United States v. Board of Directors of the Truckee-Carson Irrigation District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-15474
Plaintiff-Appellant,
D.C. No.
and 3:95-cv-00757-
HDM
PYRAMID LAKE PAIUTE TRIBE OF
INDIANS,
Intervenor-Plaintiff,
v.
BOARD OF DIRECTORS OF THE
TRUCKEE-CARSON IRRIGATION
DISTRICT , individually, and as
Representatives of the Class of all
Water Users in the Newlands
Reclamation Project; TRUCKEE-
CARSON IRRIGATION DISTRICT ,
Defendants-Appellees,
and
STATE OF NEVADA , Department of
Conservation and Natural Resources,
Division of Wildlife and Division of
State Lands; CHURCHILL COUNTY ;
DODGE BROTHERS AND DODGE JR.
FAMILY TRUST ; DAVID P.
HARRIGAN ; GEORGE AND SHELLY
2 UNITED STATES V . BOARD OF DIRECTORS
RAE RAKUSHIN ; WILLIAM D. AND
GWENDOLYN WASHBURN ; MARVIN
WEISHAUPT ; HOWARD D. WOLF
FAMILY TRUST ; RAY CONLAN ;
CORKILL BROS., INC.; CALVIN R.
MOFFITT AND CANDACE J. MOFFITT ;
BELL FAMILY TRUST ; LARRY L.
FRITZ FAMILY TRUST ; DAVID L.
MATLEY AND CHRISTINE L. MATLEY
FAMILY TRUST AND DAVID MATLEY ;
HAROLD G. AND RHONDA JOHNSON
AND JOHNSON FAMILY TRUST ; A&A
DAIRY ; JOYCE LOHR; PERALDO
BROTHERS; STILLWATER FARMS,
INC.; CHARLES P. FREY , JR. AND
DEBRA S. FREY ; NORMAN W. FREY ;
FALLON -PAIUTE SHOSHONE TRIBE ,
Intervenor-Defendants.
UNITED STATES OF AMERICA , No. 12-15476
Plaintiff,
D.C. No.
and 3:95-cv-00757-
HDM
PYRAMID LAKE PAIUTE TRIBE OF
INDIANS,
Intervenor-Plaintiff–Appellant,
v.
BOARD OF DIRECTORS OF THE
TRUCKEE-CARSON IRRIGATION
UNITED STATES V . BOARD OF DIRECTORS 3
DISTRICT , individually, and as
Representatives of the Class of all
Water Users in the Newlands
Reclamation Project; TRUCKEE-
CARSON IRRIGATION DISTRICT ,
Defendants-Appellees,
and
STATE OF NEVADA , Department of
Conservation and Natural Resources,
Division of Wildlife and Division of
State Lands; CHURCHILL COUNTY ;
DODGE BROTHERS AND DODGE JR.
FAMILY TRUST ; DAVID P.
HARRIGAN ; GEORGE AND SHELLY
RAE RAKUSHIN ; WILLIAM D. AND
GWENDOLYN WASHBURN ; MARVIN
WEISHAUPT ; HOWARD D. WOLF
FAMILY TRUST ; RAY CONLAN ;
CORKILL BROS., INC.; CALVIN R.
MOFFITT AND CANDACE J. MOFFITT ;
BELL FAMILY TRUST ; LARRY L.
FRITZ FAMILY TRUST ; DAVID L.
MATLEY AND CHRISTINE L. MATLEY
FAMILY TRUST AND DAVID MATLEY ;
HAROLD G. AND RHONDA JOHNSON
AND JOHNSON FAMILY TRUST ; A&A
DAIRY ; JOYCE LOHR; PERALDO
BROTHERS; STILLWATER FARMS,
INC.; CHARLES P. FREY , JR. AND
4 UNITED STATES V . BOARD OF DIRECTORS
DEBRA S. FREY ; NORMAN W. FREY ;
FALLON -PAIUTE SHOSHONE TRIBE ,
Intervenor-Defendants.
UNITED STATES OF AMERICA , No. 12-15594
Plaintiff-Appellee,
D.C. No.
PYRAMID LAKE PAIUTE TRIBE OF 3:95-cv-00757-
INDIANS, HDM
Intervenor-Plaintiff–Appellee,
v.
