Pyramid Lake Paiute v. Nevada State Engineers

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff,
and
PYRAMID LAKE PAIUTE TRIBE OF
INDIANS,
Petitioner-Appellant,
v. No. 03-16654
ORR WATER DITCH COMPANY,
Defendant,  D.C. Nos.
CV-73-00003-LDG
and A-3-LDG
CHURCHILL COUNTY; TRUCKEE-
CARSON IRRIGATION DISTRICT;
CITY OF FALLON; CITY OF FERNLEY;
TRUCKEE MEADOWS WATER
AUTHORITY; NEVADA STATE
ENGINEER,
Respondents-Appellees.


2331
2332 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
and
PYRAMID LAKE PAIUTE TRIBE OF
No. 03-16941
INDIANS,
Petitioner, D.C. No.
CV-73-00003-LDG
v.
ORDER
ORR WATER DITCH COMPANY,
Defendant-Appellee,  AMENDING
OPINION AND
and DENYING
CHURCHILL COUNTY; TRUCKEE- REHEARING AND
CARSON IRRIGATION DISTRICT; AMENDED
CITY OF FALLON; CITY OF FERNLEY; OPINION
TRUCKEE MEADOWS WATER
AUTHORITY; NEVADA STATE
ENGINEER,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding

Argued and Submitted
June 24, 2004—San Francisco, California
Submission Withdrawn July 13, 2004
Resubmitted December 7, 2004

Filed December 14, 2004
Amended March 1, 2005

Before: Mary M. Schroeder, Chief Judge,
Michael Daly Hawkins, and William A. Fletcher,
Circuit Judges.
PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2333
Opinion by Judge William A. Fletcher
 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2335

COUNSEL

Robert S. Pelcyger, Fredericks, Pelcyger & Hester, Louisville,
Colorado, for the petitioner-appellant.

Richard G. Campbell, Senn Palumbo Meulemans, Reno,
Nevada; Michael J. Van Zandt, McQuaid, Bedford & Van
Zandt, San Francisco, California; Michael F. Mackedon,
Mackedon & McCormick, Fallon, Nevada; Rebecca Ann Har-
old, Fernley, Nevada; Gordon H. DePaoli, Woodburn and
Wedge, Reno, Nevada; Michael L. Wolz, Office of Nevada
Attorney General, Carson City, Nevada, for the respondents-
appellees.

ORDER

This court’s opinion, filed December 14, 2004, slip op.
16855, is hereby amended as follows:

At slip. op. 16864, in the second paragraph of sub-
section C, change “We have consistently held that
2336 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
state law governs applications to change the use of
water rights under the Orr Ditch Decree.” to “We
have consistently applied state law to applications to
change the use of water rights under the Orr Ditch
Decree.” In the third sentence of the same paragraph,
change “In reaching this conclusion, we have been
guided by the policies underlying the 1902 Reclama-
tion Act, which the Supreme Court has construed to
require that “state water law . . . control in the appro-
priation and later distribution of the water.” to “In
doing so, we have been guided by the policies under-
lying the 1902 Reclamation Act, which the Supreme
Court has construed to require that “state water law
. . . control in the appropriation and later distribution
of the water.”

With the opinion as amended, the panel has voted to deny
the petition for rehearing.

The petition for rehearing, filed January 28, 2005, is
DENIED. No subsequent petitions for rehearing or rehearing
en banc may be filed.

OPINION

W. FLETCHER, Circuit Judge:

In this case, we consider whether a Nevada statute provid-
ing for an automatic stay of the State Engineer’s decisions
applies to federal proceedings under the Orr Ditch Decree.
Because we find that Nev. Rev. Stat. § 533.450 is an integral
part of Nevada water law rather than a generally applicable
rule of civil procedure, we conclude that it does.

