Pyramid Lake Paiute Tribe of Indians v. Nevada , 724 F.3d 1181 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PYRAMID LAKE PAIUTE TRIBE OF No. 11-16470
INDIANS; UNITED STATES OF
AMERICA, D.C. No.
Plaintiffs-Appellees, 3:73-cv-00201-
LDG
v.
STATE OF NEVADA, DEPARTMENT OF
WILDLIFE; NEVADA WATERFOWL
ASSOCIATION,
Respondents,
and
NEVADA STATE ENGINEER,
Defendant-Appellant.
2 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
PYRAMID LAKE PAIUTE TRIBE OF No. 11-16475
INDIANS; UNITED STATES OF
AMERICA, D.C. No.
Plaintiffs-Appellees, 3:73-cv-00201-
LDG
v.
NEVADA WATERFOWL
ASSOCIATION,
Respondent,
NEVADA STATE ENGINEER,
Defendant,
and
STATE OF NEVADA, DEPARTMENT OF
WILDLIFE,
Respondent-Appellant.
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 3
PYRAMID LAKE PAIUTE TRIBE OF No. 11-16482
INDIANS; UNITED STATES OF
AMERICA, D.C. No.
Plaintiffs-Appellees, 3:73-cv-00201-
LDG
v.
STATE OF NEVADA, DEPARTMENT OF OPINION
WILDLIFE,
Respondent,
NEVADA STATE ENGINEER,
Defendant,
NEVADA WATERFOWL
ASSOCIATION,
Respondent-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Argued and Submitted
April 18, 2013—San Francisco, California
Filed July 30, 2013
Before: Mary M. Schroeder, Sidney R. Thomas,
and Barry G. Silverman, Circuit Judges.
Opinion by Judge Thomas
4 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 5
Administrative Provision VII of the Alpine Decree because
the applications sought a change in the manner of use to a
non-irrigation purpose.
COUNSEL
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.
6 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
OPINION
THOMAS, Circuit Judge:
Almost from the time that explorers John C. Frémont and
Kit Carson first came upon the Truckee River and Pyramid
Lake,1 disputes have arisen about water rights. In this latest
chapter in a hundred-year litigation history, see Nevada v.
United States, 463 U.S. 110, 113 (1983) (summarizing
history), we consider whether diverting water to wetlands in
order to sustain wildlife habitat constitutes “irrigation.” We
conclude that, within the meaning of the federal court decree
governing water rights in the Newlands Reclamation Project,
it does not, and we affirm the judgment of the district court.
I
Two rivers flow through the Truckee River Basin, which
straddles the California-Nevada border in one of the nation’s
most arid regions: the Truckee and the Carson. The Carson
River “rises on the eastern slope of the High Sierra in Alpine
County, California, and flows north and northeast over a
course of about 170 miles, finally disappearing into Carson
sink.” Id. at 115. The Truckee River originates in Lake
Tahoe, flows north and east into Nevada, and terminates in
1
Frémont named the lake after a pyramid-shaped island in it. Arthur C.
Benke and Colbert E. Cushing, Rivers of North America 3 (2005). He and
Carson originally named the Truckee River as the Salmon Trout River
after the huge Lahontan cutthroat trout that ran up the river from Pyramid
Lake to spawn. The river was ultimately named after a Paiute chief. State
of Nevada Division of Water Resources, A Chronological History of Lake
Tahoe and the Truckee River and Related Water Issues (2013), available
at http://water.nv.gov/mapping/chronologies/truckee/part2.cfm (last
visited July 22, 2013).
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 7
Pyramid Lake, for which it provides the sole source of water.
United States v. Alpine Land & Reservoir Co., 878 F.2d 1217,
1219 (9th Cir. 1989) (Alpine II).
Pyramid Lake is “widely considered the most beautiful
desert lake in North America . . . .” Nevada, 463 U.S. at 114(internal quotation marks and citation omitted). It lies
entirely within the reservation of the Pyramid Lake Paiute
Tribe (the “Tribe”) and is the Tribe’s “aboriginal home.”
Alpine II, 878 F.2d at 1219. Historically, Pyramid Lake
supported a world-famous fishery of Lahontan cutthroat trout
and cui-ui sucker fish. Nevada, 463 U.S. at 114-15, 119 n.7.
