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The memorandum disposition filed April 7, 2010 is withdrawn.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.
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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NOT FOR PUBLICATION JUL 01 2010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.'
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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
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Hydrographic Basin groundwater rights is plausibly alleged to affect adversely the
Tribe's decreed water rights under the Orr Ditch Decree.
VACATED and REMANDED.
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