directed to accompany the Operating Criteria
and Procedures with a full, detailed, factual statement of
the reasons why this result has not been achieved, togeth-
er with a specific itemized plan indicating what further
action will be taken consistent with the Orr Water Ditch
and Alpine decrees to accomplish this result in the im-
mediate future.
8. The contract of June 29, 1970, between the Bureau
of Reclamation and the United States Forest Service
(Plaintiff’s Exhibit 8) cannot be interposed as an ob-
stacle to Pyramid Lake receiving the maximum benefit
from the upper Truckee flow into Stampede Reservoir
which may be available under a reasonable and proper
interpretation of the applicable decrees.
9. Plaintiff shall submit any opposition to the
amended Operating Criteria and Procedures on or before
January 10, 1973. A hearing on the amended Operating
Criteria and Procedures will be held on January 24, 1973,
at 9:30 a.m. if requested by either party on or before
January 15, 1973.
App. 39
MEMORANDUM
During the pendency of this litigation, the Secretary
placed into effect Operating Criteria to govern the water
year ending October 31, 1973, it being understood that
these criteria would be subject to possible revision and
change based on the determinations of the Court. The
Court has today entered a Judgment and Order approving
different Operating Criteria which the Court finds more
consistent with the Secretary’s legal and fiduciary obliga-
tions to the Tribe. The parties are in accord with respect
to many aspects of the approved Operating Criteria, but
the Court has had to resolve controversies over other
substantial portions.
This Judgment and Order is entered midway in the
water year. It will not be practical to implement fully
all of its provisions by October 31, 1973. Accordingly,
the Court has been obliged to recognize the need for cer-
tain interim adjudgments. It has directed that the ap-
proved Operating Criteria shall be placed in full force
and effect commencing with the next water year, Novem-
ber 1, 1973.
For the current water year the approved Operating
Criteria will be generally applicable and the Secretary
must take immediate steps to put them into effect. Since
some aspects will require time to implement, the Court is
authorizing the Secretary to divert more water to aid
transition.
In selecting 350,000 acre-feet for diversion during the
present water year, rather than the 288,120 acre-feet spe-
cified for the following water year, the Court has acceded
to the Secretary’s representations that this amount will
App. 40
enable a more gradual transition and in view of current
weather conditions will not substantially deprive the Tribe
of water for Pyramid Lake. The Tribe has not accepted
the figure of 350,000 acre-feet, but did agree that more
diversion than 288,129 acre-feet should be permitted for
the current year. The Judgment and Order also makes
certain additional changes in the approved criteria for
the immediate period ahead in recognition of this larger
diversion.
The Court’s role in these proceedings has focused on
the Operating Criteria in effect since November 1, 1971.
The proof showed, however, that the Secretary has fol-
lowed the practice of more or less renewing similar or
identical criteria from year-to-year. As these proceedings
have gone forward, the Secretary has indicated an in-
creasing willingness to take actions in aid of Pyramid
Lake. While some adjustments in Operating Criteria
may be necessary after October 31, 1974, to accommodate
changing conditions, there is no reason to believe from
the record before the Court that the general standards
established by the Court’s Judgment and Order should
otherwise change. The Secretary’s fiduciary obligations
will not alter and his continuing duty actively to super-
vise and upgrade the Newlands Project and to provide
maximum water for Pyramid Lake will not change. It
is to be hoped that new litigation can be avoided by the
Secretary’s assiduous attention to his responsibilities in
this regard.
}
App. 41
JUDGMENT AND ORDER
The Court having filed its Memorandum Opinion of
November 8, 1972, after giving full opportunity to the
parties to fashion appropriate relief and having consid-
ered the proposed relief of each party, it is hereby
Ordered, adjudged and decreed that:
(1) The Secretary’s Operating Criteria setting forth
procedures for coordinating operation and control of the
Truckee and Carson Rivers to provide service to the
Newlands Project now in effect are arbitrary and an
abuse of his discretion.
(2) The Court declares that Operating Criteria in
the form attached to this Judgment and Order are neces-
sary and appropriate to fulfill the Secretary’s fiduciary
and legal obligations to the Tribe.
