FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff,
and
PYRAMID LAKE PAIUTE TRIBE OF
INDIANS,
No. 04-16032
Petitioner-Appellant,
v. D.C. Nos.
CV-73-00003-LDG
TRUCKEE-CARSON IRRIGATION EQUITY A-3
DISTRICT; CITY OF FALLON; CITY OF
FERNLEY,
Defendants-Appellees,
NEVADA STATE ENGINEERS,
Respondent-Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
and
PYRAMID LAKE PAIUTE TRIBE OF No. 04-16033
INDIANS, D.C. Nos.
Petitioner, CV-73-00003-LDG
v. EQUITY A-3
CITY OF FERNLEY, OPINION
Defendant-Appellee,
NEVADA STATE ENGINEERS,
Respondent-Appellee.
15467
15468 UNITED STATES v. NEVADA STATE ENGINEERS
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted
July 7, 2005—San Francisco, California
Filed November 21, 2005
Before: Mary M. Schroeder, Chief Judge,
Michael Daly Hawkins and William A. Fletcher,
Circuit Judges.
Opinion by Judge William A. Fletcher
15470 UNITED STATES v. NEVADA STATE ENGINEERS
COUNSEL
Katherine J. Barton, Fred R. Disheroon, James B. Cooney,
U.S. Department of Justice, Washington, D.C.; Stephen M.
MacFarlane, U.S. Department of Justice, Sacramento, Califor-
nia, for plaintiff-appellant United States of America.
Robert S. Pelcyger, Fredericks Pelcyger Hester & White,
Louisville, Colorado, for petitioner-appellant Pyramid Lake
Paiute Tribe of Indians.
Michael J. Van Zandt, McQuaid Bedford & Van Zandt, San
Francisco, California, for defendant-appellee Truckee-Carson
Irrigation District.
Steve King, Mackedon & McCormick, Fallon, Nevada, for
defendant-appellee City of Fallon.
Paul G. Taggart, King & Taggart, Carson City, Nevada, for
defendant-appellee City of Fernley.
Michael L. Wolz, Office of the Nevada Attorney General,
Carson City, Nevada, for respondent-appellee Nevada State
Engineers.
UNITED STATES v. NEVADA STATE ENGINEERS 15471
OPINION
W. FLETCHER, Circuit Judge:
This appeal arises from efforts by the Pyramid Lake Paiute
Tribe of Indians to apply some of its Truckee River water
rights, as established under a 1944 federal court decree, to in-
stream use rather than irrigation. The district court held that
the Tribe was entitled to change the use of the water rights,
but was not entitled to apply the transportation loss portion of
the rights. We affirm.
I. Background
The Truckee River originates in California, flows into
Nevada, and terminates in Pyramid Lake. The lake is the prin-
cipal 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 initiated 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 held pre-
existing water rights, the United States brought suit in federal
district court in 1913 to quiet title to all water rights in the
project area. More than thirty years later, the federal district
court in Nevada entered a 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, it allows owners of water rights to
change the “place, means, manner or purpose of use of the
waters to which [the owner is] so entitled,” as long as they do
so “in the manner provided by law.”
The Pyramid Lake Paiute Tribe of Indians and the United
States, as trustee for the Tribe, sought in 2001 to make tempo-
rary changes to two water rights provided by the decree,
Claim Nos. 1 and 2. They sought to change the use of water
formerly used for irrigation of Indian lands so that it would
15472 UNITED STATES v. NEVADA STATE ENGINEERS
flow unimpeded into Pyramid Lake, where it would help pre-
serve the Tribe’s fishery. Following the procedures specified
in 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. The Engineer allowed the
Tribe to transfer the majority of the acre-feet it had requested
to fishery use (approximately 85 percent of its request under
Claim No. 1, and approximately 73 percent of its request
under Claim No. 2), but did not allow the Tribe to transfer the
remaining portion of the claims. These remaining portions
were transportation losses which, in the view of the Engineer,
could not be transferred to a use that did not entail such
losses.