BOARD OF DIRECTORS OF THE
TRUCKEE-CARSON IRRIGATION
DISTRICT , individually, and as
Representatives of the Class of all
Water Users in the Newlands
Reclamation Project; TRUCKEE-
CARSON IRRIGATION DISTRICT ,
Defendants,
STATE OF NEVADA , Department of
Conservation and Natural Resources,
Division of Wildlife and Division of
State Lands; CHURCHILL COUNTY ;
DODGE BROTHERS AND DODGE JR.
FAMILY TRUST ; DAVID P.
HARRIGAN ; GEORGE AND SHELLY
RAE RAKUSHIN ; WILLIAM D. AND
UNITED STATES V . BOARD OF DIRECTORS 5
GWENDOLYN WASHBURN ; MARVIN
WEISHAUPT ; HOWARD D. WOLF
FAMILY TRUST ,
Intervenor-Defendants,
STILLWATER FARMS, INC.; CHARLES
P. FREY , JR. AND DEBRA S. FREY ;
NORMAN W. FREY ; FALLON -PAIUTE
SHOSHONE TRIBE ,
Intervenor-Defendants,
and
RAY CONLAN ; CORKILL BROS., INC.;
CALVIN R. MOFFITT AND CANDACE
J. MOFFITT ; BELL FAMILY TRUST ;
LARRY L. FRITZ FAMILY TRUST ;
DAVID L. MATLEY AND CHRISTINE
L. MATLEY FAMILY TRUST AND
DAVID MATLEY ; HAROLD G. AND
RHONDA JOHNSON AND JOHNSON
FAMILY TRUST ; A&A DAIRY ; JOYCE
LOHR; PERALDO BROTHERS,
Intervenor-Defendants–Appellants.
6 UNITED STATES V . BOARD OF DIRECTORS
UNITED STATES OF AMERICA , No. 12-15595
Plaintiff-Appellee,
D.C. No.
PYRAMID LAKE PAIUTE TRIBE OF 3:95-cv-00757-
INDIANS, HDM
Intervenor-Plaintiff–Appellee,
v.
BOARD OF DIRECTORS OF THE
TRUCKEE-CARSON IRRIGATION
DISTRICT , individually, and as
Representatives of the Class of all
Water Users in the Newlands
Reclamation Project; TRUCKEE-
CARSON IRRIGATION DISTRICT ,
Defendants,
STATE OF NEVADA , Department of
Conservation and Natural Resources,
Division of Wildlife and Division of
State Lands; DODGE BROTHERS AND
DODGE JR. FAMILY TRUST ; DAVID P.
HARRIGAN ; GEORGE AND SHELLY
RAE RAKUSHIN ; WILLIAM D. AND
GWENDOLYN WASHBURN ; MARVIN
WEISHAUPT ; HOWARD D. WOLF
FAMILY TRUST ; CITY OF FALLON ;
RAY CONLAN ; CORKILL BROS., INC.;
CALVIN R. MOFFITT AND CANDACE
J. MOFFITT ; BELL FAMILY TRUST ;
LARRY L. FRITZ FAMILY TRUST ;
DAVID L. MATLEY AND CHRISTINE
UNITED STATES V . BOARD OF DIRECTORS 7
L. MATLEY FAMILY TRUST AND
DAVID MATLEY ; HAROLD G. AND
RHONDA JOHNSON AND JOHNSON
FAMILY TRUST ; A&A DAIRY ; JOYCE
LOHR; PERALDO BROTHERS;
STILLWATER FARMS, INC.; CHARLES
P. FREY , JR. AND DEBRA S. FREY ;
NORMAN W. FREY ; FALLON -PAIUTE
SHOSHONE TRIBE ,
Intervenor-Defendants,
and
CHURCHILL COUNTY ,
Intervenor-Defendant–Appellant.
UNITED STATES OF AMERICA , No. 12-15599
Plaintiff-Appellee,
D.C. No.
PYRAMID LAKE PAIUTE TRIBE OF 3:95-cv-00757-
INDIANS, HDM
Intervenor-Plaintiff–Appellee,
OPINION
v.
BOARD OF DIRECTORS OF THE
TRUCKEE-CARSON IRRIGATION
DISTRICT , individually, and as
Representatives of the Class of all
Water Users in the Newlands
8 UNITED STATES V . BOARD OF DIRECTORS
Reclamation Project; TRUCKEE-
CARSON IRRIGATION DISTRICT ,
Defendants,
CHURCHILL COUNTY ; DODGE
BROTHERS AND DODGE JR. FAMILY
TRUST ; DAVID P. HARRIGAN ;
GEORGE AND SHELLY RAE
RAKUSHIN ; WILLIAM D. AND
GWENDOLYN WASHBURN ; MARVIN
WEISHAUPT ; HOWARD D. WOLF
FAMILY TRUST ; RAY CONLAN ;
CORKILL BROS., INC.; CALVIN R.