Over the course of the twentieth century, however, diversion
of Truckee River water for agricultural use caused a dramatic
reduction in the lake’s surface area. Alpine II, 878 F.2d at
1220. As a result, a delta formed at the mouth of the Truckee
River, choking off access to spawning grounds used by
Pyramid Lake’s native fish populations and driving them to
the brink of extinction. Id.The large-scale diversion of water for agricultural use in
the Truckee River basin is facilitated by the Newlands Project
(the “Project”), one of the first federal reclamation efforts
commenced under the authority of the Reclamation Act of
1902, ch. 1093, 32 Stat. 388, codified at 43 U.S.C.
§§ 371–600e. The Reclamation Act gave the federal
government “a prominent role in the development of the
West,” by authorizing the Secretary of the Interior “to
withdraw from public entry lands in specified western States,
reclaim the lands through irrigation projects, and then to
restore the lands to entry pursuant to the homestead laws and
certain conditions imposed by the Act itself.” Nevada,
463 U.S. at 115. Pursuant to this authority, the Secretary
withdrew from the public domain approximately 232,800
8 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
acres of land in western Nevada to establish the Newlands
Project. United States v. Alpine Land & Reservoir Co.,
291 F.3d 1062, 1066 (9th Cir. 2002) (Alpine V). The Project
“was designed to irrigate a substantial amount of this land
with water from the Truckee and Carson Rivers, thereby
turning wasteland into farmland.” Alpine II, 878 F.2d at 1220(footnote omitted).
Lands served by the Project are divided into the “Truckee
Division” and the “Carson Division.” United States v. Alpine
Land & Reservoir Co., 887 F.2d 207, 208 (9th Cir. 1989)
(Alpine III). At the Derby Diversion Dam east of Sparks,
Nevada, part of the Truckee River’s flow is diverted from its
natural course to Pyramid Lake. Id. A portion of that
diverted water supplies irrigators in the Truckee Division; the
remainder is impounded in the Lahontan Reservoir and
released into the Carson River to supply irrigators in the
Carson Division. Id. “Because diversions from the Carson
River do not directly affect Pyramid Lake, the Tribe has
sought and obtained judicial rulings that Carson River flows
should be utilized whenever possible, before Truckee River
flows, to supply the Project with its necessary water.” Id. at
210 n.2 (citing Pyramid Lake Paiute Tribe of Indians v.
Morton, 354 F. Supp. 252 (D. D.C. 1973)). Thus, we have
acknowledged that decreasing water demand in the Carson
Division correspondingly decreases the quantity of Truckee
River water used there, which in turn increases flows to
Pyramid Lake. Id.Two federal court decrees—products of suits by the
United States to quiet title to Truckee and Carson River
water—govern water rights in the Newlands Project. The Orr
Ditch Decree, In Equity Dkt. No. A3, slip op. (D. Nev. Sept.
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 9
8, 1944), allocates water rights on the Truckee River,2 while
the Alpine Decree, Civil No. D-183, slip op. (D. Nev. Oct. 28,
1980), governs the Carson River water rights at issue in this
appeal.3 The Alpine Decree establishes “water duties” for
different categories of irrigable lands within the Project,
which articulate the maximum quantity of Project water that
a landowner may apply to a particular parcel. The water duty
for the Project bottom lands at issue in this appeal is 3.5 acre-
feet per acre (“afa”), while the duty for higher-elevation
“bench lands” is 4.5 afa. United States v. Alpine Land &
Reservoir Co., 503 F. Supp. 877, 888 (D. Nev. 1980). These
figures are based on the quantity of water needed to grow
alfalfa, the dominant crop in the Newlands Project. Id.Because some water is inevitably lost to evaporation or
during transport, the water duties are set somewhat higher
than the quantity of water actually taken up by the alfalfa
plants. Specifically, the 3.5 afa water duty at issue in this
case includes a “consumptive use” portion of 2.99
afa—which accounts for the quantity of water actually
consumed by crop growth—plus a “non-consumptive use”
portion of 0.51 afa. Id.2
Under the Orr Ditch Decree, the Pyramid Lake Paiute Tribe has the
right to divert 58.7 second feet and 12,412 acre feet of water per year from
the Truckee River to irrigate Reservation lands. Nevada, 463 U.S. at117–18. The United States has the right to divert 1,500 cubic feet per
second to irrigate land within the Newlands Project. Id.3
The Alpine Decree allocates the full flow of the Carson River above
Lahontan Dam to the United States for distribution to landowners in the
Newlands Project. See United States v. Alpine Land & Reservoir Co.,
503 F. Supp. 877 (D. Nev. 1980). The Tribe has no decreed water rights
in the Carson River.
