United States v. US Board of Water Comm'r , 890 F.3d 1134 ( 2018 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,             No. 15-16316
    Plaintiff,
    D.C. No.
    WALKER RIVER PAIUTE TRIBE,            3:73-cv-00125-
    Intervenor-Plaintiff,     RCJ-WGC
    NATIONAL FISH AND WILDLIFE
    FOUNDATION,
    Petitioner,
    MINERAL COUNTY,
    Intervenor-Plaintiff,
    and
    NEVADA STATE ENGINEER,
    Respondent-Appellant,
    v.
    UNITED STATES BOARD OF WATER
    COMMISSIONERS,
    Participant-Appellee,
    BACKTRACK, LLC; BALE COUNTER,
    INC.; GARY M. BERRINGTON;
    BERRINGTON CUSTOM HAY
    HAULING & TRANS., INC.; DAMIAN,
    LTD.; PETER A. FENILI; GDA
    2 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    DEGREE, INC.; GARY G. GARMS;
    GARY J. GARMS; KARI D. GARMS;
    TONI GARMS; GARMSLAND LIMITED,
    LLC; HIGH SIERRA GARLIC;
    JACKAROO, LLC; SETTELMEYER-
    ROSSE RANCH MANAGEMENT, LLC;
    SIX-N-RANCH, INC.; STRAGGLER,
    LLC,
    Objectors-Appellees,
    and
    NEVADA DEPARTMENT OF WILDLIFE;
    CALIFORNIA STATE WATER
    RESOURCES CONTROL BOARD;
    MONO COUNTY, CALIFORNIA; LYON
    COUNTY, NEVADA,
    Respondents,
    WALKER LAKE WORKING GROUP;
    WALKER RIVER IRRIGATION
    DISTRICT,
    Defendants.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 3
    UNITED STATES OF AMERICA,             No. 15-16317
    Plaintiff,
    D.C. No.
    WALKER RIVER PAIUTE TRIBE,            3:73-cv-00125-
    Intervenor-Plaintiff,     RCJ-WGC
    NATIONAL FISH AND WILDLIFE
    FOUNDATION,
    Petitioner,
    MINERAL COUNTY,
    Intervenor-Plaintiff,
    and
    NEVADA DEPARTMENT OF WILDLIFE,
    Respondent-Appellant,
    v.
    UNITED STATES BOARD OF WATER
    COMMISSIONERS,
    Participant-Appellee,
    BACKTRACK, LLC; BALE COUNTER,
    INC.; GARY M. BERRINGTON;
    BERRINGTON CUSTOM HAY
    HAULING & TRANS., INC.; DAMIAN,
    LTD.; PETER A. FENILI; GDA
    DEGREE, INC.; GARY G. GARMS;
    GARY J. GARMS; KARI D. GARMS;
    TONI GARMS; GARMSLAND LIMITED,
    LLC; HIGH SIERRA GARLIC;
    4 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    JACKAROO, LLC; SETTELMEYER-
    ROSSE RANCH MANAGEMENT, LLC;
    SIX-N-RANCH, INC.; STRAGGLER,
    LLC,
    Objectors-Appellees,
    and
    NEVADA STATE ENGINEER;
    CALIFORNIA STATE WATER
    RESOURCES CONTROL BOARD;
    MONO COUNTY, CALIFORNIA; LYON
    COUNTY, NEVADA,
    Respondents,
    WALKER LAKE WORKING GROUP;
    WALKER RIVER IRRIGATION
    DISTRICT,
    Defendants.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 5
    UNITED STATES OF AMERICA,             No. 15-16319
    Plaintiff,
    WALKER RIVER PAIUTE TRIBE,               D.C. No.
    Intervenor-Plaintiff,   3:73-cv-00125-
    RCJ-WGC
    MINERAL COUNTY,
    Intervenor-Plaintiff,
    and
    NATIONAL FISH AND WILDLIFE
    FOUNDATION,
    Petitioner-Appellant,
    v.
    UNITED STATES BOARD OF WATER
    COMMISSIONERS,
    Participant-Appellee,
    BACKTRACK, LLC; BALE COUNTER,
    INC.; GARY M. BERRINGTON;
    BERRINGTON CUSTOM HAY
    HAULING & TRANS., INC.; DAMIAN,
    LTD.; PETER A. FENILI; GDA
    DEGREE, INC.; GARY G. GARMS;
    GARY J. GARMS; KARI D. GARMS;
    TONI GARMS; GARMSLAND LIMITED,
    LLC; HIGH SIERRA GARLIC;
    JACKAROO, LLC; SETTELMEYER-
    ROSSE RANCH MANAGEMENT, LLC;
    SIX-N-RANCH, INC.; STRAGGLER,
    6 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    LLC,
    Objectors-Appellees,
    and
    NEVADA STATE ENGINEER; NEVADA
    DEPARTMENT OF WILDLIFE;
    CALIFORNIA STATE WATER
    RESOURCES CONTROL BOARD;
    MONO COUNTY, CALIFORNIA; LYON
    COUNTY, NEVADA,
    Respondents,
    WALKER LAKE WORKING GROUP;
    WALKER RIVER IRRIGATION
    DISTRICT,
    Defendants.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 7
    UNITED STATES OF AMERICA,             No. 15-16321
    Plaintiff,
    WALKER RIVER PAIUTE TRIBE,               D.C. No.
    Intervenor-Plaintiff,   3:73-cv-00125-
    RCJ-WGC
    NATIONAL FISH AND WILDLIFE
    FOUNDATION,
    Petitioner,
    MINERAL COUNTY,
    Intervenor-Plaintiff,
    and
    WALKER RIVER IRRIGATION
    DISTRICT,
    Defendant-Appellant,
    v.
    UNITED STATES BOARD OF WATER
    COMMISSIONERS,
    Participant-Appellee,
    BACKTRACK, LLC; BALE COUNTER,
    INC.; GARY M. BERRINGTON;
    BERRINGTON CUSTOM HAY
    HAULING & TRANS., INC.; DAMIAN,
    LTD.; PETER A. FENILI; GDA
    DEGREE, INC.; GARY G. GARMS;
    GARY J. GARMS; KARI D. GARMS;
    TONI GARMS; GARMSLAND LIMITED,
    8 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    LLC; HIGH SIERRA GARLIC;
    JACKAROO, LLC; SETTELMEYER-
    ROSSE RANCH MANAGEMENT, LLC;
    SIX-N-RANCH, INC.; STRAGGLER,
    LLC,
    Objectors-Appellees,
    and
    NEVADA STATE ENGINEER; NEVADA
    DEPARTMENT OF WILDLIFE; MONO
    COUNTY, CALIFORNIA; LYON
    COUNTY, NEVADA,
    Respondents,
    WALKER LAKE WORKING GROUP,
    Defendant.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 9
    UNITED STATES OF AMERICA,              No. 15-16323
    Plaintiff,
    WALKER RIVER PAIUTE TRIBE,                D.C. No.
    Intervenor-Plaintiff,    3:73-cv-00125-
    RCJ-WGC
    NATIONAL FISH AND WILDLIFE
    FOUNDATION,
    Petitioner,
    and
    MINERAL COUNTY,
    Intervenor-Plaintiff-Appellant,
    WALKER LAKE WORKING GROUP,
    Defendant-Appellant,
    v.
    UNITED STATES BOARD OF WATER
    COMMISSIONERS,
    Participant-Appellee,
    BACKTRACK, LLC; BALE COUNTER,
    INC.; GARY M. BERRINGTON;
    BERRINGTON CUSTOM HAY
    HAULING & TRANS., INC.; DAMIAN,
    LTD.; PETER A. FENILI; GDA
    DEGREE, INC.; GARY G. GARMS;
    GARY J. GARMS; KARI D. GARMS;
    TONI GARMS; GARMSLAND LIMITED,
    LLC; HIGH SIERRA GARLIC;
    10 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    JACKAROO, LLC; SETTELMEYER-
    ROSSE RANCH MANAGEMENT, LLC;
    SIX-N-RANCH, INC.; STRAGGLER,
    LLC,
    Objectors-Appellees,
    and
    NEVADA STATE ENGINEER; NEVADA
    DEPARTMENT OF WILDLIFE; MONO
    COUNTY, CALIFORNIA; LYON
    COUNTY, NEVADA,
    Respondents,
    WALKER RIVER IRRIGATION
    DISTRICT,
    Defendant.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 11
    UNITED STATES OF AMERICA,             No. 15-16489
    Plaintiff,
    D.C. No.
    NATIONAL FISH AND WILDLIFE            3:73-cv-00125-
    FOUNDATION,                             RCJ-WGC
    Petitioner,
    MINERAL COUNTY,                         OPINION
    Intervenor-Plaintiff,
    and
    WALKER RIVER PAIUTE TRIBE,
    Intervenor-Plaintiff-Appellant,
    v.
