Appeals court upholds state ruling on Truckee water transfers
December 10, 2007
The 9th Circuit Court of Appeals on Monday upheld almost all of the state engineer’s rulings in a case involving Truckee River water rights.
The Pyramid Paiute Tribe had appealed a federal district court ruling in the case involving 10 different water rights holders in the Fernley area. It is just the latest chapter in a battle which has been in almost continuous litigation in the federal court system since 1917.
The issue in all 10 cases involves the owners’ rights to transfer their water rights to new owners or new parcels. The tribe sought to block the transfers, arguing they were forfeited or abandoned for a variety of reasons including that the water involved had not been used on the land it was deeded to, in several of the cases, for more than 30 years. But the Nevada state engineer’s office rejected the tribe’s arguments.
Tribal lawyers challenge many transfers within the Newlands Reclamation Project since, if they win, the water stays in the Truckee River and increases the flow, which ultimately reaches Pyramid Lake.
The appellate court opinion first spells out that Nevada water rights law “controls both the process and the substance of the issues before us.” And the court made it clear the opinion was in no way intended to change prior rulings interpreting that law and the Orr Ditch Decree which attempted to settle the issue in 1944. It states the idea is to apply the law and prior rulings to the 10 applications.
“Simply put, for the most part, the questions now placed before us do not raise any new legal issues,” the opinion states.
But the opinion expresses some frustration with the continual litigation over the Truckee River’s water.
“We appreciate that the state engineer and some of the applicants are becoming mighty tired of their trips to and from the federal court system,” Judge Ferdinand Fernandez wrote. “Thus we have tried to sharpen our statement of the rules that must be applied.
“Alas, we cannot bring this process to a close, but must let parts of it continue on their torturous path.”
The opinion affirms five of the 10 rulings by the state engineer, stating that he followed the law in approving the water rights transfers for those applicants, ruling correctly that they were not abandoned. The opinion also directs the tribe to pay those applicants for the cost of the litigation.
And the court approved most of the engineer’s rulings on the remaining five.
But the opinion reversed the state’s rulings on parts of three applications involving specific parcels of land in the Rambling River Ranches, the Wolf family and the DeBraga family cases.
Fernandez was joined by Judges John Noonan and Margaret McKeown in the ruling.
• Contact reporter Geoff Dornan at firstname.lastname@example.org or 687-8750.
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