10 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
The Alpine Decree also establishes rules for transferring
decreed water rights to new locations and uses within the
Project. Alpine V, 291 F.3d at 1066–67. Of significance to
this appeal, Administrative Provision VII of the Decree states
that a party may only transfer the consumptive use portion of
its water right to a use other than irrigation.4 See Alpine
Land & Reservoir Co., 503 F. Supp. at 893. Thus, a
landowner in the Project’s bottom lands who applies to
change the manner of use for an irrigation water right can
only apply 2.99 afa to the new use; the 0.51 afa non-
consumptive use portion must stay in the river. This
limitation is designed to protect the efficiency benefits of the
“return-flow” method of irrigation practiced in the Newlands
Project. Id. Under this method, water is diverted into
centralized ditches or canals, applied to the land of the most
senior appropriator,5 and then allowed to run or seep onto
adjacent parcels or into another diversion canal. Id. at
891–92. The Alpine Decree court found this method more
efficient than irrigation by direct diversions to each
landowner via individual irrigation ditches. Id. at 892. It also
found that allowing holders of irrigation water rights to
change the manner of use to a non-irrigation purpose would
4
Administrative Provision VII states, in relevant part, that “[c]hange in
manner of use applications from use for irrigation to any other use
. . . shall be allowed only for the net consumptive use of the water as
determined by this Decree.” Alpine Decree, Civil No. D-183, slip op. at
161–62.
5
Under the Western water law maxim of “first in time, first in right,”
landowners who secure water rights earlier in time—so-called “senior”
rights-holders—are entitled to take their share of water in times of scarcity
before those with later-secured “junior” rights. E.g., Charles F.
Wilkinson, Western Water Law in Transition, 56 U. Colo. L. Rev. 317,
319–20 (1985).
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 11
undermine the efficacy of the return-flow method by
transferring the 0.51 afa non-consumptive use portion of
those rights—which previously reached downstream users as
return flows—to a consumptive use. Id. at 893. To address
this issue, Administrative Provision VII’s prohibition on
transferring the non-consumptive use portion of irrigation
rights to other uses ensures that “[w]ater that has been
allowed in the duties for purposes of irrigation coverage
could not then be changed to a consumptive use and
disappear from the return flows to other water right lands or
the river.” Id.
Under the Alpine Decree, the Nevada State Engineer
adjudicates applications to change the manner of use, place of
use, or place of diversion for decreed water rights according
to Nevada law. Id. However, the U.S. District Court for the
District of Nevada, which issued the Alpine Decree, retains
jurisdiction over challenges to the State Engineer’s decisions
on change applications. Id.; Nev. Rev. Stat. § 533.450(1).
II
This appeal concerns applications filed by the Nevada
Department of Wildlife (“the Department”) and the Nevada
Waterfowl Association (“the 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.6 Like Pyramid Lake, the Lahontan Valley wetlands
have suffered from the systematic diversion of water to
6
The Department manages the wildlife refuge at Carson Lake and
Pasture under an agreement with the United States Department of the
Interior.
12 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
landowners in the Newlands Project. See United States v.
Alpine Land & Reservoir Co., 341 F.3d 1172, 1176 (9th Cir.
2003) (Alpine VII) (describing impacts).
Historically, the Carson River supported an average of
150,000 acres of wetlands, which provided important habitat
for waterfowl, shorebirds, and other wildlife. “The Project,
however, altered the natural hydrological flow in the
wetlands, as flooding that had previously sent springtime
flows down the Carson River into the marshes was contained
and diverted into Project irrigation canals for delivery to
newly created farmlands in the Carson Division of the
Project.” Id. As a result, “the Lahontan Valley wetlands and
marshes largely dried up.” Id. (citing Churchill Cnty. v.
