concurring in part and dissenting in part:
I concur in all of the majority opinion except that portion which permits a partial reopening of the Orr Ditch litigation to consider the claim of the Tribe against the Truckee-Carson Irrigation District. My partial dissent is with respect and regret, for the fate that has befallen the once beautiful Pyramid Lake is indeed sorrowful.
I dissent because the majority opinion creates an exception to the principles of res judicata applicable to general water adjudications, and the effect of today’s ruling may have disruptive repercussions beyond the shores of Pyramid Lake.
The majority opinion, correctly in my view, rejects the broad contention of the government that its own, belatedly perceived, conflict of interest in representing both the Irrigation District and the Tribe requires the Orr Ditch decree to be reopened completely. In the bygone era in which irrigation and reclamation ranked supreme, the conflicting relationship between those interests and possible other reserved Indian water rights was not clearly perceived. The majority properly recognizes, as the district court found, that there could have been no public perception of any impropriety in the government’s conduct of this litigation which would preclude reliance upon the decree. See Restatement (Second) of Judgments § 86 (Tent. Draft No. 2, 1975).
The majority’s limited reopening is more narrowly perched upon the principle of “adverseness under the pleadings,” a concept most commonly applied to co-parties in tort litigation. The majority applies that concept here because the claims of the Tribe and TCID were both set forth in the government’s complaint. The majority concludes that those claimants are bound only by matters which were actually litigated, and not as to any claims which could or should have been determined in that litigation.
This action, however, as the district court found and the majority accepts, was intended by all concerned to be a “general all inclusive water adjudication suit which sought to adjudicate all rights and claims in and to waters of the Truckee River and its tributaries ... to the end that its decree would determine the relative rights of the parties thereto.” The government filed the action in order to determine all prior rights to the water and to establish the amount of water available to TCID. In such litigation, the fact that claimants may be denominated plaintiffs or defendants has no effect on the application of res judicata. All are adverse to each other.
This principle has been repeatedly observed by courts of the western United States in dealing with similar adjudications. For example, the Idaho Supreme Court in Morgan v. Udy, 58 Idaho 670, 79 P.2d 295 (1938), was faced with the contention that parties to an adjudication had not been adversaries and thus principles of collateral *1314estoppel as opposed to res judicata applied. The court quoted from Frost v. Alturas Water Co., 11 Idaho 294, 301, 81 P. 996, 998:
‘... in the settlement of cases of this character every user of water on the stream and all of its tributaries in litigation are interested in the final award to each claimant. * * * Every claimant of the water of either stream * * * is interested in a final adjudication of all the claimants of all the waters that flow to the claimants at the lower end of the stream after its junction. In other words, in my view of the question presented by the demurrer, it matters but little who are plaintiffs and who are defendants in the settlement of cases of this character; the real issue being who is first in right to the use of the waters in dispute.’ (Italics ours.)
58 Idaho at 681, 79 P.2d at 299. In an equitable quiet title action very similar to the Orr Ditch litigation, the Nevada Supreme Court decided whether non-appealing defendants were “adverse” parties entitled to be served with a notice of appeal. Pacific Live Stock Co. v. Ellison Ranching Co., 52 Nev. 279, 286 P. 120 (1930). The court concluded that they were “adverse,” stating:
In a suit to quiet title to water rights, such as this, the main purpose is to determine the respective rights of the parties to the use of the water. A decree which leaves the controversy between the parties unsettled, unadjudicated, undetermined, and subject to future litigation, defeats the very purpose for which the action is brought. 3 Kinney, Water Rights (2d ed.) § 1557.
Id. at 296, 286 P. at 123.
The majority decision here, of course, rests not only upon the form of the pleadings but upon the fact that the government, at least formally, was representing both the Irrigation District water users and the Tribe. This, however, as we all agree, was not generally understood to have involved any impropriety during the course of the Orr Ditch litigation. The users of the Truckee-Carson Irrigation District waters, like the Orr Ditch defendants, have relied on the finality of the Orr Ditch decree for nearly two generations. The majority does not suggest, nor did the district court find, that the TCID users were any more aware of improprieties in the government’s conduct than the other users who were parties to the action.
As the majority points out, the hardship of today’s ruling on TCID may be eased by the availability of other remedies. In such circumstances, today’s ruling may well be viewed as a fair and equitable redress for the loss of fishery rights and the damage done to Pyramid Lake. However, the applicability of today’s ruling to other water adjudications involving Indian interests was not briefed in this case and is not known to this panel. I understand today’s ruling to apply only to a situation in which the government, in the complaint, asserted claims on behalf of an Indian tribe as well as other water users who were not parties to the litigation. No claim has been made that this situation is unique.1
The underlying conflict between pursuit of reclamation interests and reserved Indian rights has been the subject of calls for congressional action. E. g., Chambers, Discharge of the Federal Trust Responsibility to Enforce Legal Claims of Indian Tribes: Case Studies of Bureaucratic Conflict of Interest, 91 Cong., 2d Sess. (Comm. Print 1970) Study of Administrative Conflicts of Interest in the Protection of Indian Natural Resources, Subcomm. on Admin. Prac. and Procedure of the Senate Comm, on the Ju*1315diciary; Veeder, Federal Encroachment on Indian Water Rights and the Impairment of Reservation Development, 91 Cong., 1st Sess. (Comm. Print 1969) Toward Economic Development for Native American Communities, Subcomm. on Economy in Government of the Joint Economic Comm. In my view that approach is preferable to one which erodes long standing principles of finality in water adjudications.
. Many water adjudications undoubtedly lie outside the scope of today’s ruling. For example, the Kent decree, Hurley v. Abbott, No. 4564 Decree, Dist.Ct.3rd Judicial Dist., Maricopa Co. (1910) underlies the water distribution in Central Arizona. That decree has been cited along with the Orr Ditch decree as an example of conflict of interest. Federal Protection of Indian Resources, Hearings Before the Sub-comm. on Elections of the Senate Judiciary Comm., 92nd Cong., 1st Sess. (1971) (statement of W. H. Veeder). It is not within the scope of today’s decision, however, since the government there made all land owners within the district parties defendant.