    UNITED STATES BOARD OF WATER
    COMMISSIONERS,
    Participant-Appellee,
    BACKTRACK, LLC; BALE COUNTER,
    INC.; GARY M. BERRINGTON;
    BERRINGTON CUSTOM HAY
    HAULING & TRANS., INC.; DAMIAN,
    LTD.; PETER A. FENILI; GDA
    DEGREE, INC.; GARY G. GARMS;
    GARY J. GARMS; KARI D. GARMS;
    TONI GARMS; GARMSLAND LIMITED,
    LLC; HIGH SIERRA GARLIC;
    JACKAROO, LLC; SETTELMEYER-
    ROSSE RANCH MANAGEMENT, LLC;
    12 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    SIX-N-RANCH, INC.; STRAGGLER,
    LLC,
    Objectors-Appellees,
    and
    NEVADA DEPARTMENT OF WILDLIFE;
    NEVADA STATE ENGINEER;
    CALIFORNIA STATE WATER
    RESOURCES CONTROL BOARD;
    MONO COUNTY, CALIFORNIA; LYON
    COUNTY, NEVADA,
    Respondents,
    WALKER LAKE WORKING GROUP;
    WALKER RIVER IRRIGATION
    DISTRICT; JOSEPH LANDOLT;
    BEVERLY LANDOLT,
    Defendants.
    Appeal from the United States District Court
    for the District of Nevada
    Robert Clive Jones, District Judge, Presiding
    Argued and Submitted August 30, 2017
    Pasadena, California
    Filed May 22, 2018
    Before: A. Wallace Tashima, Raymond C. Fisher,
    and Jay S. Bybee, Circuit Judges.
    Opinion by Judge Bybee
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 13
    SUMMARY*
    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
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    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.
    COUNSEL
    Don Springmeyer (argued) and Christopher Mixson, Wolf
    Rifkin Shapiro Schulman & Rabkin LLP, Las Vegas, Nevada;
    Jamie Morin, Mentor Law Group PLLC, Seattle, Washington;
    for Petitioner-Appellant National Fish and Wildlife
    Foundation.
    Micheline Noel Nadeau Fairbank (argued) and Bryan L.
    Stockton, Senior Deputy Attorneys General; Adam Paul
    Laxalt, Attorney General; Office of the Attorney General,
    Carson City, Nevada; for Respondent-Appellant State of
    Nevada.
    Gordon DePaoli (argued) and Dale E. Ferguson, Woodburn
    and Wedge, Reno, Nevada, for Defendant-Appellant Walker
    River Irrigation District.
    Simeon Herskovits (argued), Advocates for Community &
    Environment, El Prado, New Mexico; Sean A. Rowe, Mineral
    16 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    County District Attorney, Hawthorne, Nevada; for Plaintiff-
    Intervenor-Plaintiff-Appellant Mineral County and
    Defendant-Appellant Walker Lake Working Group.
    Wes Williams Jr., Law Offices of Wes Williams Jr. P.C.,
    Schurz, Nevada, for Intervenor-Plaintiff-Appellant Walker
    River Paiute Tribe.
    Karen A. Peterson (argued), Justin M. Townsend, Kyle A.
    Winter, and Willis M. Wagner, Allison MacKenzie Ltd.,
    Carson City, Nevada, for Participant-Appellee United States
    Board of Water Commissioners.
    Elizabeth Ann Peterson, David L. Negri, Andrew “Guss”
    Guarino, Katherine J. Barton, David C. Shilton, and William
    B. Lazarus, Attorneys; John C. Cruden, Assistant Attorney
    General; United States Department of Justice, Washington,
    D.C.; for Amicus Curiae United States of America.
    Jan Zabriskie, Deputy Attorney General; Annadel A.
    Almendras and Tracy L. Winsor, Supervising Deputy
    Attorneys General; Robert W. Byrne, Senior Assistant
    Attorney General; Office of the Attorney General,
    Sacramento, California; for Amicus Curiae California State
    Water Resources Control Board.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 17
    OPINION
    BYBEE, Circuit Judge:
    Water was plentiful when the first settlers arrived in
    northwestern Nevada ten thousand years ago. Massive Lake
    Lahontan spread from the Sierra Nevada to the Carson Sink,
    the Black Rock Desert, and as far as California and Oregon.
    “The world,” they said, “was all water.”1 Lake Lahontan has
    slowly vanished over the years, and now survives only in the
    form of a few desert lakes, including the subject of this case,
    Walker Lake, the terminus of the Walker River.
    Walker Lake has suffered since the 1860s, when the
    River’s waters were first diverted for agriculture, and the
    Lake’s volume has plummeted precipitously in recent years.
    In response, federal, state, tribal, local, and private
    organizations and authorities have banded together to save the
    Lake. The federal program at issue in this case is a voluntary
    water rights leasing program managed by the National Fish
    and Wildlife Foundation (“NFWF”) to convey water from
    Walker River downstream to the Lake as part of the federal
    Walker Basin Restoration Program. Like duck stamps and
    emissions markets, NFWF’s program proposes to employ free
    market forces to restore a natural balance between the
    competing demands of agriculture and conservation.
    The Nevada State Engineer and the California State Water
    Resources Control Board approved change applications for
    NFWF’s program over the objections of farmers (“the
    Farmers”) who claim injury to their water rights. The
    1
    NEVADA: A GUIDE TO THE SILVER STATE 218 (Nev. State Historical
    Soc’y, Inc. 1940).
    18 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    Farmers brought their complaints to the district court which,
    as the Decree court, has maintained in rem jurisdiction over
    the waters of Walker River since 1902 in accordance with the
    Walker River Decree of 1936. The Decree court rejected the
    state agency rulings, and found that the program, as proposed,
    would injure the Farmers’ water rights.
    We examine two questions. First, did the Decree court
    properly reject the state agency rulings—that NFWF’s
    program would not cause any cognizable injury to the
    Farmer’s water rights—based on its de novo review of the
    Walker River Decree? Second, does the export restriction of
    the Walker River Decree prohibit delivering water to Walker
    Lake because it is “outside of” the Walker River Basin? We
    answer both questions in the negative, reverse the judgment
    of the Decree court, and remand for approval of the change
    applications.
    I. FACTS AND PROCEDURAL HISTORY
    A. The River and the Lake
    The Walker River consists of two forks that begin in
    California and end in Nevada. The West Walker River
    springs from the Emigrant Wilderness of Stanislaus National
    Forest, and flows through Topaz Lake and north into
    Nevada’s Smith and Mason Valleys. The East Walker River
    springs from the Hoover Wilderness, passes through
    Bridgeport Reservoir and into Nevada east of the Wovoka
    Wilderness and Bald Mountain, before streaming into Mason
    Valley. The forks join by Yerington and flow north to
    Wabuska, before turning southeasterly through the land of the
    Walker River Paiute Tribe (“the Tribe”). See United States
    v. Walker River Irrigation Dist., 11 F. Supp 158, 161 (D.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 
    19 Nev. 1935
    ). From there, the River flows through Weber
    Reservoir and Schurz, and into Walker Lake. See 
    id. at 160–62.
    Walker Lake is about 13 miles long by 5 miles wide,
    tucked against the east side of the Wassuk Range in Mineral
    County, Nevada. It is one of the last few puddle remnants of
    ancient Lake Lahontan.2 For centuries, the Lake served an
    important ecological role as fishery for the native Lahontan
    Cutthroat Trout—the state fish of Nevada—and as home and
    resting grounds for hundreds of species, including fish,
    insects, migratory birds, and wild horses.3 Human life at the
    Lake is quite ancient as well, dating back to the spearheads in
    2
    NEVADA: A GUIDE TO THE SILVER STATE 218 (Nev. State Historical
    Soc’y, Inc. 1940) (“In the steadfast intensity of its color and the beauty of
    its setting Walker Lake is one of the most impressive lakes in the West.
    As deeply and opaquely blue as the Mediterranean, under bright sunlight
    it looks like a field of heavy liquid of unfathomable depth. . . . The lake,
    impressive in its wild setting, has been the subject of numerous tall tales
    and people are occasionally met who swear that they have glimpsed the
    fabulous monster supposed to live in its blue depths.”).
    3
    In March 1885, a local publication “reported that Walker Lake was
    so crowded with Lahontan cutthroat trout that during the middle of the day
    long rows of the fish could be seen lying at the water’s edge on the sand
    sunning themselves.” Gary A. Horton, WALKER RIVER CHRONOLOGY II-
    12–13 (1996) (quoting the Walker Lake Bulletin), available at
    http://images.water.nv.gov/images/publications/River%20Chronologies
    /Walker%20River%20Chronology.pdf; see also Saxon E. Sharpe, et al.,
    Desert Research Institute, Pub. No. 41231, THE WALKER BASIN, NEVADA
    AND CALIFORNIA: PHYSICAL ENVIRONMENT, HYDROLOGY AND BIOLOGY
    27–32 (2008) (“DRI Report”).