(3) The Secretary shall immediately publish this
Judgment and Order, and publish and implement and en-
force the attached Operating Criteria for the water year
commencing November 1, 1973, and for the current water
year ending October 31, 1973, provided, however, for the
current water year only, he may divert up to 350,000 acre-
feet for the twelve months ending October 31, 1973, and
he shall disregard the detailed provisions of Sections A
and B and in lieu thereof comply with the following re-
quirements:
A(1) 50,000 acre-feet of water presently stored in
Stampede Reservoir will be credited to the Truckee-Car-
son Irrigation District to be used by it in the event the
water stored in Lahontan Reservoir shall fall below 80,000
App. 42
acre-feet and it appears that it is necessary to draw upon
this water to meet the needs within the allowable maxi-
mum total diversion of the Truckee-Carson Irrigation
District for this water year.
(2) Subject to the provisions of Section A(1), diver-
sions from the Truckee River for the Truckee-Carson
Irrigation District shall be limited to the needs of the
Truckee division.
(3) Maximum storage of water in Stampede Reser-
voir shall be required. Releases shall be limited insofar
as possible consistent with existing decrees, flood control
requirements and for the purposes of assisting fishery
experiments as approved by the Secretary after consulta-
tion with the Tribe and the Bureau of Sport Fisheries
and Wildlife.
(4) Nothing in this Judgment and Order shall con-
stitute an interpretation or modification of either the Al-
pine or Orr Water Ditch decrees, nor shal! it be deemed
to affect the rights of any person under either of such
decrees, so long as they remain in effect.
(5) Nothing in the Judgment and Order shall be
deemed to prevent any change in the Operating Criteria
that may be agreed between the parties, in writing, or
ordered by the Court, after notice.
OPERATING CRITERIA AND PROCEDURES FOR
COORDINATED OPERATION AND CONTROL OF
THE TRUCKEE AND CARSON RIVERS FOR
SERVICE TO NEWLANDS PROJECT
The water supply diversions to the Truckee-Carson
Irrigation District from both the Truckee and Carson
App. 43
Rivers shall be limited to the amount needed for agricul-
tural purposes, not exceeding 288,129 acre-feet, if avail-
able, for the twelve months ending October 31, 1974. The
water supply diversions shall be measured at the gauging
station below Lahontan Dam and at diversion points
along the Truckee Canal.
All use of water for power generation shal! be inci-
dental to either agricultural use or precautionary draw-
down or spill.
In satisfying the diversion for agricultural purposes,
. a ;
maximum use will be made of Carson River water and
diversions through the Truckee Canal will be minimized.
Stampede Reservoir shall be operated by the United
States to provide flood control, fish and wildlife, and
recreation benefits and to store water for possible agri-
cultural use by the Truckee-Carson Irrigation District.
The operation of Stampede Reservoir will be coordinated
with the operation of Lake Tahoe, Prosser Creek Reser-
voir, and Boca Reservoir to avoid infringing upon the
Floristan Rates or water rights established by existing
degrees and agreements.
In all of the operations, Truckee Canal will be oper-
ated to the maximum extent practical with the objective
of maintaining minimum terminal flow to Lahontan Reser-
voir or Carson River during all periods except when
criteria herein specifically permits such deliveries. In
order to minimize the rates of fluctuation in the Truckee
River below Derby Dam the change of flow in Truckee
Canal within any 24-hour period shall not exceed 50 cubic
feet per second or 20 percent of the flow in the Truckee
River below Derby, whichever is greater.
App. 44
During periods of spill or precautionary drawdown
of Lahontan Reservoir, the District will be charged only
with the predetermined schedule of irrigation releases to
be passed at the gauging station below Lahontan Reser-
voir plus measured diversions from the Truckee Canal
and Rock Dam Ditch.
The operation of Stampede Reservoir, Derby Diver-
sion Dam, Truckee Canal, and Lahontan Reservoir will
be conducted in accordance with the following criteria in
order to minimize diversions from the Truckee River
through the Truckee Canal.
SECTION A
Truckee Diversion Criteria
Subject to conditions specified in Section B (Storage
Credit at Stampede), the diversions of water from the
Truckee River into and through the Truckee Canal will
be governed by the following criteria:
(1) If available, sufficient water will be diverted
into Truckee Canal to meet direct agricultural require-
ments along the Truckee Canal.