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 their appeal, the City of Fallon and the
Irrigation District invoked Nev. Rev. Stat. § 533.450(5),
which allows a party to obtain an automatic stay of the State
Engineer’s ruling on a change application upon timely request
and the posting of a bond. The district court issued the
requested stay. The United States and the Tribe appealed,
objecting that the Federal Rules of Civil Procedure, rather
than the Nevada water law statute, should apply. We affirmed,
holding that the stay procedure was an inseparable part of the
Nevada water code and was thus applicable to proceedings
under the decree. United States v. Orr Water Ditch Co., 391
F.3d 1077 (9th Cir. 2004), amended by 400 F.3d 1117 (9th
Cir. 2005).
On March 9, 2004, the district court decided the merits of
the underlying appeal from the State Engineer’s ruling. See
United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245
(D. Nev. 2004). The district court largely affirmed the Engi-
neer, upholding his decision that the Tribe is entitled to trans-
fer its water rights under Claim Nos. 1 and 2 from irrigation
to in-stream use in furtherance of its fishery in Pyramid Lake.
UNITED STATES v. NEVADA STATE ENGINEERS 15473
Parties on both sides appealed. This court dismissed the
appeal of the Irrigation District pursuant to a stipulation of the
parties. All that remains is the appeal by the Tribe and the
United States.
II. Mootness
[1] The period encompassed by the temporary transfer in
this case ended in November 2004, but the question at issue
in this appeal will almost certainly arise again. As we noted
in Orr Water Ditch, 391 F.3d at 1080, the United States and
the Tribe are “repeat players” who have stated that they intend
to file virtually identical temporary transfer applications in the
future. Temporary transfer applications may involve changes
in water use that are of brief duration such that the period will
inevitably expire before any appeal can be heard. Thus, for
reasons similar to those stated in our previous opinion, this
case falls into the exception to mootness for cases “ ‘capable
of repetition, yet evading review.’ ” See id. at 1080-81 (quot-
ing S. Pac. Terminal Co. v. Interstate Commerce Comm’n,
219 U.S. 498, 515 (1911)).
III. Standard of Review
In proceedings under the Orr Ditch Decree, we review the
State Engineer’s factual determinations to see if they are
“supported by substantial evidence.” United States v. Alpine
Land & Reservoir Co., 291 F.3d 1062, 1071 (9th Cir. 2001).
We uphold the State Engineer’s legal conclusions as long as
they are not contrary to law. Id. Although we consider the
State Engineer’s interpretations of Nevada statutes “persua-
sive,” they are not controlling. United States v. Orr Water
Ditch Co., 256 F.3d 935, 945 (9th Cir. 2001). We review de
novo the district court’s conclusions of law. Id.
IV. Discussion
[2] The only question squarely presented in this appeal is
whether the Tribe may transfer the transportation-loss compo-
15474 UNITED STATES v. NEVADA STATE ENGINEERS
nent of its decreed water rights under Claim Nos. 1 and 2.
Under the Orr Ditch Decree, the Tribe is entitled under Claim
No. 1 to a maximum of 14,742 acre-feet of water per year to
irrigate 3,130 acres of Reservation bottom lands. It is entitled
under Claim No. 2 to a maximum of “one-fortieth of one
cubic foot per second.” This equals a maximum of 15,344.55
acre-feet of water per year to irrigate 2,745 acres of Reserva-
tion bench lands. Orr Water Ditch, 309 F. Supp. 2d at 1247.
These maximum figures include an estimated amount of water
that will be lost in the process of transporting the water from
the river to the irrigated land.
The Decree specifically provides as to Claim No. 1 that its
allocations are based on “an estimated transportation loss of
fifteen percent.” It further provides that the maximum amount
of “water . . . diverted shall not exceed 4.71 acre feet per year
for the aggregate number of acres . . . irrigated,” while “the
amount of water applied to the land shall not exceed four acre
feet per year for the aggregate number of acres . . . irrigated.”
(Emphasis added.) The Decree provides as to Claim No. 2
that the maximum amount to be “diverted” from the river is
5.59 acre-feet per acre per year, and the maximum amount to
be “applied to the lands,” after taking into account transporta-
tion loss, is 4.1 acre-feet per acre per year.