I. Background

The underlying case arises from a 1944 federal court decree
quieting title to certain water rights in the Truckee River. The
 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2337
Truckee River originates in California, flows into Nevada,
and terminates in Pyramid Lake, the principal natural feature
of the Pyramid Lake Reservation. Acting under authority
granted to it by the Reclamation Act of 1902, 32 Stat. § 388,
the federal government established the Newlands Reclamation
Project to divert water for irrigation from the Truckee and
Carson Rivers. Because private landowners and the Indians of
the Pyramid Lake Indian Reservation possessed pre-existing
water rights in the rivers, in 1913 the United States sued in
federal district court to quiet title to all water rights in the
project area. More than thirty years later, the federal district
court in Nevada entered its final decree adjudicating water
rights in the Truckee Division of the project. United States v.
Orr Water Ditch Co., Equity No. A-3 (D. Nev. 1944). Known
as the Orr Ditch Decree, this decree allows parties to change
the “place, means, manner or purpose of use of the waters to
which [the party is] so entitled” as long as they do so “in the
manner provided by law.” Id.

Pursuant to this decree, the Pyramid Lake Paiute Tribe of
Indians and the United States, as trustee for the Tribe, sought
in 2001 to make temporary changes to two water rights,
Claim No. 1 and Claim No. 2 of the Orr Ditch Decree, in
order to allow water formerly used for irrigation of Indian
lands to flow into Pyramid Lake, where it would help pre-
serve the Tribe’s fishery. Following the procedures mandated
by the Orr Ditch decree, the Tribe and the United States
applied to the Nevada State Engineer for an initial adjudica-
tion. On December 6, 2002, the Engineer issued a ruling
granting the applications in part. Although the Engineer
allowed fewer acre-feet than the Tribe had sought, his ruling
was largely favorable to the Tribe and the United States.

In January 2003, the City of Fallon and the Truckee-Carson
Irrigation District appealed the State Engineer’s ruling to fed-
eral district court in Nevada. In their appeal, the City of Fal-
lon and the Irrigation District sought to invoke Nev. Rev. Stat.
§ 533.450(5), which allows a party to obtain an automatic stay
2338 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
of the State Engineer’s ruling on a change application upon
timely request and the posting of a bond.1 The United States
and the Tribe opposed the stay request. They argued that the
stay was a procedural matter that should be decided according
to the relevant Federal Rules of Civil Procedure — principally
Rule 65, which governs the availability of injunctions.2

Unlike Nev. Rev. Stat. § 533.450(5), Rule 65 cannot be
invoked automatically. Before issuing a preliminary injunc-
tion under Rule 65(a), the district court must give “notice to
the adverse party” and conduct a hearing. Subsection (d) of
Rule 65 further requires that a court order granting an injunc-
tion must “set forth the reasons for its issuance.” The United
States and the Tribe argued that the district court was required
to follow the more demanding procedures of Rule 65 before
reaching the decision to grant a stay.

The district court rejected this argument. Noting that “[t]his
court has previously ruled in the Orr Ditch litigation that ‘in
the manner provided by law’ means in accordance with
Nevada state procedure,” it held that Nev. Rev. Stat.
§ 533.450(5) governed the issuance of a stay of the State
Engineer’s ruling. Applying this statute, the district court
1
Nev. Rev. Stat. § 533.450(5) provides that “[a] bond shall not be
required except when a stay is desired, and the proceedings provided for
in this section are not a stay unless, within 5 days following the service
of notice thereof, a bond is filed in an amount to be fixed by the court,
with sureties satisfactory to such court, conditioned to perform the judg-
ment rendered in such proceedings.” In Turnipseed v. Truckee Carson
Irrigation District, Nos. 33945, 34134 (Nev. Sept. 13, 2000), the Nevada
Supreme Court held that this provision authorizes an automatic stay “con-
dition[ed] . . . on nothing more than a timely request and the posting of
a bond acceptable to the court.”
2
The United States and the Tribe initially suggested that Fed. R. Civ. P.
62(c), which provides for discretionary injunctions pending appeal, and
Fed. R. Civ. P. 62(d), which provides for an automatic stay in appeals of
money judgments, might also potentially be relevant. However, their argu-
ment on appeal focuses on Fed. R. Civ. P. 65. The precise federal Rule at
issue does not bear materially on the resolution of this case.
 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2339
issued the requested stay upon payment of two $1,000 bonds
by the City of Fallon and the Irrigation District.

