Court reverses water transfer ruling in favor of Indian tribe
CARSON CITY, Nev. (AP) – A federal appeals court on Thursday reversed a lower court’s ruling that would have allowed a series of water transfers from the Truckee River to a northwest Nevada town.
The 9th U.S. Circuit Court of Appeals provided a victory for the Pyramid Lake Paiute Tribe and the federal government which sharply opposed the water transfers to users in Fernley.
The tribe and Justice Department officials sought to keep the water flowing into Pyramid Lake, which has shrunk over the years because of drought and other diversions.
In a 27-page opinion, circuit judges William Fletcher and Mary Schroeder reversed the District Court of Nevada’s ruling, while Chief Judge John Noonan dissented.
”The ruling is wrong,” said Paul Taggart, a lawyer for the Nevada state engineer – one of the principals in the case. ”The 9th Circuit Court got the law wrong.”
Taggart said his client may ask for a motion for reconsideration in the 9th Circuit Court, or appeal the ruling to the U.S. Supreme Court.
”The ruling makes farmers’ water rights subject to forfeiture,” he said. ”That makes it easier for the tribe to prove that these water rights no longer exist – that hurts the farmers and helps the tribe.”
The ruling stems from a case in which the town of Fernley applied to the Nevada state engineer – who at the time was Michael Turnipseed – ”to change the manner and place of use of rights” to roughly 280 acre-feet of water from the federal Newlands Reclamation Project.
The Newlands Reclamation Project diverts the flow of the Truckee and Carson rivers to supply the needs of water users in Nevada.
The tribe and the federal government opposed the transfers, contending that the water rights at issue had been forfeited or abandoned under Nevada state law.
Under Nevada law, a water right is forfeited if it is not used for five successive years.
However, Nevada law specifies that the forfeiture statute does not apply to water rights that were vested or for which appropriations before the statute took effect March 22, 1913.
If a water right is exempted for the forfeiture statute, it may be lost only through abandonment.
The district court had affirmed the decision of the Nevada state engineer that none of the water rights had been forfeited or abandoned.
The Paiute Tribe resides on a half million-acre reservation in Nevada that surrounds Pyramid Lake.
Pyramid Lake once received the entire flow of the Truckee River but it now receives only what remains after the river has been tapped by the Newlands Project.
Newlands Project diversions have reduced the size of the lake and hurt its ecology, threatening several varieties of fish.
The Paiute Tribe asked the state engineer not to grant the water rights on grounds that they haven’t been used for years. They contended the rights should be forfeited so more water would flow into Pyramid Lake.
However, the state engineer approved the transfer of all but a few of the water rights on the basis that Fernley was the bona fide owner of the water rights and that the town had been paying the operation and maintenance fees for those rights.
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