United States v. Walker River Irrigation Dist.

986 F.3d 1197

UNITED STATES of America, Plaintiff,

Walker River Paiute Tribe, Intervenor-Plaintiff,

and

Walker Lake Working Group, Defendant-Appellant,

Mineral County, Intervenor-Plaintiff-Appellant,

v.WALKER RIVER IRRIGATION DISTRICT ; Nevada Department of Wildlife; Fenili Family Trust, c/o Peter Fenili and Veronica Fenili, Trustees; Six N Ranch, Inc., c/o Richard and Cynthia Nuti; Michael Nuti; Nancy Nuti; Ralph E. Nuti; Mary E. Nuti; Lawrence M. Nuti; Leslie Nuti; Mica Farms, LLC, c/o Mike Faretto; John and Lura Weaver Family Trust, c/o Lura Weaver, Trustee; Smith Valley Garage, Inc., c/o Dan Smith and Shawna Smith; Donald Giorgi; Lorie McMahon; Merle McMahon; Centennial Livestock; Lyon County; Annett's Mono Village ; F.I.M. Corporation; R.N. Fulstone Company ; James T. Fousekis, Trustee; Chris H. Gansberg, Jr.; Faye E. Gansberg; Todd Gansberg; Hunewill Land & Livestock Co., Inc.; David Sceirine ; Pamela Haas; Virginia Lake Mutual Water Company; Mono County, County Counsel, Defendants-Appellees.

No. 15-16342

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 30, 2017

Submission Withdrawn May 2, 2018

Resubmitted January 21, 2021 Pasadena, California

Filed January 28, 2021

Simeon M. Herskovits (argued) and Iris Thornton, Advocates for Community & Environment, El Prado, New Mexico; and Sean A. Rowe, Mineral County District Attorney, Hawthorne, Nevada; for Plaintiff-Intervenor-Appellant Mineral County, Nevada, and Defendant-Appellant Walker Lake Working Group.

Gordon H. DePaoli (argued) and Dale E. Ferguson, Woodburn and Wedge, Reno, Nevada, for Defendant-Appellee Walker River Irrigation District.

Roderick E. Walston (argued), and Steven G. Martin, Best Best & Krieger LLP, Walnut Creek, California; Stephen B. Rye, District Attorney, Lyon County, Yerington, Nevada; Jerry M. Snyder, Reno, Nevada; Therese A. Ure, Schroeder Law Offices P.C., Reno, Nevada; Stacey Simon, County Counsel; Stephen M. Kerins, Deputy County Counsel; Jason Canger, Assistant County Counsel; Office of the County Counsel, County of Mono, Mammoth Lakes, California; for Defendants-Appellees Lyon County, Centennial Livestock, Mono County, and the Schroeder Group.

Bryan L. Stockton (argued), Senior Deputy Attorney General; Tori N. Sundheim, Deputy Attorney General; Aaron D. Ford, Attorney General; Attorney General's Office, Carson City, Nevada; for Defendant-Appellee Nevada Department of Wildlife.

Robert W. Byrne, Senior Assistant Attorney General; Randy L. Barrow, Supervising Deputy Attorney General; Deborah Barnes and Tara L. Mueller, Deputy Attorneys General; Attorney General's Office, Oakland, California; for Amicus Curiae State of California.

John Echeverria, Vermont Law School, South Royalton, Vermont, for Amici Curiae Natural Resources Defense Council and Sierra Club.

David R. Owen, Professor of Law, UC Hastings College of Law, San Francisco, California; Richard M. Frank, Professor of Environmental Practice, UC Davis School of Law, Davis, California; for Amici Curiae Law Professors.

Wes Williams, Law Offices of Wes Williams Jr. P.C., Schurz, Nevada, for Amicus Curiae Walker River Paiute Tribe.

Before: A. Wallace Tashima, Susan P. Graber,^** and Jay S. Bybee, Circuit Judges.

TASHIMA, Circuit Judge:

In 1936, the United States District Court for the District of Nevada entered the Walker River Decree ("Decree"), adjudicating and settling water rights within the Walker River Basin under the doctrine of prior appropriation. In the ensuing decades, these water allocations have adversely affected Walker Lake, the terminus of the Basin's water flows. The lake has lost more than half of its surface area and volume, and the lake's once-vibrant fishing and recreational activities—the lifeblood of Mineral County's economy and a significant source of County revenues—have been threatened. To address these effects, Mineral County (the "County") intervened in longstanding litigation over the Basin's waters, alleging that "[t]he public interest and maintenance of the public trust require[s] that the flows be allowed to reach Walker Lake that will sustain minimum levels for the naturally occurring fish population and provide for the preservation of Walker Lake for the citizens and residents of the County for recreational values, preservation of wildlife, and maintenance of the economy of Mineral County."