(2) Diversions through the Truckee Canal into La-
hontan Reservoir will be made in accordance with the
following tabulation:
(Table omitted. )
SECTION B
Storage Credit at Stampede
As a means of minimizing the diversions of Truckee
River water for use on the Carson Division of the
Truckee-Carson Irrigation District or for storage in La-
App. 45
hontan Reservoir and at the same time ensuring that the
District shall receive exactly the same total amount of
water for its beneficial use as otherwise, the following
modifications shall be applied to the criteria in Section
A (Truckee Diversion Criteria) :
(1) The storage levels in Lahontan Reservoir speci-
fied as limits for starting and stopping diversions of
water for storage in Lahontan or use on the Carson Di-
vision shall be converted to acre-feet and applied to the
sum of water in storage at Lahontan Reservoir and water
in Stampede Reservoir credited to the Truckee-Carson
Irrigation District using the most up-to-date area-capacity
curve for each reservoir.
(2) The combined storage facilities on the upper
Truckee River will be operated in a manner consistent
with the applicable decrees and so as to maintain the
Floristan Rates with the objective of maximizing the ac-
cumulation of storage in Stampede Reservoir.
(3) Whenever there is an adequate amount of un-
committed water in Stampede Reservoir the Truckee-
Carson Irrigation District shall forego the diversion of
water into the Truckee Canal for storage in Lahontan
Reservoir or for use on the Carson Division and shall
accept credit in Stampede Reservoir for the amount of
water it otherwise would have diverted. For the purposes
of this subsection, an adequate amount of uncommitted
water (consisting of not less than 50,000 acre-feet) will
be deemed to have accumulated in Stampede Reservoir
no later than February 1, 1974.
(4) The sum of the amount of water stored in La-
hontan Reservoir plus the amount of water stored in
Stampede Reservoir and credited to the Truckee-Carson
Irrigation District shall not be allowed to exceed the
App. 46
storage capacity of Lahontan Reservoir below elevation
4163.67 feet above mean sea level (317,300 acre-feet), and
this limit shall be preserved, if necessary, by the reduc-
tion of credit in Stampede Reservoir. When the amount
of water credited to the Truckee-Carson Irrigation Dis-
trict is so reduced, the amount of that reduction shall be
credited for the purpose of maintaining the minimum
rates of flow below Derby Dam provided in Section B(7)
of these Operating Criteria and Procedures.
(5) Whenever the water surface elevation of Lahon-
tan Reservoir is at or below elevation 4129.28 feet (80,000
acre-feet) above mean sea level during the irrigation
season, water will be released from Stampede Reservoir
to be diverted into and through the Truckee Canal for
agricultural use by the Truckee-Carson Irrigation Dis-
trict in either or both the Truckee and Carson Divisions.
The total amount of the release shall be limited to the
lesser of the amount credited to the Truckee-Carson Irri-
gation District or the amount needed to supplement the
80,000 acre-feet of water in Lahontan Reservoir to meet
the remaining seasonal agricultural requirements of the
Truckee-Carson Irrigation District.
(6) From February 1, 1974, the District will be
credited with an initial 50,000 acre-feet of water in Stam-
pede. In addition to this amount, the District will be
credited with the accumulated storage in excess of 5915.0
feet above mean sea level (127,600 acre-feet) in accord-
ance with B(3) above.
(7) Insofar as possible consistent with existing de-
crees and with maintaining the Floristan Rates and with
Operating Criteria and Procedures Sections B(1) through
B(6), Stampede Reservoir (as well as the other storage
facilities on the upper Truckee River) shall be operated
App. 47
with the objective of maintaining the following minimum
rates of flow for fish, wildlife and recreation purposes in
the Truckee River below Derby Dam measured at the
Nixon gauge:
March 1—May 15 600 cubic feet per second
May 16—September 15 300 cubic feet per second
September 16—Feb. 28 150 cubic feet per second
(8) At the conclusion of the water year, October 31,
1973, the District shall retain as minimum carry-over
credit in Stampede Reservoir for the 1974 water year the
quantity of Truckee River water that it would have been
able to divert to Lahontan Reservoir in the absence of its
storage credit at Stampede. In addition, the Secretary
of the Interior, in consultation with the Pyramid Lake
Paiute Tribe of Indians and the Bureau of Sport Fisher-
ies and Wildlife with respect to the requirements of the
Pyramid Lake fishery, will determine: (1) the portion
of the remaining storage in Stampede Lake allocated for
releases to Pyramid Lake, and (2) the portion of the re-
maining storage in Stampede Reservoir to be allocated
to the District as additional carry-over storage credit for
the 1974 water year.
