United States v. U.S. Board of Water Commissioners, No. 15-16316 (9th Cir. 2018)
Annotate this CaseFarmers filed suit alleging injury to their water rights after the Nevada State Engineer and the California State Water Resources Control Board approved change applications for a voluntary water rights leasing program managed by the National Fish and Wildlife Foundation in the Walker River Basin. The Ninth Circuit principally held that the Decree court failed to defer to the findings and conclusions of the state agencies and, to the extent the Decree court entered its own findings, those findings were clear error. In this case, the Engineer properly found that a transfer to the Foundation limited to the consumption portion would avoid conflict and injury to other existing water rights, the findings were supported by substantial evidence, and the Engineer applied the correct legal rule. The panel also held that the export restriction of the Walker River Decree did not prohibit delivering water to Walker Lake because Walker Lake was part of the Walker River Basin.
Court Description: Water Rights. The panel reversed the district court’s judgment and remanded in an action brought by farmers who alleged injury to their water rights arising from state agency approval of modifications to a water rights leasing program in the Walker River Basin. The Nevada district court has maintained in rem jurisdiction over the waters of Walker River in accordance with the Walker River Decree of 1936, which governs the water rights in the Walker River Basin. In 2009, Congress established the Walker Basin Restoration Program, which allocated funding to be administered by the National Fish and Wildlife Foundation to acquire water and water rights for the purpose of restoring and maintaining Walker Lake, the terminus of the Walker River. Under the program, the Foundation leases or purchases flow and storage rights from willing sellers, and uses those rights to convey water downstream to feed the Lake. The Foundation and the Walker River Irrigation District both submitted applications seeking modifications to their decreed water rights. The Foundation requested changes to the place of use where water was diverted, and changes to the purpose of use from irrigation to wildlife purposes. The Nevada State Engineer approved the Foundation’s application, finding that no party would suffer injury from the 14 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS changes because the Foundation agreed to limit its in-stream water use to the historic consumptive use portion of its decreed water rights, the amount actually used and consumed by agriculture, and to dedicate to the non-consumptive portion to mitigate hydrological system loss. The California State Water Control Board approved the separate application of the Irrigation District to temporarily change its decreed water storage rights, finding that the farmers who objected to the proposed changes failed to demonstrate any right to the stored water that would be injured. The district court rejected the state agency rulings, refused to grant the change applications, and remanded to the state agencies after finding that the proposed modifications would injure the water rights of farmers. The panel held that (1) it had jurisdiction over the action because the district court’s remand order was sufficiently final, (2) state law applied, (3) it would review the district court’s decision de novo, and (4) the district court was required to afford the same level of deference to the state agencies as the state courts would. The panel held that the district court failed to defer to the findings and conclusions of the state agencies. The panel considered the record before the Nevada State Engineer, and concluded that the Engineer properly found that a transfer to the Foundation limited to the consumption portion would avoid conflict and injury to other existing water rights. The panel held that the findings were supported by substantial evidence and that the Engineer applied the correct legal rule. The panel held that to the extent the district court made its own findings of fact, those findings were clearly erroneous. The panel further held that the California State Water Control NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 15 Board’s finding that the changes proposed by the Irrigation District “would not injure any legal use of the water” was consistent with the Walker River Decree of 1936 and in accord with California law. The panel held that Walker Lake is part of the Walker River Basin. Consequently, the panel held that dedicating water from the Walker River to Walker Lake did not violate the Decree’s prohibition on delivering water outside of the basin of the Walker River. The panel reversed the district court’s judgment, vacated the district court’s opinion and remanded for approval of the change applications.
The court issued a subsequent related opinion or order on June 22, 2018.
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