Norton, 276 F.3d 1060, 1068 (9th Cir. 2001)). To stave off
further habitat loss, Congress authorized the Secretary of the
Interior and Nevada conservation agencies to acquire and
transfer water rights from willing landowners in the
Newlands Project to the wetlands. See id. at 1176–77.
At issue are three applications submitted by the
Department and the Association (collectively, the
“Applicants”) to the State Engineer to transfer water rights
from agricultural lands in the Carson Division to Carson Lake
and Pasture to sustain wildlife habitat. The Applicants
contend that they seek only to change the water’s place of
use, but not its manner of use. Because they propose to use
the transferred water to support the growth of plants used by
wildlife,7 they argue that the intended use of water at Carson
Lake and Pasture constitutes irrigation. Relying on this
7
The plants the Applicants wish to cultivate at Carson Lake and Pasture
include Sago pond weed, widgeon grass, alkalai bulrush, saltgrass, hard
stem bulrush, red goosefoot, smart weeds, and water grass millets.
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 13
theory, the Applicants sought to transfer both the
consumptive and non-consumptive use portions of the water
rights at issue.8
The Tribe and the United States protested the applications
before the State Engineer,9 claiming that the applications
violate Administrative Provision VII of the Alpine Decree
because they seek to transfer the non-consumptive use portion
of agricultural irrigation rights to a non-irrigation use,
namely, use for “recreation, wildlife and/or the maintenance
and preservation of wetlands.” The State Engineer rejected
this argument, finding that the Applicants’ proposed use of
water at Carson Lake and Pasture “can be described as
irrigation” because it involves “the provision of water for
plant growth.” Because he found that the applications do not
seek to change the manner of use from irrigation to another
category, the State Engineer approved the applications to
transfer the full water duty for the rights at issue.
The Tribe and the United States sought review of the
State Engineer’s decision in the U.S. District Court for the
District of Nevada, invoking its reserved jurisdiction under
the Alpine Decree. See United States v. Alpine Land &
8
The Association filed applications 71775 and 73574, which both seek
to transfer the full 3.5 afa water duty from agricultural use on private lands
within the Project to Carson Lake and Pasture. In application 73444, The
Department seeks to transfer only the 0.51 afa non-consumptive use
portion of the rights at issue because the non-consumptive use portion was
transferred under an earlier application.
9
Due to administrative oversight, the United States joined the Tribe in
protesting only one of the three transfer applications at issue. However,
since all three applications raise the same legal issue, that fact is not
material to this appeal.
14 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
Reservoir Co./Churchill Cnty. v. Turnipseed, 174 F.3d 1007,
1011 (9th Cir. 1999) (affirming that, in the Alpine Decree, the
district court reserved jurisdiction to review adjudications of
transfer applications for decreed water rights). The district
court held that the Applicants’ proposed use of water at
Carson Lake and Pasture is not “irrigation” within the
meaning of the Alpine Decree. United States v. Alpine Land
& Reservoir Co., 788 F. Supp. 2d 1209, 1219 (D. Nev. 2011).
It explained that,
[t]aken as a whole, the Alpine Decree’s
references to irrigation establish that the only
irrigation use contemplated by the Decree was
for agriculture, whether for productively
growing valuable cash crops or for pasture
lands. While the word “irrigation” can be
defined as any application of a liquid, the
Alpine Decree considered and referred to
irrigation use in the context of agriculture, and
specifically to grow cash crops and pasture.
The decree court itself recognized that one of
its central tasks was to establish a water duty
to irrigate farmlands.
Id. at 1217 (footnote omitted). The district court also
observed that Nevada law, which the Alpine Decree
incorporates as the source of substantive water law, defines
“wildlife purposes” as a distinct use of water. Id. at 1218
(citing Nev. Rev. Stat. § 533.023).10 It concluded that the
10
That provision defines “wildlife purposes” to “include[] the watering
of wildlife and the establishment and maintenance of wetlands, fisheries
and other wildlife habitats.” Nev. Rev. Stat. § 533.023. There is no
statutory definition of “irrigation” under Nevada law.