    20 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    Mastodon bones and the petroglyphs carved by the Lake’s
    northern shores.4
    By the early 1860s, miners looked to the mountains of the
    Walker River Basin, seeking the same silver bonanzas
    unearthed in the Comstock Lode near Lake Tahoe. Following
    expanded mining operations, innovators in irrigation
    technology arrived to make the desert bloom. They
    succeeded. The Smith and Mason Valleys soon became the
    picturesque and fertile agricultural region they are today.
    More than half of the valley farmland is dedicated to alfalfa,
    Nevada’s cash crop.
    As agriculture boomed, water flows to Walker Lake
    diminished. See DRI Report, supra note 3, at 7. Between
    1882 and 2007, the Lake’s volume plummeted from nine
    million to two million acre feet and its salinity rose from
    2,500 mg/L total dissolved solids (TDS) to 16,000 mg/L
    TDS.5 Just a few years later in 2013, salinity exceeded
    20,000 mg/L TDS.6 Lahontan cutthroat trout die in such a
    saline environment; they and many other Lake residents have
    4
    NEVADA: A GUIDE TO THE SILVER STATE 24 (Nev. State Hist. Soc.,
    Inc. 1940).
    5
    DRI Report at 7; Michael W. Collopy & James M. Thomas, Desert
    Research Institute, RESTORATION OF A DESERT LAKE IN AN
    AGRICULTURALLY DOMINATED WATERSHED: THE WALKER LAKE BASIN
    ii–vii (2016), http://greatbasinresearch.com/walker/downloads/2016-
    Walker-Report-without-appendices.pdf.
    6
    Erik Borgen, et al., Desert Research Institute, Ecosystem
    Economics, Desert Research Institute, A SIMULATION MODEL FOR
    EVALUATING WATER ACQUISITIONS TO REDUCE TOTAL DISSOLVED
    SOLIDS IN WALKER LAKE 6 (2014), http://goo.gl/CWgQRg (indicating
    TDS levels of 21,800 mg/L in Walker Lake in January 2014).
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 21
    vanished. With the death of its aquatic life, migratory birds
    have begun to abandon the Lake. Even the midges, side
    swimmers, and damselflies have disappeared from the Lake
    on a search for a more hospitable habitat.7 A scum now lines
    the Lake’s receding shores.
    B. The Decree and River Administration
    The action before us was filed in 1924, but traces its
    history even further back, to 1902, when two cattle kings
    realized that the Walker River Basin wasn’t big enough for
    the two of them. Miller & Lux, the sprawling ranching
    enterprise owned by Henry Miller, the “Cattle King of
    California,” filed a quiet title action in Nevada district court
    against 150 defendants, including arch-rival Rickey Land &
    Cattle Co. owned by Thomas Rickey, the “Cattle King of the
    West.” Miller & Lux sought a declaration of appropriative
    water rights to a flow of 943.29 cubic-feet per second (cfs) of
    the Walker River for use on its Nevada lands. Miller & Lux
    v. Rickey, 
    127 F. 573
    , 575–76 (C.C.D. Nev. 1902). Rickey in
    turn sued Miller in California state court, seeking his own
    appropriative rights to a flow of 2,079 cfs for use on his
    California lands. For years the parties disputed the Nevada
    district court’s jurisdiction over California water rights,
    pleading deficiencies, and application of the now-extinct local
    action doctrine.
    The Nevada district court granted an antisuit injunction in
    Miller’s favor, and we affirmed. Rickey Land & Cattle Co.
    v. Miller & Lux, 
    152 F. 11
    , 22 (9th Cir. 1907). Because any
    given usufructory right to a flow has an inherent connection
    7
    U.S. Fish & Wildlife Service, Walker Lake Ecosystem: Research
    and Monitoring Summary Report 2006–2013 (2013).
    22 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    to all other such rights in the same stream, appropriative
    rights are conclusively established only by reference to all
    other competing rights. We held that this naturally requires
    exclusive jurisdiction over the entire res of the Walker River.
    
    Id. at 14–19.
    The Supreme Court agreed. Rickey Land &
    Cattle Co. v. Miller & Lux, 
    218 U.S. 258
    (1910) (Holmes, J.).
    After a decade of factfinding and hearings, the district court
    issued a final decree settling the rights to the River. Pac.
    Livestock Co. v. Thomas Rickey, In Equity No. 731, Final
    Decree (D. Nev. 1919) (“the Rickey Decree”). Under the
    Rickey Decree, the district court retained ancillary
    jurisdiction to resolve future disputes over rights to Walker
    River.
    The Walker River Irrigation District (“WRID”) was
    established in 1919. It built two reservoirs in 1919 and 1921:
    Topaz on the West Walker River, and Bridgeport on the East
    Walker River.8 In 1924 the United States filed an action—In
    Equity No. C-125—to quiet title to water rights to the Walker
    River as trustee for the Tribe. After another decade of service
    of process, the appointment of two Special Masters,
    factfinding, and hearings, the court issued a final Decree on
    April 14, 1936, amended in 1940 in ways not relevant here.
    Article I of the Decree recognizes the implied reserved
    rights of the United States as trustee to the Tribe. See Winters
    v. United States, 
    207 U.S. 564
    , 576–78 (1908). Article II
    recognizes in their entirety the rights established in the 1919
    Rickey Decree. Articles III–VII and IX provide for the flow
    and storage rights of new private parties. Article VIII
    recognizes WRID’s storage rights in the Topaz and
    8
    See NEV. REV. STAT. 539.013(2); James H. Davenport, NEVADA
    WATER LAW 34 (2009).
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 23
    Bridgeport reservoirs with respective priority dates of 1919
    and 1921, and the attendant authority to distribute the water
    stored there. Article X permits rightsholders to change the
    manner, means, place or purpose of use, or the point of
    diversion in the manner provided by law “so far as they may
    do so without injury to the rights of other parties hereto, as
    the same are fixed hereby.” Articles XI–XII provide that no
    party may relitigate a claim to water rights in the Walker
    River Basin, in the Nevada District Court or any other court,
    that was litigated in the original case as of April 14, 1936.
    Article XIII permits rightsholders to rotate their use of water,
    i.e., collectively or individually rotate water usage for
    improved efficiency, so long as no other rights are thereby
    injured. Article XIV establishes the district court’s continued
    jurisdiction “for the purpose of changing the duty of water or
    for correcting or modifying this decree; also for regulatory
    purposes, including a change of the place of use of any water
    user,” but stipulates that “no water shall be sold or delivered
    outside of the basin of the Walker River . . . .” Article XV
    permits the Decree court to designate a water master, which
    it did in 1937 by creating the U.S. Board of Water
    Commissioners (“the Water Commissioners”)—a six-
    member board overseen by a Water Master who apportions
    and distributes the River’s waters. Finally, Article XVI sets
    the irrigation season, which is today set at March 1 to October
    31. By establishing its continued jurisdiction over the action
    and the river, the district court became the “Decree court.”
    C. The Walker Basin Restoration Program
    In 2002, Congress began to allocate funds for desert
    terminal lake conservation. In 2009, it established the Walker
    Basin Restoration Program “for the primary purpose of
    restoring and maintaining Walker Lake.” Pub. L. No. 111-
    24 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    85, §§ 207–08, 123 Stat. 2845, 2858–60 (2009); 16 U.S.C.
    § 3839bb-6. The Program is designed as a voluntary water
    rights acquisition, trading, and leasing scheme to be jointly
    administered by NFWF and WRID. Under the program,
    NFWF leases or purchases flow and storage rights from
    willing sellers, and uses those rights to convey water
    downstream to feed the Lake. NFWF negotiated the program
    details with the Tribe and WRID. WRID thereafter adopted
    a regulation permitting rightsholders along the River to
    participate in the program by leasing their claims for in-
    stream use.
    NFWF purchased a number of claims with priority dates
    from 1874 to 1906, which cumulatively provide for
    7.745 cfs.9 In an effort to avoid injury to other rightsholders,
    NFWF entered into stipulations with WRID, Lyon County,
    the Tribe, the U.S. Department of the Interior Bureau of
    Indian Affairs, and several private rightsholders. Per these
    stipulations, NFWF agreed that program water would be
    limited to the consumptive use portion of its decreed claims:
    4.122 cfs out of 7.745 cfs.