[3] The Decree’s “general provisions” similarly state that
the maximum total allocation of water, described above, is
based upon an estimate of transportation loss. It explains that
the allocation may be modified depending on actual transpor-
tation loss:
If it shall appear at any time in regard to the actual
use and need of water for irrigation that the amount
hereinbefore estimated and allowed to be diverted
from the river or stream into any ditch or canal is not
sufficient after transportation loss to deliver to the
land the flow allowed by this decree for application
to the land, the allowance or flow as fixed by this
UNITED STATES v. NEVADA STATE ENGINEERS 15475
decree for application to the land shall control, and
there may, and hereby is allowed to be diverted from
the stream a larger amount than the amount herein-
before estimated for diversion from the stream, to
the extent necessary to supply to the land, after
actual transportation loss, the flow of water allowed
by this decree for application to the land. Whether
more or less than the amount hereinbefore estimated
for diversion from the stream by any ditch, the quan-
tity of water diverted for irrigation shall in every
case be only such an amount as will supply to the
land, after actual transportation loss, the amount of
water allowed by this decree for application to the
land and the quantity needed for irrigation thereof.
Thus, the constant maximum amount established by the
Decree is the “amount of water allocated by this decree for
application to the land.” In addition to this amount, the Decree
accounts for transportation loss by allowing an additional
“amount . . . estimated for diversion,” such that the water
applied to the land remains constant after taking into account
transportation loss. This additional amount may be adjusted
up or down based on actual conditions.
The estimates for transportation loss in the Orr Ditch
Decree are based on the assumption that the water will be
used for irrigation. Water rights holders under the Decree are
not, however, restricted to that use. Instead, they are permitted
to change the use of their water rights, subject to the require-
ment that the change is accomplished “without injury to the
rights of other persons whose rights are fixed by this decree.”1
Under the Decree, the baseline for the determination of injury
1
The district court held that irrigation and in-stream uses were both “pri-
mary purposes.” It did not reach the question of whether the Tribe was
entitled to transfer its use from irrigation not merely to another “primary
purpose” but to “any lawful purpose.” 309 F. Supp. 2d at 1253. We also
do not reach that question.
15476 UNITED STATES v. NEVADA STATE ENGINEERS
to junior appropriators is the conditions that existed at the
time of their initial appropriation. Notwithstanding this right,
however, the Tribe is entitled to use the total amount to which
it is entitled under the Decree, regardless of whether it has
historically put the water to beneficial use. See United States
v. Adair, 723 F.2d 1394, 1406 n.11 (9th Cir. 1983) (declaring
that “reserved water rights are established by reference to the
purpose of the reservation rather than any actual beneficial
use of water”).
In this case, the Tribe applied to transfer temporarily the
place and manner of use of 9,941 acre feet per year of Claim
No. 1 and the entirety of Claim No. 2 (15,344.55 acre feet per
year) from irrigation to in-stream fishery use. The State Engi-
neer allowed the transfer of 8,420 acre-feet for Claim No. 1,
and 11,254.5 acre-feet for Claim No. 2. These figures repre-
sent the amount of water the decree allows for actual applica-
tion to the land. They exclude the amount allocated to
transportation loss.
Both the State Engineer and the district court refer to the
portion of the water right actually delivered to the land as the
“water duty.” Compare United States v. Alpine Land & Reser-
voir Co., 697 F.2d 851, 854 (9th Cir. 1983). In holding that
the Tribe is entitled to transfer only the “water duty” compo-
nent of its Orr Ditch rights to an in-stream fishery use, the
State Engineer did not resolve the issue of whether the Tribe’s
water rights under the Orr Ditch Decree included the water
allocated to transportation loss. Instead, the Engineer relied on
the Decree’s “no injury” provision, finding that there would
be a “potential of impact to storage and consequently injury
to other water right holders”2 if the transportation loss amount
2
Appellants dispute this finding. Appellants acknowledge that, in gen-
eral, the “no injury” rule would preclude the transfer of transportation
losses to other uses because it would reduce the return flows to the
Truckee River. However, in this case, they argue, there are no downstream
users from the place of diversion of the Tribe’s water right who would
receive return flows from the Tribe’s use of water for irrigation. Because
we do not decide the case on this ground, we need not resolve this issue.
UNITED STATES v. NEVADA STATE ENGINEERS 15477
were to be included, and that, because the transfer application
was for one year only, the Tribe would not be harmed by tem-
porarily denying it the transportation loss amount. The State
Engineer noted that this ruling was “not prejudicial to consid-
eration of the issue on future applications.”
