United States v. Orr Water Ditch Co.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge NOONAN.

WILLIAM A. FLETCHER, Circuit Judge:

The town of Fernley, Nevada, has applied to the Nevada State Engineer to change the manner and place of use of rights to roughly 280 acre-feet of water from the federal Newlands Reclamation Project. The Pyramid Lake Paiute Tribe of Indians and the federal government oppose the proposed transfers, contending that the water rights at issue have been forfeited or abandoned under Nevada state law. The district court affirmed the decision of the Nevada State Engineer that none of the water rights had been forfeited or abandoned. We reverse and remand for further proceedings.

I. Factual Background

The Newlands Reclamation Project (“the Project”) diverts the flow of the Truckee and Carson rivers to supply the needs of water users in Nevada. The Project has two divisions, named after the two rivers. At Derby Dam, the Project diverts part of the flow of the Truckee River southward through the Truckee Canal to join the Carson River at Lahontan Reservoir. From Lahontan Reservoir, the augmented Carson flows east, where its water is distributed to users in and around the city of Fallon, in…

dissenting:

In 1902, the United States initiated the appropriation of the water rights here in dispute by the enactment of the Reclamation Act. See Nevada v. United States, 463 U.S. 110, 115-117 , 103 S.Ct. 2906 , 77 L.Ed.2d 509 (1983). In so doing, the United States acted as trustee on behalf of the later individual owners of land within the Reclamation Project. Id. at 126 , 103 S.Ct. 2906 . These water rights were consequently not subject to forfeiture and can now be transferred as the State Engineer and the district court ruled. In reaching the result it does, the majority silently but effectively departs from what the Supreme Court of the United States has already determined.

*949 There cannot be any argument that when the United States began the New-lands Reclamation Project in 1902, it initiated the appropriation of the relevant water rights. Nothing prior to the enactment of the 1902 statute initiated the appropriation. Anything after 1902 merely carried out what had begun in 1902. This year was accordingly the priority date for ownership of the water rights, and the Reclamation Act was the first step in establishing beneficial ownership of the water for the individual…