MOFFITT AND CANDACE J. MOFFITT ;
BELL FAMILY TRUST ; LARRY L.
FRITZ FAMILY TRUST ; DAVID L.
MATLEY AND CHRISTINE L. MATLEY
FAMILY TRUST AND DAVID MATLEY ;
HAROLD G. AND RHONDA JOHNSON
AND JOHNSON FAMILY TRUST ; A&A
DAIRY ; JOYCE LOHR; PERALDO
BROTHERS; STILLWATER FARMS,
INC.; CHARLES P. FREY , JR. AND
DEBRA S. FREY ; NORMAN W. FREY ;
FALLON -PAIUTE SHOSHONE TRIBE ,
Intervenor-Defendants,
and
UNITED STATES V . BOARD OF DIRECTORS 9
STATE OF NEVADA , Department of
Conservation and Natural Resources,
Division of Wildlife and Division of
State Lands,
Intervenor-Defendant–Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted
June 12, 2013—San Francisco, California
Filed July 22, 2013
Before: Mary M. Schroeder, Marsha S. Berzon,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Schroeder
SUMMARY*
Water Rights
The panel dismissed appeals from Churchill County and
the State of Nevada, withdrew the mandate in United States
v. Bell, No. 05-16154+, 602 F.3d 1074 (9th Cir. 2010), and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
10 UNITED STATES V . BOARD OF DIRECTORS
amended the opinion, and vacated the judgment of the district
court on remand in an action concerning diversion of water
from the Truckee and Carson Rivers to either irrigation use or
for the benefit of the Pyramid Lake Paiute Indian Tribe.
In the Bell case, the panel held that in calculating the
amount of excess water diversions, the district court had
failed appropriately to account for the margin of error with
respect to the gauges that measured the flow of the
diversions. The panel held that it was mistaken in its
understanding of the scope of the gauge error, and that it
should not have limited recalculation to the four years in
which the district court initially found excess diversions. The
panel held that it should have ordered recalculation of the
gauge error’s impact in all the years potentially affected. The
panel withdrew the mandate, and ordered the district court to
recalculate the effect of gauge error not only for the years
1974, 1975, 1978, and 1979, but for the years 1973, 1976,
1985, and 1986 as well, to determine the amount of any
excess diversions.
COUNSEL
Ignacia S. Moreno, Assistant Attorney General, Fred
Disheroon, David C. Shilton, Stephen M. MacFarlane, and
Katherine J. Barton (argued), United States Department of
Justice, Environmental & Natural Resources Division,
Washington, D.C., for Plaintiff-Appellant/Appellee United
States of America.
UNITED STATES V . BOARD OF DIRECTORS 11
Don Springmeyer (argued) and Christopher W. Mixson,
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, Las Vegas,
Nevada, for Intervenor-Plaintiff–Appellant/Appellee Pyramid
Lake Paiute Tribe of Indians.
Michael J. Van Zandt and Neil R. Bardack (argued), Hanson
Bridgett LLP, San Francisco, California, for
Defendants–Appellees/Appellants Board of Directors of the
Truckee-Carson Irrigation District and Truckee-Carson
Irrigation District.
Laura A. Schroeder and Therese A. Ure (argued), Schroeder
Law Offices, P.C., Reno, Nevada, for Intervenor Defendant:
Cross-Appellant/Appellee Churchill County, Nevada.
Catherine Cortez Masto, Attorney General; Nhu Q. Nguyen,
Senior Deputy Attorney General, Carson City, Nevada, for
Intervenor-Defendant–Appellant State of Nevada,
Department of Conservation and Natural Resources, Division
of Wildlife and Division of State Land.
Michael F. Mackedon, Mackedon, McCormick & King,
Fallon, Nevada, for Intervenor-Defendants–Appellees City of
Fallon, et al.
OPINION
SCHROEDER, Circuit Judge:
We deal in this appeal with what essentially amounts to
a footnote to the long-running litigation over how much water
from the Truckee and Carson Rivers should be diverted to
irrigation and how much should flow into Pyramid Lake for
12 UNITED STATES V . BOARD OF DIRECTORS
the benefit of the Pyramid Lake Paiute Indian Tribe (“the
Tribe”). See Nevada v. United States, 463 U.S. 110 (1983);
United States v. Bell, 602 F.3d 1074 (9th Cir. 2010); Pyramid
Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364 (9th Cir.
