United States v. Nevada State Engineer ( 2010 )

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 07 2010 MO LLY C. DW YER, CLERK UNITED STATES OF AMERICA, No. 08-16767 U .S. C O U R T O F APPEALS Plaintiff, D.C. No. 3:73-cv-00203-LDG and MEMORANDUM * PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Petitioner - Appellant, v. ALPINE LAND & RESERVOIR CO., Defendant, NEVADA STATE ENGINEER, Respondent - Appellee, and ASPEN CREEK, LLC; DAYTON VALLEY INVESTORS, LLC; STANTON PARK DEVELOPMENT, INC., Real-parties-in-interest - Appellees. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding Argued and Submitted July 15, 2009 San Francisco, California Before: HALL, W. FLETCHER and PAEZ, Circuit Judges. The legal issues in this appeal are essentially identical to those we decided in United States v. Orr Water Ditch Co., No. 07-17001. We have filed a published opinion in that case today. This appeal arises from Ruling 5823 of the Nevada State Engineer, allocating groundwater rights in the Dayton Valley Hydrographic Basin (“the Basin”). The Pyramid Lake Paiute Tribe of Indians (“the Tribe”) opposed many of the applications. The Tribe contended that the groundwater in the Basin was over- appropriated and that granting the applications would impair their federally decreed water rights under the Alpine Decree. The State Engineer ruled against the Tribe. Inter alia, the Engineer ruled that the Tribe’s decreed water rights were not protected against diminution as a result of allocations of groundwater. The Tribe appealed the Engineer’s ruling to the federal district court. The district court held that it did not have subject matter jurisdiction over the Tribe’s appeal, holding that the appeal should be brought in the Nevada state court 2 in Lyon County. The district court so held even though the Tribe contended in its appeal that the Engineer’s ruling adversely affected its water rights under the Alpine Decree. The district court’s holding is inconsistent with our decision today in United States v. Orr Water Ditch Co. We vacate and remand to the district court for further proceedings consistent with that decision. VACATED and REMANDED. 3