# Petition — Pyramid Lake Paiute Tribe of Indians v. Truckee-Carson Irrigation District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0824%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 863 ## Text t OD A ie | No. 83- APR test A ns | In The Supreme Court of the United States October Term, 1983 —O 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 ful [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0824%3A1. Public record. Not legal advice.