    The consumptive use portion of a water right reflects the
    amount of water that is actually used and consumed by
    agriculture. When an upstream user appropriates water for
    irrigation, some portion of the water—the non-consumptive
    use portion—is not consumed by the crop and returns as
    runoff to the river, and for another rightsholder’s use
    downstream. For example, if Farmer A calls for a constant
    flow of 10 cfs, some variable non-consumptive portion
    returns to the river, say 4 cfs; the difference (6 cfs) is Farmer
    9
    These claims are identified as Decree Claims No. 23, 23-A, 35, 44,
    67, and 89.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 25
    A’s consumptive use portion. The 4 cfs that returns to the
    river is then available for Farmer B’s use. Effectively,
    Farmer A has the right to call for 10 cfs, but is consuming
    only 6 cfs. The consumptive and non-consumptive use
    portions of any given water right will vary depending on crop
    type, volume of irrigation water, and environmental factors.
    In this example, if Farmer A seeks to change the claim’s use
    by removing the entirety of the 10 cfs from the river, Farmer
    B’s right is injured through deprivation of the non-
    consumptive 4 cfs runoff. Determining whether a change to
    Farmer A’s use will injure Farmer B’s right thus requires
    determining how the change will affect the disposition of the
    non-consumptive portion of Farmer A’s water right.
    Here, NFWF acquired the rights to call for 7.745 cfs.
    NFWF’s hydrologists calculated a historic consumptive use
    portion at a flow rate of 4.122 cfs. The difference, 3.623 cfs,
    is the river runoff that was historically available to
    downstream rightsholders. So as not to injure these
    downstream claims, NFWF stipulated that it would call for
    program water only in the flow amount of 4.122 cfs over the
    course of the irrigation season, that is, approximately
    53 percent of its total appropriative rights to 7.745 cfs.
    NFWF further stipulated that the non-consumptive use
    portion of its claims—a flow of 3.623 cfs—would be
    administered by the Water Commissioners “in [their]
    discretion . . . to avoid conflict with and injury to existing
    water rights . . . and to mitigate hydrologic system losses.”
    D. State Agency Rulings
    Under Article X of the Decree, as well as the 1953 Rules
    and Regulations and the 1996 Administrative Rules and
    Regulations, both of which were approved by the Decree
    26 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    court, change applications—meaning any proposed changes
    in purpose or place of use—must first be presented to the
    state agencies for their approval.10 Applicants with Nevada
    water rights submit applications with the Nevada State
    Engineer, and applicants with California water rights submit
    applications to the California State Water Resources Control
    Board (“the California Control Board”).11
    1. The Nevada Ruling
    In 2011, NFWF applied with the Nevada State Engineer
    for approval of two changes to its claims to a cumulative
    7.745 cfs. First, NFWF requested changing the place of use
    to “within the Walker River from the Weir Diversion
    Structure through the USGS Wabuska Gauge, then through
    Weber Reservoir into and including Walker Lake.” The
    previous rightsholders had diverted the flow from the Weir
    Diversion Structure into the West Hyland Ditch, downstream
    from Yerington. Second, NFWF requested changing the
    purpose of use from irrigation to wildlife purposes. See NEV.
    REV. STAT. § 533.023. Effectively, NFWF sought approval
    not to remove the water obtained through exercise of its water
    10
    See Administrative Rules & Regulations Regarding Change of
    Point of Diversion, Manner of Use or Place of Use of Water of the Walker
    River and its Tributaries and Regarding Compliance with California Fish
    and Game Code Section 5937 and Other Provisions of California Law (as
    amended through June 3, 1996) (“1996 Adminstrative Rules &
    Regulations”).
    11
    The California Control Board only has authority over water rights
    established after 1914, when the Board was created. See Nat. Res. Def.
    Council v. Kempthorne, 
    621 F. Supp. 2d 954
    , 963 (E.D. Cal. 2009). In
    1990, the Decree court appointed the Board as a Special Master, thus
    authorizing the Board to make findings and recommendations as to pre-
    1914 claims. See Fed. R. Civ. P. 53(b).
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 27
    rights, so that water acquired from prior rightsholders may
    flow, as it naturally would, into Walker Lake. Appropriative
    rights in Nevada may be applied for a beneficial use in-
    stream, regardless of whether the water flows to areas not
    owned by the rightsholder. NEV. REV. STAT. § 533.040(2);
    State Bd. of Agric. v. Morros, 
    104 Nev. 706
    , 766 (1988).
    The Water Commissioners and a group of private parties
    (“the Farmers”) objected to both change applications. The
    objecting Farmers hold so-called New Land Stored Water
    Rights. That is, they operate farms on acres lacking
    associated decreed claims, and instead have contractual
    arrangements with WRID. They pay assessments to WRID,
    which provides them with surplus reservoir water from Topaz
    and Bridgeport. In other words, these are nondecreed rights
    to reservoir water, not appropriative flow or storage rights.
    The Water Commissioners and Farmers pressed two
    arguments. First, they argued that the changes would
    impermissibly injure their New Land Stored Water Rights.
    NFWF expects to call continuously for water during the
    irrigation season when in priority, whereas the farmers who
    previously owned the claims would on certain days
    occasionally not call for water, such as on harvesting days,
    which permitted the flow claims to be redirected by the Water
    Master for reservoir storage. As such, the Farmers argued
    that a continuous call would impermissibly injure their rights,
    because it would ultimately decrease the amount of reservoir
    water later available to meet their irrigation needs. Second,
    they argued that Walker Lake lies outside of the Walker River
    Basin. Thus, directing water to the Lake would violate
    Article XIV of the Decree: “[N]o water shall be sold or
    delivered outside of the basin of the Walker River.”
    28 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    The Nevada State Engineer, following public hearings,
    rejected both arguments and granted NFWF’s application.
    With respect to the question of injury, the Nevada State
    Engineer found that under NFWF’s consumptive use
    stipulation, no party would suffer injury. The State Engineer
    considered NFWF in the position of “an irrigator who has a
    decreed right to call for water on March 1st for the duration
    of the irrigation season,” and “as the holder of claims senior
    in priority to new lands storage rights, [NFWF] has the right
    to seek a change in the manner and place of use.” The State
    Engineer rejected any possibility that injury could occur
    under NFWF’s stipulations, because it had dedicated the non-
    consumptive portion of its decreed rights to the Water
    Commissioners to remedy any injury or hydrological
    efficiency loss caused by a continuous call of the
    consumptive use portion of its decreed appropriative rights.
    The State Engineer’s ruling adopted and incorporated the
    consumptive use stipulations in their entirety. Finally, the
    Engineer concluded that “Walker Lake is included in the
    Walker River basin.”
    2. The California Ruling
    Likewise, WRID applied to the California Control Board
    to temporarily change the place and purpose of use of its
    decreed storage rights for Topaz and Bridgeport. This change
    would allow WRID to distribute 25,000 acre-feet of stored
    water per season to Walker Lake to meet the in-stream water
    calls made by rightsholders within WRID who participate in
    the program. The temporary changes were intended to give
    WRID the time and flexibility to run the program for a trial
    season while preparing its application for permanent changes.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 29
    The California Control Board reviewed WRID’s
    temporary one-year change application under California
    Water Code § 1727. As relevant here, a party applying for a
    temporary change must show that:
    [t]he proposed temporary change would not
    injure any legal user of the water, during any
    potential hydrologic condition that the board
    determines is likely to occur during the
    proposed change, through significant changes
    in water quantity, water quality, timing of
    diversion or use, consumptive use of the
    water, or reduction in return flows.
    CAL. WATER CODE § 1727(b). See also CAL. WATER CODE
    §1707(b)(2) (changes may not “unreasonably affect any legal
    user of water”).
    The California Control Board overruled the objections of
    the Water Commissioners and the Farmers. It found that
    WRID had carried its burden because “petitioners do not
    request any changes in the diversion of water to storage;
    instead they only request changes in the place and purpose of
    use upon release from storage.” By contrast, the Water
    Commissioners and Farmers had failed to demonstrate “any
    right, under contract or otherwise, to the stored water that will
    be injured by the proposed temporary change.” As the
    California Control Board explained, under California law,
    changes to the purpose or place for which WRID releases
    reservoir water under its control cannot give rise to an injury,
    because WRID—not the Farmers—holds the statutory and
    decreed right to distribute this water to legal appropriative
    users. See Stevens v. Oakdale Irrigation Dist., 
    90 P.2d 58
    ,
    60–61 (Cal. 1939) (noting that a downstream user has no
    30 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    right to a continued release of artificial flow). Accordingly,
    the California Control Board concluded:
    It is not enough for a water user to show that
    it will receive less water as a result of the
    change. Instead, a water user claiming injury
    must demonstrate that it has a right to the
    greater amount of water claimed and that the
    proposed change will interfere with that
    right. . . . None of the commenters have
    demonstrated any right, under contract or
    otherwise, to the stored water that will be
    injured by the proposed temporary change.
    Like the Nevada State Engineer, the California Control Board
    rejected the argument that Walker Lake is not part of the
    Walker River Basin, noting that the Lake sits within the same
    hydrological drainage basin as the River.