The district court affirmed the State Engineer’s ruling on a
different ground. The court noted that the Decree’s General
Provisions provide that the amount allocated to transportation
loss is only an “estimated” one, which can be increased or
decreased as conditions demand. The court thus reasoned that
under the Decree the Tribe is entitled not to the total amount
of water it is entitled to divert, but only to the maximum
amount of water it is permitted to apply to the land. Orr
Water Ditch, 309 F. Supp. 2d at 1256.
Appellants argue that the Tribe is entitled to the transporta-
tion loss water based on the language in Claim No. 1 provid-
ing that, for irrigation of the Pyramid Lake reservation, the
United States is “entitled and allowed to divert . . . an amount
not exceeding 14,742 acre feet of water in any calendar year.”
They also base their argument on similar language in Claim
No. 2 providing that the United States “is hereby and will be
allowed to divert water . . . to the amount of one-fortieth of
one cubic foot per second.” This language, they argue, creates
an unqualified entitlement to divert water up to the overall
maximum. As discussed above, however, this entitlement is
modified by the requirement that the amount applied to the
land not exceed four acre-feet per acre for Claim No. 1 and
4.1 acre-feet per acre for Claim No. 2.
[4] We disagree with Appellants (and agree with the district
court). The specific provisions of Claim Nos. 1 and 2 set forth
maximums both for water that may be diverted and for water
that may be applied to the land. The General Provisions cited
above further clarify that the maximum diversion allowances
are merely “estimated,” and that if they are either overly gen-
erous or insufficient in light of actual transportation losses,
“the allowance or flow as fixed by this decree for application
to the land shall control.” Thus, under the Decree, if the Tribe
15478 UNITED STATES v. NEVADA STATE ENGINEERS
incurs a smaller transportation loss than the decree’s estimates
allow, the Tribe does not gain the right to apply the unused
portion of the transportation loss to the land. Conversely, if
transportation losses are greater than the Decree’s estimates,
the Tribe is not required to reduce the amount of water it
applies to the land; instead, it may increase the amount of
water it diverts. That is, the amount of water to which the
Tribe is entitled for transportation loss fluctuates depending
on real-world conditions, while the amount of water the Tribe
may use to apply to the land remains constant.
[5] The Tribe’s transportation loss right is thus inseparable
from the actual conditions of irrigation. In consequence, if we
were to agree with the Tribe that it is entitled to transfer to in-
stream use the water allocated to transportation loss for irriga-
tion, we would have to direct the State Engineer to make a
year-by-year assessment of how much water, under current
weather and soil conditions, would actually be lost if the
Tribe used its water right to irrigate its lands rather than to
support its fishery. Such a rule would be difficult to adminis-
ter and would create considerable uncertainty. Moreover,
because such a rule would require the State Engineer to apply
beneficial use principles in estimating the amount of water
that would reasonably be lost from year to year, it would also
be in tension with our general approach to the Tribe’s water
rights under the Decree, under which we do not subject the
Tribe’s rights to any beneficial use requirement. We think it
unlikely that such a result is contemplated by the Orr Ditch
Decree.
In part because the transportation loss amount changes
from year to year, the Water Master responsible for adminis-
tering the Decree has taken the position that the transportation
loss component is not transferrable. Before the State Engi-
neer, the Water Master testified that, in his judgment, the
water available to the Tribe for transfer was “the duty as allo-
cated, the water times the number of acres, so it would be the
amount of water that’s actually decreed for use and I do not
UNITED STATES v. NEVADA STATE ENGINEERS 15479
believe that the loss in the various canals would be subject to
transfer.” The Water Master based this opinion on the vari-
ability of the transportation loss “from ditch to ditch based on
the length of the ditch, et cetera,” and his understanding that
in the past “the State Engineer . . . when they’ve made trans-
fers has [not] allowed for the loss.” The Water Master thus
also construed the Decree as limiting the Tribe’s entitlement
to the amount of water decreed for application to the land,
supplemented by transportation losses only to the degree that
such losses are actually incurred.
[6] This understanding is also supported by explicit provi-
sions in the Alpine Land Decree, an adjudication of water
rights in the Carson River portion of the Newlands Project.
See United States v. Alpine Land & Reservoir Co., 503 F.
Supp. 877 (D. Nev. 1980), modified by 697 F.2d 851 (9th Cir.