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 15
Applicants’ proposed use of water falls within the state law
definition of “wildlife purposes,” which further evidences that
it is not “irrigation.” Id. Thus, the district court reversed the
decision of the State Engineer and vacated his approval of the
transfer applications. Id. at 1219.
This timely appeal followed.
III
At the outset, the Association argues that the Tribe lacks
standing under Article III and the Alpine Decree because it
does not allege injury to its decreed water rights. The
Association is correct that the Tribe lacks water rights under
the Alpine Decree, and its rights to Truckee River water under
the Orr Ditch Decree are not threatened by the State
Engineer’s decision in this case. However, the Tribe satisfies
the constitutional standing requirement by plausibly alleging
that the Applicants’ proposed transfer of water rights to
Carson Lake and Pasture will increase demand for Truckee
River water in the Carson Division and thereby diminish
flows to Pyramid Lake. Moreover, the Tribe properly
invoked the district court’s reserved jurisdiction to review
adjudications of water rights under the Alpine Decree.
It is well established that “the irreducible constitutional
minimum of standing contains three elements”: (1) a concrete
and particularized injury that is “actual or imminent, not
conjectural or hypothetical”; (2) a causal connection between
the injury and the defendant’s challenged conduct; and (3) a
likelihood that a favorable decision will redress that injury.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(internal quotation marks and citations omitted). Only the
first of these elements is at issue, and the Tribe’s allegation
16 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
that the State Engineer’s decision will increase demand for
Truckee River water in the Carson Division and thereby
reduce flows to Pyramid Lake establishes a cognizable injury.
The Association does not dispute the Alpine Decree court’s
finding that reducing return flows in the Carson Division
diminishes irrigation efficiency, Alpine Land & Reservoir
Co., 503 F. Supp. at 892, which prompts increased diversions
from the Truckee River and reduces flows to Pyramid Lake,
Alpine III, 887 F.2d at 210 n.2. And the Tribe’s interest in
maximizing flows to Pyramid Lake—which lies entirely
within the boundaries of the Tribe’s reservation and is central
to its cultural and economic life—is well established. See,
e.g., Alpine III, 887 F.2d at 208 (recognizing that, “[b]ecause
any water diverted from the Truckee cannot be recovered for
use at the Tribe’s fishery at Pyramid Lake, the Tribe is vitally
interested in limiting the diversion of Truckee River water”).
That the individual permitting decisions at issue in this case
may have a de minimis impact on flows to Pyramid Lake
does not defeat the Tribe’s standing. See id. at 214(recognizing the Tribe’s standing to challenge individual
adjudications by the State Engineer that cumulatively affect
the Tribe’s interests in the Truckee River and Pyramid
Lake).11
11
Refusing to recognize the Tribe’s standing because of the de minimis
impact of individual permit decisions would, as a practical matter, leave
the Tribe without recourse to protect its interest in maximizing flows to
Pyramid Lake. As we explained in Alpine III, individual adjudications
that incrementally increase diversions from the Truckee River can effect
a death by a thousand cuts for Pyramid Lake. See Alpine III, 887 F.2d at
214 (recognizing that “the total effect on the Tribe’s water rights is
ultimately the sum of the individual parts”). Moreover, the Applicants
admit that this is a test case and, if successful, they intend to transfer
thousands of acre-feet of additional water under the same theory. The
only way the Tribe can challenge the potential loss of thousands of acre-
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 17
In addition, the Tribe properly invoked the district court’s
reserved jurisdiction to review the State Engineer’s
adjudication of decreed water rights. In Orr Ditch IV, we
held that the district court lacks jurisdiction to review the
State Engineer’s adjudication of non-decreed water rights
unless the plaintiff alleges injury to its decreed water rights.
Orr Ditch IV, 600 F.3d at 1160. Since the district court’s
reserved jurisdiction over the State Engineer’s decisions is
“an adjunct to its jurisdiction over the quiet title action” that
spawned the Decree, Alpine II, 878 F.2d at 1219 n.2, that
jurisdiction is necessarily limited to review of the Engineer’s
decisions that affect rights granted under the Decree. Here,
however, the plaintiffs need not allege injury to their decreed
water rights because the challenged transfer applications
concern decreed water rights. Having cleared the
constitutional standing hurdle, the Tribe is free to invoke the
district court’s undisputed jurisdiction to review decisions of
the State Engineer that concern decreed water rights.12
IV
The sole issue on the merits is whether the Applicants’
proposed use of water at Carson Lake and Pasture constitutes
“irrigation” within the meaning of the Alpine Decree. We
review the district court’s interpretation of the Alpine Decree
de novo. United States v. Orr Water Ditch Co., 914 F.2d
feet of water that would otherwise reach Pyramid Lake is to challenge the
State Engineer’s approval of individual transfer applications.
