Recalculation Needed to Determine Whether Irrigation District Exceeded Diversion Limits

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By Lars-Eric Hedberg

A federal appeals court took the unusual step of amending its mandate for a district court to recalculate the effect of a gauge error in four specific years to determine whether an irrigation district exceeded limits for water diversions and ordered the court to consider an additional four years (United States v. Board of Directors of the Truckee-Carson Irrigation District, 9th Cir., No. 12-15474, 7/22/13).

In a July 22 opinion, the U.S. Court of Appeals for the Ninth Circuit took “the rare step of correcting a prior mandate” that called for the U.S. District Court for the District of Nevada to recalculate “the effect of gauge error in four specific years in which the district court had found excess diversions.”

The new mandate directs the district court to consider on remand whether the Truckee-Carson Irrigation District diversions not only exceeded applicable limits in 1974, 1975, 1978, and 1979 but also whether these diversions exceeded applicable limits in 1973, 1976, 1983, and 1986.

In addition to withdrawing an earlier mandate and issuing a revised one, the panel also vacated the judgment of the district court and dismissed appeals from Churchill County and the State of Nevada.

This decades-long dispute generally concerns how much water from the Truckee and Carson Rivers should be diverted for irrigation and how much should flow into Pyramid Lake for use of the Pyramid Lake Paiute Indian Tribe. Specifically at issue is which years the district court should consider in issuing an order of recoupment for excess diversions by the irrigation district, and how the district court should make this determination.

Recalculation of Excess Diversions Ordered

The United States claimed that water diverted by the irrigation district between 1973 and 1988 was in excess of the amount allowed by regulation.

The district court first calculated the amount of water diverted based on the low end of the margin of error for 1974, 1975, 1978, and 1979. According to the opinion, this had the effect of assigning all uncertainty in the flow calculations in favor of the irrigation district.

The tribe and the government, as the tribe's fiduciary, appealed the U.S. Court of Appeals for the Ninth Circuit, which ruled that the district court, in calculating the amount of excess diversions, improperly used the low end of the margin of error with respect to gauges that measured the flow of diversions (United States v. Bell, 602 F.3d 1074 (9th Cir. 2010)). It directed the district court “to recalculate the amount of the diversions based on the government's published quantities and without regard to the confidence intervals.”

Although the appeals court did not affirm the method and the amount of excess diversions, it affirmed the district court's order that there be recoupment for excess diversions for the four specific years and remanded for determination of the amounts of excess diversions for these years.

The district court applied the margin error called for by the appeals court to the four years it had previously ruled had excess diversions by the irrigation district.

During the remand proceedings, the government realized that the gauge error called for by the appeals court and applied by the district court would potentially mean that the irrigation district had exceeded its diversion amounts in other years between 1973 and 1988. The district court, however, could only limit the scope of its recalculations to the appeals court's remand instructions in Bell.

Recalculation for Additional Years Mandated

The government argued to the appeals court “that if the district court had not initially calculated the amounts of water diverted by using the low end of the margin of error, it may have found that there were excess diversions in other years.” According to the government's expert, using the new margin of error would lead to a finding of excess diversions in four additional years - 1973, 1976, 1983, and 1986.

Despite the fact that the government failed to move for a rehearing of the prior opinion to correct the mistake, the appeals court stated that it “should have ordered recalculation of the gauge error's impact in all the years potentially affected.”

The appeals court noted that although it does not ordinarily disturb a judgment after a mandate has been issued, “this is not an ordinary litigation.” It needed to correct the mistake because the gauge error could affect analysis in years to come, and because the government acts as a fiduciary on behalf of the tribe to assure that all waters that should, in a legal sense, flow into Pyramid Lake do so. Moreover, the appeals court reasoned that the irrigation district, which is at fault for excess diversions, would benefit from the court's mistake - hardly an equitable outcome.

Lastly, the appeals court found that because nether the state nor the county would be injured or negatively affected by the judgment on remand from Bell, they have no standing on this appeal.

Katherine Barton of the Department of Justice argued on behalf of the United States. Ignacia Moreno, Stephen Macfarlane, and David C. Shilton of DOJ also represented the government.

Don Springmeyer of Wolf, Rifkin, Shapiro, Schulman & Rabkin LLP argued on behalf of the tribe. Christopher Mixson of Wolf, Rifkin, Shapiro, Schulman & Rabkin LLP also represented the tribe.

Neil Bardack of Hanson Bridgett LLP argued on behalf of the irrigation district. Michael Van Zandt of Hanson Bridgett LLP also represented the irrigation district.

Therese Ure of Schroeder Law Offices PC argued on behalf of Churchill County. Laura Schroeder of Schroeder Law Offices PC also represented the county.

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