After the district court dismissed the County's complaint and the County appealed, we certified questions to the Nevada Supreme Court, see Mineral County v. Walker River Irrigation Dist. , 900 F.3d 1027, 1034 (9th Cir. 2018), which the state court has now answered, holding that Nevada's "public trust doctrine applies to rights already adjudicated and settled under the doctrine of prior appropriation," but that "the public trust doctrine does not permit reallocating water rights already adjudicated and settled under the doctrine of prior appropriation." Mineral County v. Lyon County , 473 P.3d 418, 425, 430 (Nev. 2020) (en banc).

In light of the Nevada Supreme Court's decision, we vacate the judgment of the district court and remand with instructions to consider the County's public trust doctrine claim to the extent it seeks remedies that would not involve a reallocation of adjudicated water rights. We also reject as untimely the County's challenge to the 1936 Decree itself.

I. BACKGROUND

We summarized the background of this litigation in our August 2018 certification order:

A. The Walker River Basin and Walker Lake's Decline

The Walker River Basin covers about 4000 square miles, running northeast from its origins in the Sierra Nevada Mountains in California before turning south and ultimately flowing into Walker Lake in Nevada. The first quarter of the basin lies in California, and California accounts for a majority of the precipitation and surface water flow into the basin. The vast majority of the water is consumed across the border in Nevada.

Walker Lake is about 13 miles long, five miles wide and 90 feet deep—a large lake by most any measure. But its size and volume have shrunk significantly since they were first measured in 1882. By 1996, Walker Lake had retained just 50 percent of its 1882 surface area and 28 percent of its 1882 volume. Today's Walker Lake also suffers from high concentrations of total dissolved solids ("TDS")—meaning it has a high salt content, low oxygen content and a high temperature.

These conditions have drastically degraded the lake's environmental and economic well-being. The high TDS concentrations have proven so inhospitable to fish species that, according to Mineral County, much of the lake's fishing industry "has been eliminated for the time being." Walker Lake's decline also threatens its status as an important shelter for migratory birds, and it has "drive[n] away the many Nevadans and other Americans who used Walker Lake for recreational enjoyment and economically productive activities." Although the parties dispute the cause of Walker Lake's troubles, it seems clear that upstream appropriations play at least some part, together with declining precipitation levels and natural lake recession over time.

B. Litigation Over Water Rights in the Basin

In an effort to protect and rehabilitate Walker Lake, Mineral County intervened in the long-running litigation over water rights in the Walker River Basin. That litigation began in 1902, when one cattle and land company sued another in the United States District Court for the District of Nevada over appropriations from the Walker River. After considerable back and forth in state and federal court—including a Supreme Court decision holding that the Nevada federal court had prior, exclusive jurisdiction over the action, see Rickey Land & Cattle Co. v. Miller & Lux , 218 U.S. 258, 262, 31 S.Ct. 11, 54 L.Ed. 1032 (1910) —the case ended in 1919.

Five years later, the United States brought a new action in Nevada federal court, seeking to establish the water rights of the Walker Lake Paiute Tribe. After 12 more years of litigation—bringing us to 1936—that proceeding resulted in the Walker River Decree. The Walker River Decree adjudicated the water rights of hundreds of claimants under the doctrine of prior appropriation.^[1] The Decree also created the Walker River Commission and the United States Board of Water Commissioners. The federal district court in Nevada has maintained jurisdiction over the Decree and its administration ever since.

In 1987, the Paiute Tribe intervened in the Walker River litigation to establish procedures for reallocating water rights under the Decree. Since that proceeding's conclusion in 1988, the Nevada State Engineer reviews all applications to change allocations under the Decree in Nevada, subject to review by the Nevada federal district court. It appears that Nevada's prior appropriation law, which has largely been codified, governs the Engineer's decisions and the district court's review. See, e.g. , Nev. Rev. Stat. § 533.370 ; see also Greg Walch, Water Law: 9 Treading Water Law—A Nevada Water Rights Primer , 6 Nev. Law. 18, 18 (Nov. 1998) (discussing the history of prior appropriation and its codification in Nevada). Next, in 1991, the Paiute Tribe and the United States sought recognition of the Tribe's right to a certain additional amount of water from the Walker River, under a principle that Native American tribes have superior water rights based on their relationship to the federal government ....

C. Mineral County's Intervention

In 1994, Mineral County moved to intervene in the Decree litigation. The district court granted the motion in 2013. The amended complaint in intervention alleges that "[a]ctivities and businesses attributable to the presence and use of Walker Lake represent[ ] approximately 50% of the economy of Mineral County." The complaint asks the Decree court, "pursuant to its continuing jurisdiction under ... the ... Decree, [to] reopen and modify the final Decree to recognize the rights of Mineral County ... and the public to have

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