    On motion for reconsideration, the California Control
    Board affirmed its decision with an amendment noting that “a
    stored water transfer . . . is not limited to the consumptive use
    portion of the water right,” because “a downstream water user
    who does not have a right to stored water cannot be injured
    by changes in releases of the stored water.” See CAL. WATER
    CODE § 1725 (permitting transfers of amounts that have been
    “consumptively used or stored”).
    E. Decree Court Ruling
    The Decree court rejected the Nevada State Engineer’s
    and California Control Board’s rulings, refused to grant the
    change applications, and remanded to the state agencies.
    First, the court found that the stipulated program water
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 31
    quantity would injure New Land Stored Water Rights,
    because NFWF would not mimic the historical consumptive
    use watering patterns of prior users who had occasionally
    suspended calls for water on harvesting days. The court
    reasoned that even if NFWF was
    limited to the historical use amount at any
    given time, it is likely to call for that amount
    on every day during the irrigation season,
    whereas its predecessors-in-interest did not in
    practice call for water during harvests and
    certain other periods, so the overall effect of
    the change will likely be to reduce the amount
    of water available for storage.
    The Decree court found that, although NFWF had
    properly limited program water to the consumptive use
    portion of its flow on a per second basis, NFWF would
    continuously call for its claims to be serviced, and thus would
    consume more water per season as compared to its
    predecessors-in-interest. The court explained:
    A limit on the rate of consumption per second
    during days of use does not suffice to satisfy
    the no injury rule if the total amount of
    consumption per year is nevertheless
    increased. Where NFWF will in practice
    consume water at the same rate as its
    predecessors-in-interest but on more days
    throughout the year, its greater number of
    days of consumption per year could result in
    increased consumption per year (and therefore
    less available storage water available for
    junior users). . . . [T]he no injury rule
    32 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    prohibits NFWF from consuming more water
    per second or per year than its predecessors-
    in-interest.
    The court remanded to the Nevada State Engineer to
    determine the average number of days per year that each of
    NFWF’s predecessors-in-interest historically called on their
    respective claims and to limit approval of the change
    application accordingly.
    As to the California Control Board’s ruling concerning
    changes to WRID’s storage rights, the Decree court found
    that changes to such rights must also be limited to the
    consumptive use portion of the rights. In this regard, the
    court held that the Farmers’ rights are injured where a change
    application effectively reduces the amount of stored water
    available to the users of those stored water rights. The
    California Control Board had determined that because the
    amount of storage water in the change would be limited to
    water that would have otherwise been consumed or stored by
    WRID, no injury would occur. The Decree court rejected this
    finding, and remanded for the same historical consumptive
    use calculations it had required with regard to the Nevada
    State Engineer’s ruling. Specifically, the Decree court set out
    a four-part procedure requiring the California Control Board
    to: (1) identify each separate “piece” of program water
    temporarily sold to WRID; (2) multiply those pieces by the
    respective portions of those pieces historically attributable to
    consumptive use; (3) calculate the sum of the consumptive
    use pieces; and (4) limit the change applications accordingly.
    The Decree court also rejected both the Nevada and
    California change applications on the grounds that in-stream
    delivery of program water to Walker Lake would violate the
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 33
    Decree’s export restriction, which prohibits delivering water
    “outside of the basin of the Walker River.” The court found
    that the “basin” comprises only agricultural lands and waters
    named in the Decree. The court concluded, however, that
    despite this, NFWF could still effectively send water to the
    Lake by simply sending it to the most terminal point of the
    River.
    These appeals followed. Appellants are NFWF, WRID,
    the Nevada State Engineer, the Nevada Department of
    Wildlife, Mineral County, and the Walker Lake Working
    Group. Appellees are the Water Commissioners and the
    Farmers. The United States and the California Control Board
    appear as amici.
    II. JURISDICTION, CHOICE OF LAW, AND
    STANDARD OF REVIEW
    A. Jurisdiction
    The Water Commissioners argue that, because the Decree
    court merely remanded the change applications, did not fully
    adjudicate the issues, and did not intend that its order be its
    final act in the matter, we lack jurisdiction under 28 U.S.C.
    § 1291. Remand orders do not generally constitute
    appealable “final decisions” under 28 U.S.C. § 1291. Alsea
    Valley All. v. Dep’t of Commerce, 
    358 F.3d 1181
    , 1184 (9th
    Cir. 2004); see also Dig. Equip. Corp. v. Desktop Direct, Inc.,
    
    511 U.S. 863
    , 867 (1994).
    But a remand order may be considered final where
    “(1) the district court conclusively resolves a separable legal
    issue, (2) the remand order forces the agency to apply a
    potentially erroneous rule which may result in a wasted
    34 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    proceeding, and (3) review would, as a practical matter, be
    foreclosed if an immediate appeal were unavailable.”
    Collord v. U.S. Dep’t of the Interior, 
    154 F.3d 933
    , 935 (9th
    Cir. 1998). These are not “strict prerequisites,” but merely
    “considerations.” Sierra Forest Legacy v. Sherman, 
    646 F.3d 1161
    , 1175 (9th Cir. 2011).
    As to the first Collord consideration, the district court
    resolved both questions at issue here: whether an injury can
    accrue on these facts under the Walker River Decree, and
    whether Walker Lake is “outside of the basin.” As to the
    second Collord consideration, the Nevada State Engineer and
    the California Control Board would be compelled to apply the
    district court’s injury standard, which could as a practical
    matter upset property rights elsewhere in the Walker River
    Basin. The State Engineer explains that such a remand would
    involve “a wasted proceeding [and] an unnecessary burden to
    the State of Nevada’s resources, and force the [ ] Engineer to
    apply the district court’s erroneous interpretation of Nevada
    water law.” The State Engineer’s concerns are credible: the
    remand order calls for a type of historical calculation that
    would possibly require developing new methodologies for
    measuring consumptive use. The third Collord consideration
    is met where the agency is a party to the appeal. 
    Alsea, 358 F.3d at 1184
    (9th Cir. 2004). Otherwise, agencies “face
    the unique prospect of being deprived of review altogether.”
    
    Id. The third
    consideration is met here, as the Nevada State
    Engineer appears as a party in these proceedings as
    Respondent-Appellant. Although the California Control
    Board is not a party to this appeal, it appears here as an
    amicus and has fully briefed the issues.
    Beyond the Collord test, remand orders are sufficiently
    “final” under § 1291, where the relief sought by appellants
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 35
    cannot possibly be achieved through the district court’s
    directions. Sierra 
    Forest, 646 F.3d at 1174
    . Such
    “meaningless remand[s]” are anathema to judicial economy.
    Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala, 
    80 F.3d 379
    ,
    384 (9th Cir. 1996). In the absence of appellate review, the
    Nevada State Engineer and California Control Board may be
    unable to grant any change applications that request
    delivering water to Walker Lake, which the district court held
    to be outside of the basin.
    The remand order is sufficiently final for our review
    under 28 U.S.C. § 1291.
    B. Choice of Law
    The Water Commissioners ask us to apply federal water
    law. But there is no federal water law. Fundamental
    principles of federalism vest control of water rights in the
    states. See California v. United States, 
    438 U.S. 645
    , 677–79
    (1978); United States v. Alpine Land & Reservoir Co.,
    503 F.Supp 877, 885 (D. Nev. 1980). Decreed rights are
    administered under applicable state law. See United States v.
    Walker River Irrigation Dist., 
    11 F. Supp. 158
    , 165–68 (D.
    Nev. 1935) (“The rights of the government, in its use of the
    waters of the Walker river and its tributaries for purposes of
    irrigation, like the rights of all other diverters in the Walker
    River basin, are to be adjudged, measured, and administered
    in accordance with the laws of appropriation as established by
    the state of Nevada.”); see also Montana v. Wyoming,
    
    563 U.S. 386
    , 377 n.5, 378 (2011); California Oregon Power
    Co. v. Beaver Portland Cement Co., 
    295 U.S. 142
    , 163–64
    n.2 (1935); United States v. Alpine Land & Reservoir Co.,
    
    697 F.2d 851
    , 858 (9th Cir. 1983) (“[S]tate law will control
    the distribution of water rights to the extent that there is no
    36 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    preempting federal directive.”). Under the Decree, change
    applications are to be treated “in the manner provided by
    law.” The Decree presupposes state law in its entirety as to
    both substance and procedure. See United States v. Orr
    Water Ditch Co., 
    914 F.2d 1302
    , 1307–08 (9th Cir. 1990).
    C. Standard of Review
    1. Review of the Decree Court
    We review the Decree court’s legal conclusions and
    interpretations of the Decree de novo. United States v. Orr
    Water Ditch Co., 
    256 F.3d 935
    , 945 (9th Cir. 2001); Orr
    Water 
    Ditch, 914 F.2d at 1307
    . Our review of mixed
    questions of law and fact depends on the nature of the issue.