1989); Truckee-Carson Irrigation Dist. v. Sec’y of Dep’t of
Interior, 742 F.2d 527 (9th Cir. 1984) (“TCID v. Secretary”);
United States v. Alpine Land & Reservoir Co., 697 F.2d 851(9th Cir. 1983); Pyramid Lake Paiute Tribe of Indians v.
Morton, 354 F. Supp. 252 (D.D.C. 1973) (“Tribe v. Morton”).
The federal government and the Tribe now ask us to
reconsider one aspect of our most recent opinion. See Bell,
602 F.3d at 1085, 1087.
Bell concerned water that the Truckee-Carson Irrigation
District (“TCID”) diverted for irrigation between 1973 and
1988 and that the government claimed was in excess of the
amount allowed by applicable regulation. We held, among
other things, that in calculating the amount of excess
diversions, the district court had failed appropriately to
account for the margin of error with respect to the gauges that
measured the flow of the diversions. Id. at 1085. The district
court calculated the amount of water diverted by choosing the
low end of this margin of error and thus assigned all
uncertainty in the gauge flow calculations in favor of the
TCID and against the government and Tribe. Id. We
remanded for recalculation because there was no evidentiary
basis for that choice. It is this so-called “gauge error” ruling
that we now must consider in this appeal from the district
court’s judgment on remand.
A brief explanation is in order. Earlier in the Bell
opinion, in addressing the primary issues in that appeal, we
affirmed the district court’s order of recoupment for excess
diversions by the TCID for the years 1974, 1975, 1978, and
UNITED STATES V . BOARD OF DIRECTORS 13
1979. Id. The district court had rejected claims of excess
diversions in the other years between 1973 and 1988. In our
concluding paragraph, we remanded for recalculation of the
effect of gauge error in the four specific years in which the
district court had found excess diversions. Id. at 1087. On
remand, the government asked the court to recalculate gauge
error for those and additional years, but the district court
limited its recalculation to the four years specified in the
conclusion of the Bell opinion.
It now appears that our understanding of the scope of the
gauge error claim was mistaken and that the government was
claiming the gauge error calculation had affected the flow
measurement in other years as well. The government’s
contention has been that if the district court had not initially
calculated the amounts of water diverted by using the low end
of the margin of error, it may have found that there were
excess diversions in other years. The expert whose report the
government presented on remand found that if the calculation
of flow had been made without regard to the flawed gauge
error determination, TCID’s diversions would have exceeded
applicable limits not only in 1974, 1975, 1978, and 1979, but
also in four additional years—1973, 1976, 1983, and 1986.
We therefore should not have limited recalculation to the four
years in which the district court initially found excess
diversions. Rather, we should have ordered recalculation of
the gauge error’s impact in all the years potentially affected.
Our mistake in not ordering a broader remand is
understandable, for the parties made only passing references
in the briefs and in oral argument to the larger scope of the
gauge error issue, and the government did not move for
rehearing of our prior opinion to correct the mistake.
Nevertheless, a mistake there was. Indeed, in the body of our
14 UNITED STATES V . BOARD OF DIRECTORS
opinion, we suggested that the nature of the gauge error is one
that could permeate the analysis for all of the years at issue in
the appeal. Id. at 1085. Not limiting our analysis to specific
years, we there said that we were remanding “for the district
court to recalculate the amount of the diversions based on the
government’s published quantities and without regard to the
confidence intervals.” Id. We did not purport to limit the
recalculation to specific years. Id.We do not ordinarily disturb a judgment of the court after
the mandate has issued. See Calderon v. Thompson, 523 U.S.
538, 550 (1998) (noting the “profound interests in repose”
that attach to the mandate of a court of appeals). The
government has candidly acknowledged that it should have
moved for reconsideration of our prior opinion, but that it did
not recognize the mistake until the matter was before the
district court on remand. In light of the larger issues
presented in the earlier appeal that focused on the remedy for
the four specific years of excess diversions, it was easy
enough for us to assume that the gauge error was relevant
only to those years as well. Correction of the mandate after
it has issued is an extraordinary remedy that is not often
utilized. See id. at 549–50 (holding that while appellate
courts have the right to recall their own mandates, that power
can only be exercised in “extraordinary circumstances” and
is “one of last resort, to be held in reserve against grave,
unforeseen contingencies”).