(9) Nothing in sections B(1) through B(8) of these
Operating Criteria and Procedures shall in any way in-
fringe on or interfere with the flood control function of
Stampede Reservoir.
SECTION C
As a means of insuring that the amount of water
diverted is limited to that prescribed for beneficial agri-
cultural use, the Truckee-Carson Irrigation District shall:
App. 48
(1) Deliver water only to lands for which the Dis-
trict has in advance established to the satisfaction of the
Secretary or his designee that a current valid water right
exists.
(2) Establish a single water operations center which
will coordinate all orders for delivery of water to indi-
vidual turnouts and which then will dispatch flows in the
distribution systems so as to meet the water orders with
minimum spill from the distribution system.
(3) Permit only authorized District employees to
open and close individual turnouts and operate the dis-
tribution system facilities.
(4) Establish and operate sufficient stations for the
measurement of all surface waters flowing out of the
Truckee, North Carson, and South Carson Divisions.
(5) Initiate immediately a program for improving the
measurement of the amounts of water delivered to indi-
vidual turnouts. The program shall include the installa-
tion of measuring devices on at least 10 percent of the
total turnouts in 1973; the program shall concentrate first
on the combinations of large users and currently poor
measurements; and the installed devices must be ap-
proved by the U. S. Geological Survey and the Bureau
of Reclamation.
(6) Submit to the Project Office of the Bureau of
Reclamation a monthly report by the 15th of the follow-
ing month for each of the three divisions showing the
total water delivery in acre-feet and the maximum, mini-
mum and mean daily outflow in cubic feet per second.
Reports showing the amount of water in acre-feet deliv-
ered to each farm each month during the water year shall
be made at least twice during the calendar year. These
App. 49
reports shall be circulated to the Tribe and the members
of the Truckee-Carson Operating Criteria and Procedures
Committee.
(7) By June 30, 1973, establish a system, to become
effective November 1, 1973, for charging water users for
the quantity of water delivered to their turnouts. The
system shall be designed: (a) to provide a reasonable
financial incentive for economical and efficient use of
water; and (b) to produce revenue against the District’s
operation and maintenance expenses and to assist the dis-
charge of its debt to the United States.
SECTION D
(1) Article 32 of the December 18, 1926, contract
between the United States and the District will be invoked
by the Secretary for substantial violations of these Op-
erating Criteria and Procedures and the Secretary re-
serves all other rights and options to enforce these cri-
teria.
(2) If the Secretary determines that waste has oc-
curred through negligence or inattention, after written
notice the amount of such waste shall be deducted from
the District’s allowable maximum total diversion.
(3) The District shall not deliver water to users
who do not comply with all of the terms and provisions
of these Operating Criteria and Procedures. Such deliv-
eries shall not resume without the prior approval of the
Secretary or his designee.
(4) The Secretary shall not approve any applica-
tions for transfers of water rights within the Newlands
Project pursuant to 43 U.S.C. § 439 unless he finds that
the District is in compliance with all of the terms and pro-
App. 50
visions of these Operating Criteria and Procedures and
that the applicants for such transfers are in compliance
with these Operating Criteria and Procedures and with
the applicable decrees. Transfers of water rights shall
be restricted to the extent that there shall be no enlarged
consumptive use of water within the lands of the Newlands
Project.
(5) All of the water delivery operations of the
Truckee-Carson Irrigation District shall be monitored
closely by the Bureau of Reclamation. Any and all viola-
tions of the terms and provisions of these Operating Cri-
teria and Procedures shall be reported immediately by
the District to the Project Office of the Bureau of Rec-
lamation.
App. 51
APPENDIX D
TRUCKEE-CARSON IRRIGATION DISTRICT
Newlands Project
P.O. Box 1356
Fallon, Nevada 89406
Telephone (702) 423-2141
Board of Directors Richard S. Lattin
Joe Serpa, Jr., President Project Manager
Ernest C. Schank, Vice President Doris J. Morin
Thomas Wm. Cook, Director Secretary-Treasurer
Ted J. deBraga, Director
Larry R. Miller, Director
Elbert L. Mills, Director
Rex L. Workman, Director
May 19, 1981
Honorable James G. Watt
Secretary of the Interior
United States Department of
the Interior
C Street between 18th and 19th. N. W.