1983). Because the Alpine Land and the Orr Ditch decrees
concern the same reclamation project, we have often used
interpretations of one to construe the other. See, e.g., Orr
Water Ditch, 391 F.3d at 1081; United States v. Alpine Land
& Reservoir Co., 341 F.3d 1172, 1180 (9th Cir. 2002). We
find it significant that the Administrative Provisions of the
Alpine Land Decree explicitly exclude transportation loss
amounts from the water right that may be transferred, provid-
ing that “[c]hange of manner of use applications from use for
irrigation to any other use and changes in place of use appli-
cations shall be allowed only for the net consumptive use of
the water right as determined by this decree.” (Emphasis
added.)
[7] At oral argument, Appellants contended that the
absence of such an explicit provision in the Orr Ditch Decree
could be construed to suggest that change applications under
that Decree are not similarly limited to consumptive use.
However, because the Orr Ditch Decree clearly limits the
water right to the amount allocated for consumptive use plus
actual transportation loss, Appellants’ interpretation is
implausible. Instead, we think it more likely that the Alpine
15480 UNITED STATES v. NEVADA STATE ENGINEERS
Land Decree simply makes explicit what the Orr Ditch
Decree assumes — that the transportation loss component of
the right becomes irrelevant when water is transferred to a use
that does not involve transportation loss. We note that a
Supreme Court decree adjudicating water rights in western
states has also taken this approach. See Arizona v. California,
439 U.S. 419, 422 (1979) (decree establishing priority of use
of Colorado River water providing that if water was used for
non-consumptive purposes, the amount used could not “ex-
ceed the consumptive use that would have resulted” if the
water had been used for irrigation). By contrast, Appellants
have not pointed to any cases or decrees clearly allowing
transfer of transportation loss allocations to uses that do not
incur any actual transportation loss.
Appellants’ final argument is that the rules for adjusting
transportation loss in the General Provisions of the Decree are
intended only to restate the “no injury” rule as it applies to
junior appropriators, whose rights are limited by the amount
of water that is put to beneficial use. A junior appropriator
who wishes to transfer an irrigation right may only transfer
the portion of her right that, historically, she has beneficially
used, including only the amount actually incurred in transpor-
tation loss. If she uses less than the total granted to her under
the Decree, she cannot increase her use to the total without
being found to have injured other users. Appellants argue that
the Tribe, by contrast, is not a junior appropriator and is not
subject to the beneficial use requirement; therefore, this por-
tion of the Decree does not apply to it.
The terms of the General Provisions contain none of the
limitations Appellants seek to read into them. The transporta-
tion loss provision is not limited to junior appropriators.
Instead, the provision states that “in every case” the maximum
quantity of water to be used is limited to “the amount of water
allowed by this decree for application to the land.” (Emphasis
added). It is true, as Appellants argue, that this part of the
Decree speaks in terms of irrigation use and does not specifi-
UNITED STATES v. NEVADA STATE ENGINEERS 15481
cally provide that the same standards will apply to non-
irrigation use. But the General Provisions must be read
together with the language of Claim Nos. 1 and 2, which limit
the amount of water the Tribe may apply to the land regard-
less of the amount of transportation loss. There is nothing in
the Decree to suggest that the Tribe’s water rights are greater
when water is used for a purpose other than irrigation.
This case does not present the question of whether, if a
non-irrigation use results in losses analogous to transportation
losses for irrigation, the Tribe should be permitted to divert
additional water to account for such losses. The record does
not indicate whether an in-stream use such as fishery would
result in any losses at all. The Water Master did not rule out
the possibility that in-stream use might result in some loss,
although he did note that the amount of loss would be “diffi-
cult to determine.” The district court found based on the
record before it that “as the transfer applications establish the
Tribe will be applying the water to the proposed use starting
at the point of diversion, no actual transportation losses can
occur.” Orr Water Ditch, 309 F. Supp. 2d at 1257. However,
if the Tribe can demonstrate in future proceedings that such
losses occur for in-stream fishery use, it should be permitted
to argue that it is entitled to divert additional water such that
the amount actually applied to in-stream fishery use is the
same as the amount of water the Tribe is permitted to apply
to irrigated acreage pursuant to the Decree.
Conclusion
[8] We hold that the district court correctly concluded,
under the terms of the Orr Ditch Decree, that if a new use
entails no transportation loss, the water allocated to transpor-
tation loss for irrigation use may not be transferred to that
new use. We do not decide other questions raised by Appel-
lants.
AFFIRMED.