    “A mixed question asks whether ‘the historical facts . . .
    satisfy the statutory standard, or to put it another way,
    whether the rule of law as applied to the established facts is
    or is not violated.’” U.S. Bank Nat’l Ass’n v. Village at
    Lakeridge, LLC, 583 U.S. ____ (2018) (slip op., at 7)
    (quoting Pullman-Standard v. Swint, 
    456 U.S. 273
    , 289, n. 19
    (1982)). “When an ‘issue falls somewhere between a pristine
    legal standard and a simple historical fact,’ the standard of
    review often reflects which ‘judicial actor is better
    positioned’ to make the decision.” 
    Id., slip op.
    at 8 (quoting
    Miller v. Fenton, 
    474 U.S. 104
    , 114 (1985)). In reviewing
    change application to water rights, the Decree court’s
    activities are primarily legal—the evidence and facts
    underlying the change applications are elicited and marshaled
    in proceedings before the respective state agencies. The
    Decree court then reviews those agencies’ rulings with at
    least some deference to questions of fact and law, as
    discussed below. We will review de novo the Decree court’s
    review of the state agencies. Where the Decree court has
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 37
    entered its own findings of fact, we review those for clear
    error.
    2. Deference to State Agencies
    The parties dispute whether and to what degree the
    Decree court was required to defer to the state agency
    findings and rulings in their adjudication of change
    applications. As we have previously explained, the Decree
    court applies state water law. When it does so, the Decree
    court must afford the same level of deference state courts
    would afford the state agencies. See Orr Water 
    Ditch, 914 F.2d at 1307
    –08.
    Under Nevada law, the “decision of the State Engineer is
    prima facie correct, and the burden of proof is upon the party
    attacking the decision.” NEV. REV. STAT. § 533.450(10); see
    State Eng’r v. Morris, 
    819 P.2d 203
    , 205 (Nev. 1991)
    (“[D]ecisions of the State Engineer are presumed to be
    correct upon judicial review.”). With respect to findings of
    fact, the Nevada Supreme Court has stated that “neither the
    district court nor this court will substitute its judgment for
    that of the State Engineer: we will not pass upon the
    credibility of the witnesses nor reweigh the evidence, but
    limit ourselves to a determination of whether substantial
    evidence in the record supports the State Engineer’s
    decision.” 
    Id. (citation omitted).
    As to matters of law, the
    State Engineer’s interpretation of legal questions and Nevada
    statutes is “persuasive,” but not controlling. Orr Water 
    Ditch, 256 F.3d at 945
    ; State v. Morros, 
    766 P.2d 263
    , 266 (Nev.
    1988).
    California courts also exercise deferential review and
    must consider:
    38 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    (1) whether the [Board] has proceeded
    without, or in excess of jurisdiction;
    (2) whether there was a fair trial; and
    (3) whether there was any prejudicial abuse of
    discretion. Abuse of discretion is established
    if the [Board] has not proceeded in the manner
    required by law, the order or decision is not
    supported by the findings, or the findings are
    not supported by the evidence.
    CAL. CIV. PROC. CODE § 1094.5(b); see State Water Res.
    Control Bd. Cases, 
    39 Cal. Rptr. 3d 189
    , 226 (Cal. Ct. App.
    2006). A court “review[s] the record to determine whether
    the [Board’s] factual findings are supported by substantial
    evidence, resolving all evidentiary conflicts and drawing all
    legitimate and reasonable inferences in favor of the [Board’s]
    decision.” Millview Cty. Water Dist. v. State Water Res.
    Control Bd., 
    177 Cal. Rptr. 3d 735
    , 746 (Cal. Ct. App. 2014)
    (citation omitted). Like Nevada courts, California courts
    review the Board’s legal conclusions independently, “giving
    deference to the determination of the agency appropriate to
    the circumstances of the agency action.” Phelps v. State
    Water Res. Control Bd., 
    68 Cal. Rptr. 3d 350
    , 360 (Cal. Ct.
    App. 2007) (emphasis in original) (citation omitted).
    The Farmers and Water Commissioners argue that
    because the Decree court appointed the California Control
    Board as Special Master under FED. R. CIV. P. 53(b) in 1990,
    the Decree court may review all aspects of the Board’s
    rulings de novo and that the Decree court’s 1996
    Adminstrative Rules and Regulations so provide. See FED. R.
    CIV. P. 53(f)(3)–(4); 1996 Administrative Rules &
    Regulations § 7.9; see also 
    id. § 7.10
    (“In reviewing any
    report of the Water Resources Control Board, the court . . .
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 39
    shall not be limited by the ‘clearly erroneous’ standard.”). As
    we have previously explained, supra note 11, the Decree
    court appointed the California Control Board as a Special
    Master over pre-1914 appropriative rights, over which the
    Board lacks statutory authority. WRID’s storage rights did
    not arise until the construction of the reservoirs in 1919 and
    1921, and thus the California Control Board had authority to
    rule on WRID’s change applications. Here, the Board issued
    its Order and Modified Order in its role as state agency and
    submitted a report to the Decree court in its role as Special
    Master. Insofar as the California Control Board exercised
    lawful agency authority under California law in adjudicating
    change applications to WRID’s post-1914 water rights, the
    Decree court should have afforded the Board the same degree
    of deference that California courts do.12
    III. ANALYSIS
    Appellants claim two errors. First, they argue that
    NFWF’s promise to limit its in-stream use to the historic
    consumptive use portion of its claims precludes any
    possibility of injury to other rightsholders. Second, they
    argue that the court erred by interpreting the Decree’s export
    restriction as a prohibition on delivering water to the Lake.
    We address each in turn.
    A. Injury
    Article X of the Decree states:
    12
    On remand, the Decree court may wish to consider whether the
    1996 Administrative Rules and Regulations need to be clarified to
    conform to this opinion and to Nevada and California law.
    40 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    Any of the said parties shall be entitled to
    change the manner, means, place or purpose
    of use or the point of diversion of the said
    waters or any thereof in the manner provided
    by law, so far as they may do so without
    injury to the rights of other parties hereto, as
    the same are fixed hereby.
    This “no-injury” provision in the Decree recognizes the duty
    of each appropriator to manage its water use so as to avoid
    injury to other appropriators, including junior appropriators.
    The Nevada State Engineer and the California Control Board
    both concluded that because NFWF agreed to limit program
    water to the consumptive use portion of the claims, there is no
    material change in its usage and no other rightsholders will be
    injured. The Decree court rejected this conclusion. We
    conclude that the Decree court failed to defer to the findings
    and conclusions of the state agencies. To the extent the
    Decree court entered its own findings, we conclude that those
    findings are clear error.
    1. Principles
    Almost all states employ one of three water rights
    regimes: a regime of riparian rights common in the East, a
    regime of rights acquired by prior appropriation common in
    the West, or a hybrid system such as in California. While
    riparian rights inhere in the land appurtenant to the waterway,
    vary in quantity based on flow, remain vested even if unused,
    and are subject to reasonable use, appropriative rights are
    untethered from land ownership, are acquired and maintained
    by active beneficial diversion of water, provide for a fixed
    flow of water, and are tiered as senior and junior rights based
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 41
    on chronological claim priority. As the Supreme Court
    explained,
    The right to water by prior appropriation
    . . . is limited in every case, in quantity and
    quality, by the uses for which the
    appropriation is made. . . . The appropriation
    does not confer such an absolute right to the
    body of the water diverted that the owner can
    allow it, after its diversion, to run to waste and
    prevent others from using it for mining or
    other legitimate purposes.
    ...
    What diminution of quantity . . . will
    constitute an invasion of the rights of the first
    appropriator will depend upon the special
    circumstances of each case, considered with
    reference to the uses to which the water is
    applied.
    Atchison v. Peterson, 
    87 U.S. 507
    , 514–15 (1874). See also
    Colorado v. New Mexico, 
    459 U.S. 176
    , 179 n.4 (1982).
    In Nevada, as elsewhere, a water right is the “right to
    divert water . . . for beneficial use from a natural spring or
    stream.” Application of Filippini, 
    202 P.2d 535
    , 537 (Nev.
    1949). Perfecting and maintaining appropriative water rights
    require an act of diversion—or, as here, an act of so-called
    non-diversion—and beneficial use of the water. See, e.g.,
    Prosole v. Steamboat Canal Co., 
    140 P. 720
    , 722 (Nev. 1914)
    (superseded by statute on other grounds); Strait v. Brown,
    
    16 Nev. 317
    , 324 (1881); Lobdell v. Simpson, 
    2 Nev. 274
    , 279
    42 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    (1866); see also Nebraska v. Wyoming, 
    325 U.S. 589
    , 614
    (1945) (“The water right is acquired by perfecting an
    appropriation, i.e., by an actual diversion followed by an
    application within a reasonable time of the water to a
    beneficial use.”). As with senior and subordinated debt, a
    senior appropriative right, i.e., the right with an earlier
    priority date, is superior to all junior rights. When there is
    insufficient water to fill all claims, the senior right is satisfied
    before others. DAVID H. GETCHES, WATER LAW 77–80 (4th
    ed. 2009).