Washington, D.C. 20240
RE: Truckee-Carson Irrigation District and the
Newlands Reclamation Project in the State
of Nevada
Dear Secretary Watt:
Truckee-Carson Irrigation District is an irrigation
district duly organized under Nevada law. It operates
the federal Newlands Reclamation Project pursuant
to a December 18, 1926 contract entered into with the
United States. The project is situated in Northern
Nevada, and its sources of water are the Truckee and
Carson Rivers. It was the first (or one of the first)
federal reclamation projects constructed following the
enactment of the Reclamation Act of 1902. It is ba-
sically cattle oriented, and there are 73,002 acres of
project water right land owned and farmed by ap-
App. 52
proximately 2,200 individual farmers, almost all of
whom live on their land and farm it themselves.
While most of the project lands are in the Carson
River watershed the flow of that river is insufficient
to satisfy irrigation demands, and therefore one of
the primary features of the Newlands Reclamation
Project was the construction of Derby Dam on the
Truckee River some 25 miles below Reno and 30 miles
upstream from Pyramid Lake. Derby Dam permits
diversion of waters from Lake Tahoe and the Truckee
River into the Truckee Canal leading to the project’s
Lahontan Reservoir, which has a capacity of 317,280
acre-feet, and is located on the Carson River.
The rights to the use of the waters of the Truckee
River and its tributaries in Nevada are set forth in
the September 8, 1944 Final Decree entered in the
ease of United States of America v. Orr Water Ditch
Company, et al., Equity Docket No. A-3, United States
District Court for the District of Nevada (herein-
after the Orr Ditch case).
The rights to the use of the waters of the Carson
River and its tributaries in Nevada (and California)
are now set forth in the December 18, 1980 Final De-
cree entered in the case of United States of America
v. Alpine Land & Reservoir Company, et al., Equity
Docket No. D-183, United States District Court for
the District of Nevada' (hereinafter the Alpine case).
Each of the decrees specify a delivered-to-the-land
water duty on the Newlands Reclamation Project of
3.5 acre-feet per acre for the bottomlands and 4.5
acre-feet per acre for the benchlands, with a priority
‘Prior to the entry of that December 18, 1980 Final Decree,
these rights to the use of the waters of the Carson River had
been administered by the Court’s watermaster pursuant to a
Preliminary Determination and Adjudication and Temporary
Restraining Order entered on March 24, 1950.
App. 53
of July 2, 1902.2 The Court has also provided for and
appointed a single watermaster to administer those
decrees and enforce their respective provisions.
It should also be noted that in the December 18, 1980
Final Decree entered in the Alpine case and in the
Court’s Opinion entered in that case on that date, the
Court determined that the water rights on the New-
lands Reclamation Project are appurtenant to the
lands irrigated, and that these water rights are owned
by the individual landowners, that is, the farmers
and not by the United States.
With these comments in mind T would like to outline
some past events.
In the early 1960's a desire to substantially increase
the flows of Truckee River water to Pyramid Lake
for fishery purposes became a major concern of the
Pyramid Lake Paiute Tribe of Indians and the Bur-
eau of Indian Affairs within the Department of the
Interior. Various committees and task forces were
appointed, all of whom eventually reached the conelu-
sion, in one form or another, that the right to the
use of the water for fishery purposes was either non-
existent or at best questionable and that increased
flows to Pyramid Lake could not be accomplished
without taking water that was presently being used
*While the United States has recently fild (sic) a Notice of
Appeal from the December 18, 1980 Final Decree in the Alpine
case that appeal should not affect the provisions of that decree
which established the project water uty of 3.5 acre-feet per
acre for the bottomlands and 4.5 acre-feet per acre for the
benchlands. In the Alpine case trial the se ney water duty was
tied to beneficial use and it was a pure factual issue, and there
was substantial evidence which supported the decreed 3.5 and
4.5 acre-feet per acre project water duty. Our attorneys have
advised me that under those circumstances the appellate court
would not reweigh the evidence, and that the decreed project
water duty of 3.5 acre-feet per acre for the bottomlands and
4.5 acre-feet per acre for the banchlands could not be success-
fully challenged on appeal.
App. 54
by someone else. Not surprisingly, since Truckee-
Carson Irrigation District and the Newlands Recla-
mation Project farmers were the largest upstream
user of those waters, efforts to obtain more Truckee
River water for Pyramid Lake were aimed at the
Newlands Reclamation Project.