The United States and the Tribe timely appealed. On March
9, 2004, while this appeal was before us, the district court
decided the merits of the underlying appeal from the State
Engineer’s ruling. The district court largely affirmed the
Engineer, sustaining the Engineer’s decision that the Tribe is
entitled to transfer the water rights under Claims No. 1 and 2
from irrigation to in-stream uses in furtherance of the Pyramid
Lake fishery. The effect of this ruling on the merits is to dis-
solve the stay issued by the district court on August 1, 2003.
The City of Fallon and the Irrigation District contend that the
district court’s decision renders the appeal moot.

The district court’s ruling that Nevada law, rather than the
Federal Rules of Civil Procedure, governs the motion for a
stay is reviewed de novo. Abogados v. AT&T, Inc., 223 F.3d
932, 934 (9th Cir. 2000). (“A district court’s decision con-
cerning the appropriate choice of law is reviewed de novo.”).

II. Discussion

A. Mootness

[1] As a preliminary matter, we must decide whether the
district court’s decision on the merits, which resulted in a dis-
solution of the stay, has mooted this appeal. The district
court’s decision puts an end to the parties’ immediate dispute,
but the controversy over the applicability of Nev. Rev. Stat.
§ 533.450(5) is “capable of repetition, yet evading review.” S.
Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S.
498, 515 (1911). “A dispute is capable of repetition if there
[is] a reasonable expectation that the same complaining party
would be subjected to the same action again; it is likely to
evade review if the challenged action was in its duration too
short to be fully litigated prior to its cessation or expiration.”
Unabom Trial v. U.S. Dist. Court, 183 F.3d 949, 950 (9th Cir.
2340 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
1999) (en banc) (alteration, internal quotation marks, and cita-
tions omitted).

All of the litigants in this case are repeat players who have
sought in the past, and will likely seek in the future, to change
water allocations under the Orr Ditch Decree. It is also likely
that, in any future proceedings, the losing party before the
Engineer will seek a stay of his ruling. This conclusion is sup-
ported by appellees’ statement in their stay request that the
district court “has on several prior occasions” applied Nev.
Rev. Stat. § 533.450 to similar motions for stays of rulings by
the State Engineer.

[2] By its nature, a stay is temporary. As is apparent from
this case — in which this court expedited the appeal — the
Nevada district court will frequently rule on the merits of an
appeal from a State Engineer’s ruling before this court has an
opportunity to consider the district court’s prior stay order. As
a result, we find that the “capable of repetition yet evading
review” exception to the mootness doctrine allows us to con-
sider the merits of this appeal.

B. Appealability of the District Court’s Order

[3] The Irrigation District and the City of Fallon next assert
that the district court’s stay order is not an appealable order.
Because the stay order was the functional equivalent of a pre-
liminary injunction, we reject this argument. The order
restrained the State Engineer from issuing the permits he had
authorized in his December 2002 ruling. Regardless of how
a district court chooses to title an order, this court has jurisdic-
tion to decide an appeal under 28 U.S.C. § 1292(a)(1) if the
“substantial effect” of the appealed order is that of an injunc-
tion. Tagupa v. East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th
Cir. 1981) (“In determining the appealability of an interlocu-
tory order under 28 U.S.C. § 1292(a)(1), we look to its sub-
stantial effect rather than its terminology.”) (internal quotation
 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2341
marks and citations omitted). Jurisdiction is therefore proper
over this appeal.

C. Applicability of Nevada Law

Finally, we consider the central issue: whether the district
court properly applied Nev. Rev. Stat. § 533.450(5) rather
than Rule 65 in deciding whether to grant appellees’ stay
motion.

[4] We have consistently applied state law to applications
to change the use of water rights under the Orr Ditch Decree.
United States v. Orr Water Ditch Co., 914 F.2d 1302, 1307
(9th Cir. 1990). In doing so, we have been guided by the poli-
cies underlying the 1902 Reclamation Act, which the
Supreme Court has construed to require that “state water law
. . . control in the appropriation and later distribution of the
water.” United States v. Alpine Land & Reservoir Co., 878
F.2d 1217, 1223 (9th Cir. 1989) (quoting California v. United
States, 438 U.S. 645, 664 (1978)). In addition, we have found
that the provision of the Orr Ditch Decree mandating that
changes to water use be made “in the manner provided by
law” requires us to apply “[n]ot only state water law sub-
stance . . . but procedure as well.” United States v. Orr Water
Ditch Co., 914 F.2d 1302, 1307 (9th Cir. 1990).