    The no-injury rule of Article X of the Decree is a
    codification of a basic principle of prior appropriation:
    [T]he no-injury rule prevents appropriators
    from making certain water-right changes that
    would harm other appropriators . . . . Because
    each new appropriator is entitled to the stream
    as it exists when he finds it, the general rule is
    that “if a change in these conditions is made
    by [a senior] appropriator, which interferes
    with the flow of the water to the material
    injury of [the junior appropriator’s] rights, he
    may justly complain.”
    
    Montana, 563 U.S. at 378
    (alterations in original) (quoting
    2 C. Kinney, LAW OF IRRIGATION AND WATER RIGHTS § 803,
    at 1404 (2d ed. 1912)); see also Wyoming v. Colorado,
    
    298 U.S. 573
    , 584 (1936) (“[T]he use of the water may be
    changed from the irrigation of one tract to the irrigation of
    another, if the change does not injure other appropriators.”).
    Alleged injuries are analyzed on a case-by-case basis with a
    primary focus on the particular equities at issue. 
    Atchison, 87 U.S. at 514
    –15.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 43
    Nevada has codified its no-injury rule. NEV. REV. STAT.
    § 533.370 (requiring an injury analysis in change application
    adjudications to determine whether “the proposed use or
    change conflicts with [other] existing water rights” and
    prohibiting changes that will “adversely affect the cost of
    water for other holders of water rights in the district”). In
    determining whether a proposed change application causes
    injury,
    [t]he State Engineer may consider the
    consumptive use of a water right and the
    consumptive use of a proposed beneficial use
    of water in determining whether a proposed
    change in the place of diversion, manner of
    use or place of use [causes injury]. The
    provisions of this section [m]ust not be
    applied by the State Engineer in a manner that
    is inconsistent with any applicable federal or
    state decree concerning consumptive use.
    NEV. REV. STAT. § 533.3703(1). Cf. Pyramid Lake Paiute
    Tribe of Indians v. Nev. Dep’t of Wildlife, 
    724 F.3d 1181
    ,
    1185 n.4 (9th Cir. 2013) (“[C]hange in manner of use
    applications from use for irrigation to any other use . . . shall
    be allowed only for the net consumptive use of the water as
    determined by this Decree.”) (quoting Administrative
    Provision VII of Alpine Decree).13
    13
    The Orr Ditch decree court’s definition of injury is also consistent
    with these principles:
    An “injury” to a Decreed water right is not shown
    merely by establishing a shortage of water because an
    owner of a water right can be shorted water without
    violating the Orr Ditch Decree. Similarly, alterations of
    44 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    California law similarly recognizes the no-injury rule and
    takes into account the effect of consumptive use. The
    California Control Board “shall approve a temporary change
    if it determines that a preponderance of the evidence shows”
    that the “proposed temporary change would not injure any
    legal user of the water” or “unreasonably affect fish, wildlife,
    or other instream beneficial uses.” CAL. WATER CODE
    § 1727(b); see also CAL. WATER CODE § 1726(e) (“[T]he
    proposed change must involve only the amount of water that
    would have been consumptively used or stored in the absence
    of the temporary change.”). “[I]n determining whether the
    petitioned changes to the licenses of the irrigation districts
    would cause ‘substantial injury’ to or would ‘unreasonably
    affect’ riparian and appropriative users in the [water at
    issue],” the California Control Board should focus “on the
    effect of those changes on the rights of those users.” State
    Water Res. Control Bd. 
    Cases, 39 Cal. Rptr. 3d at 243
    . “[A]
    person who claims injury from a change in the terms of a
    permit to appropriate water must show the change will
    interfere with his or her right to use the water, whatever the
    source of that right may be.” 
    Id. at 293.
    California law
    protects the continuation of a river’s natural flow against a
    historical flows do not, of themselves, establish injury.
    Rather, an injury occurs when the owner receives less
    water than the amount to which the owner is legally
    entitled, which determination requires consideration not
    only of the amount of the water duty, but also its
    priority, and certain other conditions affecting the river
    system.
    Orr Water Ditch, 
    2014 WL 4832052
    , at *7 (D. Nev. Sept. 30, 2014); see
    also United States v. Gila Valley Irrigation Dist., 
    859 F.3d 789
    , 801 (9th
    Cir. 2017) (“Possible injury should be analyzed by comparing the impact
    of a proposed change against a baseline of existing conditions.”) (citation
    and quotation omitted).
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 45
    change in use by another appropriator, but does not assure the
    release of stored water, as such water constitutes an artificial
    supply and flow. 
    Stevens, 90 P.2d at 60
    –61; see also State
    Water Res. Control Bd. 
    Cases, 39 Cal. Rptr. 3d at 238
    –46.
    As we have previously explained, when water is
    withdrawn from a river system for irrigation, some of that
    water will return to the system through drainage. The
    consumptive use portion of a water right reflects the amount
    of water that a farmer’s crops actually consume.14 The rest of
    the water, the non-consumptive use portion, drains as runoff
    to the river or otherwise remains in the basin’s
    hydroecosystem for subsequent use by downstream users.
    See Alpine Land & Reservoir 
    Co., 697 F.2d at 857
    n.4.
    Consumptive use is not a measure of how farmers call for
    water, but rather the “quantity of water actually consumed by
    crop growth.” Pyramid Lake Paiute Tribe of 
    Indians, 724 F.3d at 1185
    . When rightsholders change the purpose or
    place of use of a water right, they must consider how that
    change will affect fellow appropriators. Suddenly drawing
    more water from the river for a new and unannounced
    purpose can diminish one’s downstream neighbor’s rights to
    the runoff. The nonconsumptive portion of an appropriation
    must be considered, because a junior rightsholder “is entitled
    to the stream as it exists when he finds it.” 
    Montana, 563 U.S. at 378
    (quoting 2 KINNEY § 803, at 1404); see
    GETCHES, WATER LAW at 178.
    14
    The U.S. Geological Survey (USGS) defines consumptive use as
    “the part of water withdrawn that is evaporated, transpired, incorporated
    into products or crops, consumed by humans or livestock, or otherwise not
    available for immediate use.” USGS, WATER USE TERMINOLOGY,
    https://water.usgs.gov/watuse/wuglossary.html.
    46 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    2. Application
    When NFWF acquired decreed appropriative rights with
    priorities from 1874 to 1906, it acquired the right to a flow of
    7.745 cfs. But NFWF’s prior appropriators did not consume
    all 7.745 cfs. Their consumptive use was only 4.122 cfs, the
    remaining 3.623 cfs finding its way back to the Walker River
    as runoff. NFWF agreed, consistent with the historic use of
    the prior rightsholders, to divide its right into a consumptive
    use portion of 4.122 cfs to be used as program water, and the
    remaining non-consumptive use portion of 3.623 cfs to be
    used to mitigate hydrological system loss.
    The Nevada State Engineer and the California Control
    Board approved NFWF’s and WRID’s proposed change
    applications, but the Decree court refused to approve the
    changes. According to the court, NFWF’s changes would
    “injure other users with decreed rights.” The court
    acknowledged that NFWF would take only “the former
    consumptive use amount,” but found that NFWF was “likely
    to call for that amount on every day during the irrigation
    season, whereas its predecessors-in-interest did not in
    practice call for water during harvests and certain other
    periods.” Specifically, the court was referring to the
    historical harvest days identified in the evidence submitted to
    the Nevada State Engineer, indicating a total of four alfalfa
    harvest days in the Mason Valley beginning around June 3
    each year. In the Decree court’s view, because “the no injury
    rule prohibits NFWF from consuming more water per second
    or per year than its predecessors-in-interest did,” “the overall
    effect of the change will likely be to reduce the amount of
    water available for storage.” The Decree court was
    concerned that, although NFWF’s flow rate was consistent
    with historic usage, the total amount of water to be taken by
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 47
    NFWF would exceed the water historically called for by its
    predecessors-in-interest:
    The Court finds that under the no injury rule,
    the changes must be limited not only to the
    prior consumptive use per second, but also to
    the prior total amount of consumptive use per
    year. A limit on the rate of consumption per
    second during days of use does not suffice to
    satisfy the no injury rule if the total amount of
    consumption per year is nevertheless
    increased. Where NFWF will in practice
    consume water at the same rate as its
    predecessors-in-interest but on more days
    throughout the years, its greater number of
    days of consumption per year results in
    increased consumption per year (and therefore
    less available storage water available for
    junior users).
    Water can be calculated as a flow or as a volume.
