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

United States Court of Appeals, Ninth Circuit

July 22, 2013

United States of America, Plaintiff-Appellant,
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 Pyramid Lake Paiute Tribe of Indians, Intervenor-Plaintiff, 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 Ra kush in; Willia m D. and Gwendolyn Washbu rn; 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. Fre y, Jr. and Debra S. Frey; Norman W. Frey; Fallon-Paiute Shoshone Tribe, Intervenor-Defendants. United States of America, Plaintiff, and Pyramid Lake Paiute Tribe of Indians, Intervenor-Plaintiff-Appellant,
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 Rae Ra kush in; Willia m D. and Gwendolyn Washbu rn; 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. Fre y, Jr. and Debra S. Frey; Norman W. Frey; Fallon-Paiute Shoshone Tribe, Intervenor-Defendants. United States of America, Plaintiff-Appellee, Pyramid Lake Paiute Tribe of Indians, 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 Ra kush in; Willia m D. and Gwendolyn Washbu rn; Marvin Weishaupt; Howard D. Wolf Family Trust, Intervenor-Defendants, Stillwater Farms, Inc .; Charles P. Frey, Jr. and DBoard of Directors of the Truckee-Carson Irrigation Districtebra 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. United States of America, Plaintiff-Appellee, Pyramid Lake Paiute Tribe of Indians, 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 Ra kush in; Willia m D. and Gwendolyn Washbu rn; 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 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, Plaintiff-Appellee, Pyramid Lake Paiute Tribe of Indians, 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, Churchill County; Dodge Brothers and Dodge Jr. Family Trust; David P. Harrigan; George and Shelly Rae Rakush in; Willia m D. and Gwendolyn Washbu rn; 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. Fre y, Jr. and Debra S. Frey; Norman W. Frey; Fallon-Paiute Shoshone Tribe, Intervenor-Defendants, and State of Nevada, Department of Conservation and Natural Resources, Division of Wildlife and Division of State Lands, Intervenor-Defendant-Appellant.

Argued and Submitted June 12, 2013—San Francisco, California.

Appeal from the United States District Court for the District of Nevada No. 3:95-cv-00757-HDM Howard D. McKibben, Senior District Judge, Presiding.

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.

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.

Before: Mary M. Schroeder, Marsha S. Berzon, and Jay S. Bybee, Circuit Judges.

OPINION

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 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 ...


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