12
Even if the Association were correct that the Tribe cannot invoke the
district court’s Alpine Decree jurisdiction in this case, jurisdiction would
be proper under 28 U.S.C. § 1345, which vests district courts with original
jurisdiction in all civil actions commenced by the United States.
18 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
1302, 1307 (9th Cir. 1990) (Orr Ditch I). Whether we rely on
the language and history of the Alpine Decree itself or the
provisions of Nevada law incorporated therein, we agree with
the district court that the proposed use of water is not
irrigation.
Though it does not define “irrigation,” the Alpine Decree
expresses a singular concern with the provision of irrigation
water for agricultural use, and its references to irrigation
uniformly relate to agriculture. For instance, the Decree’s
first administrative provision states that the lands in the
Newlands Project “are dry and arid and irrigation is necessary
for the production of valuable crops thereon.” Alpine
Decree, Civ. No. D-183, slip op. at 157 (emphasis added).
Consistent with this finding, decreed water rights are based
on the quantity of water “necessary and sufficient for the
reasonable and economical irrigation of crops thereon.” Id.In its accompanying opinion, the district court stated that one
of its “central tasks” in fashioning the Alpine Decree was to
“establish a clear and specific water duty for both the
Newlands Project farmlands and the upper Carson
farmlands.” Alpine Land & Reservoir, 503 F. Supp. at 887.
The Applicants fail to identify any language in the Decree or
accompanying opinion suggesting that the Decree’s
references to irrigation encompass anything more than the
application of water to cultivate crops for human or livestock
consumption.
Based on this language, we have similarly described the
purpose of the Newlands Project and the governing decrees
as facilitating agricultural irrigation. See, e.g., Alpine VI,
340 F.3d at 907 (stating that “[t]he Project was intended to
convert some of the country’s most arid land into irrigated
farmland . . . .”); Alpine V, 291 F.3d at 1066 (stating that
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 19
“[t]he Project was designed to irrigate a substantial area . . .
in order to facilitate its conversion to farmland”) (emphasis
added); Alpine II, 878 F.2d at 1220 (citations and footnote
omitted) (describing the Project’s purpose as “turning
wasteland into farmland” by “irrigat[ing] a substantial
amount of [the Project] land with water from the Truckee and
Carson Rivers . . . .”); United States v. Alpine Land &
Reservoir Co., 697 F.2d 851, 860 (9th Cir. 1983) (Alpine I)
(stating that the Project’s Lahontan reservoir, “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 . . . . .”). We find no contrary evidence that would
support our departure from this longstanding interpretation.13
13
Though not addressing the Newlands Project specifically, decisions
of the Nevada Supreme Court and the United States Supreme Court
likewise equate “irrigation” with agricultural use. See, e.g., United States
v. California, 438 U.S. 645, 648–49 (1978) (describing the origins of
modern irrigation in Mormon pioneers’ cultivation of potatoes); id. at 651(distinguishing the use of water for “irrigation” from use for “the
protection of fish and wildlife”); Prosole v. Steamboat Canal Co., 140 P.
720, 722–23 (Nev. 1914) (equating an “irrigation” right with “a water
right for agricultural purposes” and describing the purpose of water law
as facilitating “the actual economic application of the exceedingly scarce,
but all-important element, water to the soil, with the end in view that the
latter may perform its highest function in producing sustenance for
humanity”) (emphasis added). Similarly, water law scholars consistently
equate irrigation with agriculture and distinguish irrigation from the use
of water for wildlife, recreation, or aesthetic purposes. See, e.g., A. Dan
Tarlock, The Future of Prior Appropriation in the West, 41 Nat. Res. J.