The major effort to take water from the Newlands
Reclamation Project surfaced in 1970 when the Pyra-
mid Lake Paiute Tribe of Indians commenced an ac-
tion against the Secretary of the Interior. This ac-
tion was filed in the United States District Court for
the District of Columbia, and was entitled Pyramid
Lake Paiute Tribe of Indians v. Morton, Civil Action
No. 2506-70. In this action the Tribe contended that
Truckee-Carson Irrigation District was releasing from
the Truckee Canal and Lahontan Reservoir more
*As to the existence of a water right for increased flows to
Pyramid Lake for fishery purposes, in December of 1973 the
United States filed an action entitled United States of America
v. Truckee-Carson Irrigation District, et al., Civil No. R-2987
JBA, United States District Court for the District of Nevada. The
Tribe intervened on behalf of the United States. In this action
the United States and the Tribe alleged a so-called “Winters
Doctrine” right to the annual use of between 375,000 and
400,000 acre-feet of the waters of the Truckee River for fishery
purposes in the lower Truckee River and at Pyramid Lake. The
defendants (which included Truckee-Carson Irrigation District,
the State of Nevada, Washoe County, the cities of Reno and
Sparks, Sierra Pacific Power Company and all the individual
users of the waters of the Truckee River and its tributaries in the
State of Nevada) denied the existence of that fishery right and
further alleged that the United States and the Tribe’s c aim of
right to the use of the waters of the Truckee River for fishery
purposes was barred by the doctrine of res judicata (that is, the
September 8, 1944, Final Decree in the Orr Ditch case). The
assigned district court judge (the Honorable J. Blaine Anderson
from Idaho) bifurcated the case and tried the res judicata issue
and ruled in the defendants’ favor and dismissed the action.
The United States and the Tribe then appealed to the United
States Court of Appeals for the Ninth Circuit. The case has
been briefed and argued before that court, and the parties are
now awaiting the appellate decision.
App. 55
irrigation water than it was entitled to release under
the final decree in the Orr Ditch case and the tem-
porary restraining order in the Alpine case. Basic-
ally, there was an ambiguity between the September
8, 1944 Final Decree in the Orr Ditch case and the
March 24, 1950 temporary restraining order in the
Alpine case. The Final Decree in the Orr Ditch case
(which concerned the waters of the Truckee River)
provided for a Newlands Project water duty of 3.5
acre-feet per acre for the bottomlands and 4.5 acre-
feet per acre for the benchlands while the temporary
restraining order (which concerned the waters of the
Carson River) provided for a Newlands Project water
duty of 2.92 acre-feet per acre. The Tribe contended
that this ambiguity should be resolved by applying the
lower water duty to most of the project lands, and it
urged the District of Columbia Court to order the
Secretary to adopt and enforce operating criteria which
reflected irrigation releases based on that lower water
duty.
Truckee-Carson Irrigation District and the Newlands
Reclamation Project farmers were not parties to that
action and their interests were not represented in the
case.
The case was concluded on February 20, 1973. On
that date the District of Columbia Court filed its
Judgment and Order and decreed that the Secretary
“. .. immediately publish this Judgment and Order
and publish and implement and enforce the attached
operating criteria....” The Court’s Judgment and
Order and the attached Operating Criteria (which
were prepared by counsel for the Tribe) adopted
almost all of the Tribe’s contentions and the New-
lands Project irrigation releases from the Truckee
Canal and Lahontan Reservoir were reduced to 350,000
acre-feet for the water year ending October 31, 1973,
and to 288,129 acre-feet for subsequent water years.
A number of other conditions which were beyond the
ability of the District to meet were imposed on the
District by the Operating Criteria. The Operating
App. 56
Criteria further provided that if Truckee-Carson Ir-
rigation District did not comply with the provisions
of the Operating Criteria the Secretary of the In-
terior was to terminate the District’s December 18,
1926 contract with the United States.
The District of Columbia Court did however insert
one important provision in its Judgment and Order.
That provision stated:
Nothing in the Judgment and Order shall
constitute an interpretation or modification of
either the Alpine or Orr Water Ditch decrees,
nor shall it be deemed to affect the rights of any
person under either of such decrees, so long as
they remain in effect.