[5] Based on this understanding of the Orr Ditch Decree,
we have previously held that other Nevada procedures for
adjudicating water disputes, including two subsections of the
same statute to which Nev. Rev. Stat. § 533.450(5) belongs,
apply to Orr Ditch proceedings. We have followed the appeal
procedures established by Nev. Rev. Stat. § 533.450(1),
which require that an appeal of a State Engineer’s decision be
initiated in the court that entered the decree. United States v.
Alpine Land & Reservoir Co., 174 F.3d 1007, 1011 (9th Cir.
1999) (noting that “we have interpreted Nevada law, which
provides for jurisdiction of appeals from decisions of the State
Engineer ‘in the court that entered the decree,’ as providing
2342 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
for federal court review under the Orr Ditch Decree”). We
have also applied Nev. Rev. Stat. § 533.450(9), which pro-
vides that the state engineer’s decisions “shall be prima facie
correct, and the burden of proof shall be upon the party
attacking the same.” See United States v. Alpine Land & Res-
ervoir Co., 341 F.3d 1172, 1180 (9th Cir. 2003).

[6] We do not believe that the Orr Ditch Decree provides
a basis for treating Nev. Rev. Stat. § 533.450(5) differently
from these other procedural provisions. Like the other subsec-
tions of Nev. Rev. Stat. § 533.450 that we have applied to fed-
eral proceedings, the stay procedure provided by Nev. Rev.
Stat. § 533.450(5) is part of a unified scheme to adjudicate
water issues in a fair and orderly way. It has no application
outside of water law cases. Absent a procedure such as Nev.
Rev. Stat. § 533.450(5), it would frequently be impossible to
remedy an error by the State Engineer because, by the time
the appeal was decided, the water at issue would already have
been used. We are mindful that Nev. Rev. Stat. § 533.450(5),
like the other provisions of the Nevada water code, is
designed to address such practical realities. See Application of
Filippini, 202 P.2d 535, 540 (1949) (finding it “settled in
[Nevada] that the water law and all proceedings thereunder
are special in character, and the provisions of such law not
only lay down the method of procedure but strictly limit[ ] it
to that provided”).

[7] We find no conflict between Nev. Rev. Stat.
§ 533.450(5) and the Federal Rules of Civil Procedure. The
federal Rules “govern the procedure in the United States dis-
trict courts in all suits of a civil nature.” Fed. R. Civ. P. 1.
Thus, “[w]hen a situation is covered by one of the Federal
Rules, . . . the [district court must] apply the Federal Rule, and
can refuse to do so only if . . . the Rule in question trans-
gresses [ ] the terms of the [Rules] Enabling Act [or the Con-
stitution].” Hanna v. Plumer, 380 U.S. 460, 471 (1965). In
this case, however, the specific question of stays of the State
Engineer’s rulings is not “covered by one of the Federal
 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2343
Rules.” Rather, it is covered by Nev. Rev. Stat. § 533.450(5),
an inseparable part of Nevada water law, which is made appli-
cable to the rights at issue here by the express terms of the
decree that established those rights.

Were we being asked to apply a generally applicable rule
of Nevada civil procedure — such as Nev. Rev. Stat.
§ 33.010, which provides for preliminary injunctions in civil
proceedings in state court — our analysis would be considera-
bly different. Nev. Rev. Stat. § 533.450(5), however, is not a
part of the Nevada Rules of Civil Procedure. Rather, it applies
only in the narrow context of an appeal from the State Engi-
neer’s decision. It is part of the Nevada water code, which the
Orr Ditch Decree and our case law direct us to apply in its
entirety to proceedings under the Decree.

[8] We hold that the district court was required to apply
Nev. Rev. Stat. § 533.450(5) in order to resolve this case, as
the Orr Ditch Decree mandates, in the “manner provided by
law.” We therefore conclude that the district court was correct
to grant the appellees’ stay motion upon the posting of a suffi-
cient bond.

AFFIRMED