769, 770, 772 (2001) (describing the goal of federal reclamation as
“settl[ing] the West with irrigated family farms,” and distinguishing
agricultural irrigation rights, which are the “core” concern of Western
water law, from contemporary uses of water for urban and environmental
purposes).
20 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
Moreover, the undisputed facts indicate that the
Applicants’ proposed use of water at Carson Lake and
Pasture constitutes a “wildlife” use under Nevada law, which
is a distinct use from irrigation. See State v. Morros,
766 P.2d 263, 268 (Nev. 1988) (stating that wildlife watering
is encompassed within the state law definition of recreation
as a beneficial use of water). Nevada law governs “both the
process and the substance of a proposed transfer of water
rights” under the Alpine Decree, Alpine II, 878 F.2d at 1223,
and defines the “beneficial uses” to which Project water may
be put, Alpine I, 697 F.2d at 854. Thus, we look to the
Nevada water code to determine whether the Applicants in
fact propose to change the manner of use for their transferred
water rights from “irrigation” to “wildlife” use.14
The Nevada water code defines “wildlife purposes” to
“include the watering of wildlife and the establishment and
maintenance of wetlands, fisheries, and other wildlife
habitats.” Nev. Rev. Stat. § 533.023.15 On its face, this
14
Though Nevada law is the source of substantive water law governing
rights under the Alpine Decree, we need not consider, let alone defer to,
the opinions of the Department and the State Engineer that the proposed
use of water at Carson Lake and Pasture qualifies as irrigation. At bottom,
this appeal requires us to determine the meaning of “irrigation” in
Administrative Provision VII of the Alpine Decree, a question we review
de novo according to the language, structure, and purpose of the Decree
and the substantive state law provisions incorporated therein.
15
That the Nevada legislature codified this definition nine years after
entry of the Alpine Decree is of no moment. “It is settled that beneficial
use expresses a dynamic concept, which is a variable according to
conditions, and therefore over time.” Alpine I, 697 F.2d at 855 (internal
quotation marks and citations omitted). Thus, we acknowledge
developments in state law when defining and distinguishing between
beneficial uses of water in the Newlands Project. It is also immaterial that
PYRAMID LAKE PAIUTE TRIBE V. NEVADA 21
definition encompasses the Applicants’ proposed use of water
to maintain wildlife habitat at Carson Lake and Pasture.
Moreover, the code distinguishes between “wildlife
purposes” and other beneficial water uses such as agricultural
irrigation. See Nev. Rev. Stat. §§ 533.135 (establishing $60
fee for proof of water right for livestock or wildlife purposes
and $120 fee for proof of water rights for all other purposes),
533.0243(1) (declaring state policy of allowing the temporary
transfer of agricultural water rights to wildlife and other
instream uses). Thus, the Applicants’ contention that their
proposed use of water qualifies as both “wildlife” and
“irrigation” lacks merit.
In an abstract sense, the Applicants’ argument has
technical support insofar as their proposed use of water at
Carson Lake and Pasture, like the cultivation of alfalfa or
livestock pasture, involves the mechanical application of
water to grow plants. And the Applicants and State Engineer
cite dictionaries, irrigation textbooks, and state agency
publications that expansively define “irrigation” so as to
encompass their proposed use. But in the context of the
Alpine Decree and the Nevada water code, the argument
plainly fails. Both the Decree and the state 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. There is simply
no indication that either of the two relevant sources embraces
the application of water to sustain wildlife habitat in its
the Nevada legislature declined to amend the statutory provision
enumerating beneficial uses of water to explicitly include “wildlife
purposes” as a distinct use. Because the Morros court determined that
wildlife use is a component of recreation, which is statutorily defined as
a beneficial use, such amendment was unnecessary.
22 PYRAMID LAKE PAIUTE TRIBE V. NEVADA
definition of “irrigation.” Therefore, we agree 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
seek a change in the manner of use to a non-irrigation
purpose. While we recognize the salutary purpose to which
the Applicants wish to apply water at Carson Lake and
Pasture, they may not do so in contravention of the express
limitation on transfers of water rights articulated in the Alpine
Decree.
V
In sum, the district court correctly concluded that
diversion of water for waterfowl habitat is not “irrigation”
within the meaning of the Alpine decree. We affirm the
judgment of the district court.
AFFIRMED.