On March 12, 1973, the Assistant Secretary of the In-
terior complied with the Court’s order and published
the Court’s Judgment and Order and Operating Cri-
teria for the water year ending October 31, 1973, in
the Federal Register (Vol. 38, No. 47). From 1974
to 1978 the Secretary readopted and republished these
same Operating Criteria in the Federal] Register for
those water years, but the District is not aware that
they were readopted and republished in the Federal
Register by the Secretary for the water years ending
October 31, 1979, October 31, 1980, or for the current
water year.
These court-imposed Operating Criteria have never
been complied with, for Truckee-Carson Irrigation
District and the Newlands Reclamation Project farm-
ers’ position was (and is), that their vested rights
to the use of the waters of the Truckee and Carson
Rivers cannot be decided by a distant court in an ac-
tion in which they are not parties. Truckee-Carson
Irrigation District has released from the Truckee
Canal and Lahontan Reservoir irrigation water in
an amount that it and the Nevada District Court’s
Watermaster concluded the District was entitled to
release under the provisions of the final decree in the
App. 57
Orr Ditch case and the temporary restraining order
in the Alpine case. These releases have exceeded the
releases specified in the Judgment and Order and Op-
erating Criteria imposed on the Secretary by the Dis-
trict of Columbia court. As a result of the District’s
failure to comply with the court-imposed Operating
Criteria, and on September 14, 1973, the Secretary
gave notice that the District’s contract of December
18, 1926 was to be terminated on October 31, 1974.
Truckee-Carson Irrigation District then commenced an
action against the Secretary entitled Truckee-Carson
Irrigation District v. Secretary of the Interior, Civil
No. R-74-34 (BRT), United States District Court for
the District of Nevada. In that action the District
contends that it and the Newlands Reclamation Proj-
ect farmers cannot be bound by the court-imposed Op-
erating Criteria, that those Operating Criteria are
arbitrary and unreasonable, and that the Secretary’s
September 14, 1973 notice that the District’s contract
of December 18, 1926 was to be terminated on October
31, 1974 was invalid. The Pyramid Lake Paiute Tribe
of Indians intervened in this action on behalf of the
Secretary and the case was tried last year before
United States District Judge Bruce R. Thompson,
who has recently set the case for oral argument on
August 7, 1981.
Notwithstanding the Secretary’s purported October
31, 1974 termination of the District’s December 18,
1926 contract with the United States, the District has
continued to operate the project under that contract,
and the United States has agreed that it would not
attempt to take possession of the project unless and
until it had been authorized to do so by a court of com-
petent jurisdiction.
This brings us to the central point of this letter. As
mentioned above, the Final Decree in the Alpine case
was entered on December 18, 1980. We are sure that
in light of this decree everyone, including your de-
partmental attorneys, can now agree that the Operat-
App. 58
ing Criteria for the water year ending October 31,
1981, and for future water years, will have to be sub-
stantially changed from the Operating Criteria that
the Secretary was ordered to adopt, publish and en-
force by the District of Columbia Court in 1973.
Any Operating Criteria for the water year ending
October 31, 1981 or for future water years, will have
to reflect the project water duty of 3.5 acre-feet per
acre for the bottomlands and 4.5 acre-feet per acre
for the benchlands as determined in the September 8,
1944 Final Decree in the Orr Ditch case and the De-
cember 18, 1980 Final Decree in the Alpine case, and
not the lower water duty of 2.92 acre-feet per acre
that was used for 75% oi the lands within the proj-
ect’s Carson Division by the District of Columbia
Court when it adopted its Operating Criteria in 1973.
Along those same lines, any Operating Criteria for
the water year ending October 31, 1981 or for future
water years will have to reflect the uncontradicted
evidence in the recent Alpine case trial which estab-
lished that there are over 9,000 acres of benchlands in
the Carson Division of the project and not the zero
acres of benchlands for the Carson Division used by
the District of Columbia Court, when it adopted its
Operating Criteria in 1973.
Further, any Operating Criteria for the water year
ending October 31, 1981 or for future water years is
going to have to be based on the uncontradicted evi-
dence in the recent Alpine case trial that there are
73,002 acres of project water right land of which ap-
proximately 65,000 acres are irrigated each year rather
than the 55,210 acres of irrigated project water right
land that was used by the District of Columbia Court
when it adopted its Operating Criteria in 1973.
