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Paiute v. State of Nevada

United States Court of Appeals, Ninth Circuit

July 30, 2013

Pyramid Lake Paiute Tribe of Indians; United States of America, Plaintiffs-Appellees,
v.
State of Nevada, Department of Wildlife; Nevada Waterfowl Association, Respondents, and Nevada State Engineer, Defendant-Appellant. Pyramid Lake Paiute Tribe of Indians; United States of America, Plaintiffs-Appellees,
v.
Nevada Waterfowl Association, Respondent, Nevada State Engineer, Defendant, and State of Nevada, Department of Wildlife, Respondent-Appellant. Pyramid Lake Paiute Tribe of Indians; United States of America, Plaintiffs-Appellees,
v.
State of Nevada, Department of Wildlife, Respondent, Nevada State Engineer, Defendant, Nevada Waterfowl Association, Respondent-Appellant.

Argued and Submitted April 18, 2013—San Francisco, California

Appeal from the United States District Court for the District of Nevada D.C. No. 3:73-cv-00201-LDG Lloyd D. George, Senior District Judge, Presiding

Bryan L. Stockton, Senior Deputy Attorney General, Carson City, Nevada, for Defendant-Appellant Nevada State Engineer.

Nhu Q. Nguyen, Senior Deputy Attorney General, and Kristen R. Geddes (argued), Deputy Attorney General, Carson City, Nevada, for Respondent-Appellant Nevada Department of Wildlife.

Paul G. Taggart (argued) and Alexander E. Drew, Taggart & Taggart, Ltd., Carson City, Nevada; Jim C. Giudici, McDonald, Carano, Wilson, LLP, Reno, Nevada, for Respondent-Appellant Nevada Waterfowl Association.

Fred Disheroon, Stephen M. MacFarlane, John L. Smeltzer, and Katherine J. Barton (argued), United States Department of Justice, Washington, D.C., for Plaintiff-Appellee United States of America.

Don Springmeyer and Christopher W. Mixson, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP, Las Vegas, Nevada, for Plaintiff-Appellee Pyramid Lake Paiute Tribe of Indians.

Before: Mary M. Schroeder, Sidney R. Thomas, and Barry G. Silverman, Circuit Judges.

SUMMARY [*]

Water Rights

Affirming the district court's judgment, the panel held that the district court correctly concluded that diversion of water for waterfowl habitat is not "irrigation" within the meaning of the federal court Alpine decree governing water rights in the Newlands Reclamation Project.

This appeal concerns applications filed by the Nevada Department of Wildlife and the Nevada Waterfowl Association to transfer water rights from agricultural land in the Newlands Project to the Carson Lake and Pasture, a wildlife refuge located within the Lahontan Valley wetlands at the terminus of the Carson River. Because the applicants proposed to use the transferred water to support the growth of plants used by wildlife, they argued that the intended use of water at Carson Lake and Pasture constituted irrigation. The Pyramid Lake Paiute Tribe and the United States protested the applications.

Determining that the Tribe had standing, the panel held that both the Alpine Decree and the Nevada water code speak of irrigation solely in the context of agriculture and distinguish such use from the application of water for recreational, aesthetic, and wildlife purposes. Therefore, the panel agreed with the district court that the State Engineer's approval of the applications to transfer the non-consumptive use portion of the applicants' water rights violated Administrative Provision VII of the Alpine Decree because the applications sought a change in the manner of use to a non-irrigation purpose.

OPINION

THOMAS, Circuit Judge:


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