United States v. Alpine Land & Reservoir Co.

FILED UNITED STATES COURT OF APPEALS JUL 01 2010 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S . CO UR T OF AP PE A LS UNITED STATES OF AMERICA, No. 08-16767 Plaintiff, D.C. No. 3:73-cv-00203-LDG District of Nevada, and Reno PYRAMID LAKE PAIUTE TRIBE OF INDIANS, ORDER WITHDRAWING MEMORANDUM DISPOSITION Petitioner - Appellant, AND DENYING PETITION FOR REHEARING v. ALPINE LAND & RESERVOIR CO., Defendant, NEVADA STATE ENGINEER, Respondent - Appellee, and ASPEN CREEK, LLC; DAYTON VALLEY INVESTORS, LLC; STANTON PARK DEVELOPMENT, INC., Real-parties-in-interest - Appellees. Before: HALL, W. FLETCHER and PAEZ, Circuit Judges. The memorandum disposition filed April 7, 2010 is withdrawn. A superseding memorandum disposition is being filed concurrently with this order. The panel has voted to deny the petition for panel rehearing. Appellant's motion to alter or amend is denied as moot. Appellees' petition for panel rehearing is denied. Subsequent petitions for rehearing or rehearing en banc may be filed. 2 FILED NOT FOR PUBLICATION JUL 01 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-16767 Plaintiff, D.C. No. 3:73-cv-00203-LDG and MEMORANDUM * PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Petitioner - Appellant, v. ALPINE LAND & RESERVOIR CO., Defendant, NEVADA STATE ENGINEER, Respondent - Appellee, and ASPEN CREEK, LLC; DAYTON VALLEY INVESTORS, LLC; STANTON PARK DEVELOPMENT, INC., Real-parties-in-interest - Appellees. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding Argued and Submitted July 15, 2009 San Francisco, California Before: HALL, W. FLETCHER and PAEZ, Circuit Judges. The legal issues in this appeal are similar to those we decided in United States v. Orr Water Ditch Co., No. 07-17001. This appeal arises from Ruling 5823 of the Nevada State Engineer, allocating groundwater rights in the Dayton Valley Hydrographic Basin ('the Basin'). The Pyramid Laµe Paiute Tribe of Indians ('the Tribe') opposed many of the applications. As with the Trucµee Basin applications, the Tribe contended that the groundwater in the Basin was over-appropriated, and that granting the applications would impair their federally decreed water rights under the Orr Ditch Decree 'by depleting flows in the Carson River and thereby reducing inflows to the Lahontan Reservoir to the detriment of senior water right holders in the Newlands Project who are entitled to divert Trucµee River water to maµe up for insufficient Carson River flows, which would impact Pyramid Laµe and its fishery.' 2 The State Engineer ruled against the Tribe. The Engineer noted that 'the Tribe is not a senior water-right holder on the Carson River and does not have any existing decreed right to Carson River surface water.' The Tribe, however, had relied in its challenge not on any right to Carson River water, but on the potential downstream impact of the allocations on the Tribe's decreed rights to the Trucµee River. Inter alia, the Engineer ruled that the Tribe's decreed water rights under Claims No. 1 and 2 would not be impacted by allocations of groundwater in the Dayton Valley. The Tribe appealed the Engineer's ruling to the federal district court. The Tribe contended there was federal court jurisdiction over an appeal of the Engineer's ruling because the district court had exclusive jurisdiction over the surface waters of the Carson River under the Alpine Decree. The district court held that it did not have subject matter jurisdiction over the Tribe's appeal. In light of our opinion in United States v. Orr Water Ditch Co., No. 07-17001, we vacate and remand the district court's decision in this case for further proceedings consistent with that decision. Consistent with our holding in Orr Water Ditch, subject matter jurisdiction exists over the Tribe's appeal from the State Engineer's Ruling 5823 only insofar as the allocation of Dayton Valley 3 Hydrographic Basin groundwater rights is plausibly alleged to affect adversely the Tribe's decreed water rights under the Orr Ditch Decree. VACATED and REMANDED. 4