The bottom line is that in light of the December 18,
1980 Final Decree in the Alpine case, everyone must
now concede that the court-imposed limitation on the
releases from the Truckee Canal and Lahontan Res-
App. 59
ervoir of 288,129 acre-feet for the water year ending
October 31, 1981 and for future water years cannot be
sustained. The decrees in the Orr Ditch and Alpine
eases now clearly provide for substantially more irri-
gation releases than the court-imposed 288,129 acre-
feet, under anyone’s computations.
Further, in light of the December 18, 1980 Final De-
eree and the Court’s Opinion in the Alpine case that
the project water right is appurtanant to the land
and owned by the farmers and not by the United
States, it would seem obvious that the District of Co-
lumbia Court and the Secretary of the Interior lack
jurisdiction to impose operating criteria which in fact
limit those privately-owned water rights. On this
point we would note that a witness for the Secretary
of the Interior testified without contradiction in the
trial before the District of Columbia Court that the
United States owned these water rights. This er-
roneous testimony was undoubtedly accepted by that
Court when it decided to impose its Operating Criteria
on the Secretary for enforcement on the District and
the project farmers. ! do not believe that if that court
had been correctly informed that the water rights
were owned by the farmers and not by the United
States, it would have entered the Judgment and Order
and Operating Criteria which, in fact, ordered the
Secretary to limit those privately-owned water rights.
I sincerely urge you, as Secretary, to have your at-
torneys bring an appropriate motion before the court
in the Case of Pyramid Lake Paiute Tribe of Indians
v. Morton, Civil Action No. 2566-70, United States
District Court for the District of Columbia to, in es-
sence, inform that court that because of the Decem-
ber 18, 1980 Final Decree in the Alpine case it is just
impossible to implement and enforce the Operating
Criteria that the court ordered the Secretary to imple-
ment and enforce in its February 20, 1973 Judgment
and Order and request that you, as Secretary of the
Interior, be relieved of that responsibility. Reference
to that court’s caveat that was inserted in that Judg-
App. 60
ment and Order (which is quoted above at page 5)
could be noted, pointing out that the Nevada District
Court has now resolved the former ambiguities be-
tween its September 8, 1944 Final Decree in the Orr
Ditch case and its March 24, 1950 temporary restrain-
ing order in the Alpine case, that the ownership of the
water rights involved has now been decided by the
Nevada District Court, and that the central provisions
of the 1973 court-imposed Operating Criteria have
been effectively abrogated by the December 18, 1980
Nevada District Court Final Decree and Court Opin-
ion in the Alpine case.
It is the District’s position that it makes uo sense at
all for the Secretary of the Interior now to publish
and attempt to implement and enforce the old court-
imposed Operating Criteria for the water yea® end-
ing October 31, 1981, or for future water vears.
These old Operating Criteria are clearly in conflict
with existing decrees, and no court would enforce the
basic provision of those old Operating Criteria, that
is, the 288,129 acre-feet limitation on the District's
irrigation releases from the Truckee Canal and La-
hontan Reservoir.
I would also note that the Operating Criteria adopted
by the District of Columbia Court in 1973 provide for
the storage in Stampede Reservoir of up to 50,000
acre-feet annually of Newlands Project water. Under
the Operating Criteria this water would be released
to the District if needed. The District's hydrologist
has advised us that this provision conflicts with the
use of Stampede Reservoir for the maintenance of
fish flows in the lower Truckee River and as a source
of domestic water for the Reno area, particularly in
water short years, which as we understand it is the
current envisioned use of Stampede Reservoir by the
Department of Water and Power Resources.
Frankly, the District believes that no Operating Cri-
teria are required or necessary. We now have federal
App. 61
court decrees on both the Truckee and Carson Rivers,
and the United States District Court Judge has ap-
pointed a single watermaster to regulate the exercise
of the decreed rights and enforce the provisions of
those decrees. If any party (which includes the United
States, the Tribe and Truckee-Carson Irrigation Dis-
trict) feels that any other party is using more water
than he is entitled to use, the matter ean be brought
to the immediate attention of the watermaster for de-
termination and if one is not satisfied with the water-
master’s decision one has the right to then have the
court decide the matter.
There is no need at all for any Operating Criteria
(which are, in essence, just rules and regulations)
concerned with the use of the Newlands Reclamation
Project farmers’ privately-owned water rights. Any
dispute as to such use is going to have to be resolved
by the Nevada District Court or its watermaster in
any event. Why adopt Operating Criteria or rules
and regulations which just cloud the issue and which
in fact accomplish nothing but litigation?
However, if you do conclude that new operating cri
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