But this is not ordinary litigation. The government
throughout several decades has been acting in a fiduciary
capacity on behalf of the Tribe, and the government has a
fiduciary duty to undertake all reasonable means to assure
that the waters that should flow to Pyramid Lake do so
pursuant to the controlling operating criteria and procedures
UNITED STATES V . BOARD OF DIRECTORS 15
(“OCAPs”). See Tribe v. Morton, 354 F. Supp. at 256. The
history of those standards have been well documented in prior
opinions, and we do not repeat it here. See Bell, 602 F.3d at
1078; Tribe v. Morton, 354 F. Supp. at 256; TCID v.
Secretary, 742 F.2d at 529–30. The OCAPs indisputably
stated the measure of how much water should have been
diverted, and the TCID’s diversions indisputably exceeded
these limits. Correcting the gauge error calculation therefore
serves to ensure that the Lake receives the water it needs to
sustain itself and the endangered species within it. This was
the focus and purpose of the limitations on diversions for
irrigation since their inception. Tribe v. Morton, 354 F. Supp.
at 254–55. If the mistake is not corrected, then the immediate
beneficiary will be the TCID, which is at fault for the excess
diversions, and the ultimate loser will be the Lake, which the
OCAPs are supposed to protect. The equities thus strongly
favor our fashioning a remedy to restore the proper balance
between the TCID/agricultural and Tribal/environmental
interests. See Graham v. Balcor Co., 241 F.3d 1246, 1248
(9th Cir. 2001) (per curiam) (holding that clarification of
previous mandate is appropriate when there is “good cause”
and to “prevent injustice”).
We cannot fault the district court in any way, for it
correctly followed our 2010 mandate. It was the mandate that
was in error, and that only we can correct. See Planned
Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life
Activists, 518 F.3d 1013, 1022 (9th Cir. 2008) (holding that
we may amend our mandate when it was erroneous even
though a party should have brought the mistake to our
attention). Only by withdrawing and correcting the mandate
can we order the district court to recalculate the effect of
gauge error, not only for the years 1974, 1975, 1978, and
16 UNITED STATES V . BOARD OF DIRECTORS
1979, but for the years 1973, 1976, 1985, and 1986 as well,
to determine the amount of any excess diversions.
We accordingly withdraw our earlier mandate and clarify
it by changing the final paragraph of our previous opinion to
read:
For the foregoing reasons, the judgment of the
district court with respect to prejudgment and
postjudgment interest is vacated and
remanded for further consideration. The
judgment with respect to amounts of
recoupment for excess diversions in 1974,
1975, 1978, 1979, and spills in 1979 and
1980, as well as the denial of recoupment for
excess diversions in the years 1973, 1976,
1985, and 1986, is vacated and remanded for
recalculation of the effect of gauge error. The
judgment with respect to spills from 1981–84
is vacated and remanded for a determination
of the amount of water spilled during those
years. The judgment of the district court is
otherwise affirmed.
With regard to 1985 and 1986, there may be merit to
TCID’s contention that there is an alternative ground in the
record for the district court’s finding that recoupment was
unavailable or limited for those years, namely, deviation from
the OCAP authorized by court order. We leave to the district
court to determine whether, and to what extent, this
consideration affects the recoupment available for 1985 and
1986 once the gauge error is taken out of the equation.
UNITED STATES V . BOARD OF DIRECTORS 17
We also have before us appeals by Churchill County and
the State of Nevada from the district court’s judgment on
remand. This judgment, however, did not alter the
obligations of either the County or the State pursuant to the
2005 judgment. They were not injured or affected in any way
by the judgment on remand from Bell, and thus do not have
standing on this appeal. See Knisley v. Network Assocs., Inc.,
312 F.3d 1123, 1126 (9th Cir. 2002).
CONCLUSION
Although we take the rare step of correcting a prior
mandate, the parties should not take from this opinion any
signal that decisions involving water diversions from the
Truckee and Carson have any less finality than decisions in
other cases. The rules of procedure and the purposes of res
judicata apply no differently here than in other cases.
Moreover, the function of judicial oversight in this and
related litigation has been to maintain the balance between
the competing interests of the reclamation system and the
interests of the Tribe and the environment. Nothing would do
more harm to the goal of sustaining that balance than
systemic uncertainty in the obligations of the parties. Our
decision today should be read in that light.
The appeals from Churchill County and the State of
Nevada are DISMISSED. Our previous mandate in Bell is
withdrawn and amended as provided in this opinion. The
judgment of the district court on remand is VACATED. The
matter is REMANDED for proceedings in accordance with
the Bell mandate as amended.