    Appropriative flow rights under the Decree are calculated in
    cubic-feet per second (cfs), while annual consumptive use is
    calculated as a volume in acre-feet per acre per irrigation
    season (afa). See BECK & KELLEY, 1-1 WATERS AND WATER
    RIGHTS § 1.02 (2017). The Net Irrigation Water Requirement
    (NIWR) of alfalfa in the Mason Valley is 3.1 afa. See J.L.
    Huntington & R.G. Allen, Nevada Department of
    Conservation & Natural Resources, EVAPOTRANSPIRATION
    AND NET IRRIGATION WATER REQUIREMENTS FOR NEVADA
    215 (2010) (“NIWR Report”). The NIWR is synonymous
    with consumptive use per year. This figure means that over
    the course of an irrigation season, one acre of alfalfa in the
    48 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    Mason Valley will consume 3.1 acre-feet of irrigation
    water—anything beyond that is runoff.15
    NFWF’s stipulations contained three provisions pertinent
    here. First, NFWF stipulated to an annual consumptive use
    volume of 3.1 acre-feet of water per acre (afa), which is the
    total consumptive requirement for an acre of alfalfa, the crop
    grown by NFWF’s predecessors-in-interest. Second, out of
    NFWF’s total rights to 7.745 cfs, only 4.122 cfs—the
    consumptive use portion of the flow—would be used as
    program water. Third, the remaining portion of its
    rights—the non-consumptive use portion of
    3.623 cfs—would be at the Water Commissioners’ disposal
    to mitigate any possible injury to other water rights, including
    the storage rights belonging to WRID.
    The Nevada State Engineer received testimony on the
    consumptive use as measured per second (cfs) and annually
    (afa). And, specifically, that testimony addressed whether
    NFWF’s proposed use accounted for the harvest days of its
    predecessors-in-interest. The Nevada State Engineer credited
    the testimony of hydrologist Dr. Greg Pohll, who stated that
    the 3.1 afa in the NIWR included both “variable start dates
    for irrigation in Mason and Smith Valleys, and individual
    simulated cuttings as part of the calculations.” Similarly, the
    Engineer heard from David Yardis, Director of the Walker
    15
    The NIWR of 3.1 for alfalfa in the Mason Valley was calculated
    using evapotranspiration parameters such as crop height, radiation, soil
    heat flux densities, temperatures, wind speeds, saturation vapor pressures,
    pressure-temperature curves, precipitation, other atmospheric and
    psychrometric variables, as well as simulated green-ups and harvest
    cuttings. NIWR Report at 3–9, 27, 44–50. The NIWR of 3.1 afa was
    derived from mean evapotranspiration values from 1965–2007. 
    Id. at 68,
    215.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 49
    Basin Restoration Program, who “reiterated Dr. Pohll’s
    testimony that the consumption figures of 3.10 acre-feet per
    acre accounted for variable weather situations,
    [evapotranspiration], and regular cuttings.”16 The Nevada
    State Engineer found that “Dr. Pohll’s interpretation of the
    methodology of the NIWR is correct, and that the NIWR
    consumptive use figure of 3.10 acre-feet per acre in the
    Walker River Basin for alfalfa takes into account a variable
    irrigation start date and multiple simulated cuttings during the
    irrigation season.” The Nevada State Engineer found that the
    Commissioners’ and the Farmers’ arguments “concerning
    impacts to new land storage rights are addressed within the
    calculation of the 3.10 acre-feet per acre consumptive use
    amount.”
    The Decree court failed to defer to the findings of the
    Nevada Engineer, whose findings are presumed correct. NEV.
    16
    The NIWR itself accounts for variable irrigation start dates:
    Defining the length of the growing season, time to
    effective full cover, and harvest dates are all important
    aspects of estimating [actual evapotranspiration] and
    the NIWR. . . .
    Calibration of [Cumulative Growing Degree Days],
    [the thirty-day moving average of mean daily air
    temperature], percent time from effective full cover to
    harvest days, and days after effective full cover to
    harvest, for simulating greenup and harvest dates was
    ultimately accomplished by minimizing the error in
    simulated vs. documented/typical greenup, planting,
    and harvest dates outlined in Table 4, which lists the
    results and specific information used in the calibration.
    NIWR Report at 42–44.
    50 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    REV. STAT. § 533.450(9)–(10); Alpine Land & Reservoir 
    Co., 919 F. Supp. at 1474
    ; 
    Morris, 819 P.2d at 205
    . Once we
    consider the record before the Nevada State Engineer, the
    Decree court’s concerns are unfounded, and the Nevada State
    Engineer properly found that “a transfer [to NFWF] limited
    to the consumption portion . . . would avoid conflict and
    injury to other existing water rights.” Because these findings
    are supported by substantial evidence and the State Engineer
    applied the correct legal rule, the Engineer’s conclusions are
    entitled to deference. It was error for the Decree court to
    reject those conclusions.
    To the extent the Decree court made its own findings of
    fact, those findings are clearly erroneous. The Decree court
    found that there was a difference between NFWF’s proposed
    per second consumption rate (cfs) and its annual consumptive
    volume (afa). The Nevada State Engineer concluded there
    was not, and the math bears this out. NFWF’s stipulated flow
    of 4.122 cfs, if called for continuously over the irrigation
    season, does not exceed the annual consumptive use volume
    of 3.1 afa. They are identical. We convert the stipulated flow
    and consumptive use volume into total acre-feet of water per
    irrigation season, and compare. To determine the total
    volume of water delivered to Walker Lake if the stipulated cfs
    is continuously called for, we multiply the stipulated flow
    (4.122 cfs) by seconds in a day (86,400 s), and then by days
    in the irrigation season (245 d),17 which produces
    17
    The irrigation season is 245 days from March 1 to October 31. See
    Decree Art. XVI, amended (1940); Walker River Irrigation District,
    RULES AND REGULATIONS GOVERNING THE DISTRIBUTION AND USE OF
    WATER § 9.1, http://www.wrid.us/WRID/rulesandregs.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 51
    87,254,496 cubic-feet or 2,003.091 acre-feet.18 To determine
    the total volume of irrigated water previously consumed per
    irrigation season in acre-feet, we multiply the total acreage of
    farmland whose decreed claims NFWF acquired
    (646.160 acres), by the consumptive use by each acre
    (3.1 afa). That produces a volume of 2,003.096 acre-feet of
    water. If NFWF were to call for a continuous flow of its
    maximum diversion rate of 4.122 cfs during the entire
    irrigation season, the total amount of program water will be
    0.005 acre-feet less than that consumptively used by its
    predecessors-in-interest, which appears to be a rounding
    error. Whether we calculate the program water as a rate (cfs)
    or as a volume (afa), the quantities are the same. The Decree
    court erred in when it concluded that the Nevada State
    Engineer had not accounted for the harvest days.
    The Decree court’s rejection of the California Control
    Board’s ruling was also error. WRID holds combined
    licenses to store between 71,310 and 76,060 acre-feet of
    water annually. It requested permission to use up to
    25,000 acre-feet of water stored at the Bridgeport and Topaz
    Reservoirs for in-stream use at Walker Lake. The California
    Control Board approved the temporary permit, finding that
    the amount of storage water in the transfer would be limited
    to water that would otherwise be consumed or stored by
    WRID, and thus no injury would occur. The Board found
    that the Farmers objecting to WRID’s proposed change did
    not have “any right under contract or otherwise, to the stored
    water,” and thus could not be injured by the proposed change
    in use. According to the Board, stored water is considered an
    18
    One acre-foot equals 43,560 cubic-feet. 87,254,496 divided by
    43,560 equals 2,003.091.
    52 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    artificial flow, and a downstream user has no right to the
    discharge of stored water.
    The Decree court rejected the Board’s conclusions and
    substituted its own conclusion that WRID’s temporary permit
    to release stored water would injure “junior storage right[s]”
    because WRID was “reduc[ing] stored water that would
    otherwise be available to a user with storage rights.” The
    court concluded that WRID’s proposal thus ran afoul of the
    “no injury rule.” The court’s reliance on injury to “junior
    storage right holders” is misplaced, both as a matter of the
    Decree and California law. The Decree’s “no injury” rule
    refers to “injury to the rights of other parties hereto, as the
    same are fixed thereby.” Art. X (emphasis added). The no
    injury rule does not extend to persons who do not have
    decreed rights. Under Section VIII of the Decree, WRID is
    declared to be “the owner of the flow and use of the flood
    waters of East Walker River and its tributaries for storage in
    Bridgeport Reservoir”; it likewise is the owner of the flood
    waters of the West Walker River for storage in the Topaz
    Reservoir. Any permits issued to WRID by the California
    Control Board are “subject to vested prior rights” and stored
    water must be distributed “to the lands in the District entitled
    thereto, in accordance with their respective rights.”
    Accordingly, the Decree gives WRID distribution rights over
    the stored water, which it must exercise consistent with the
    Decree and Nevada law.              The Decree recognizes
    appropriative and storage rights in numerous private parties
    throughout the Walker River Basin, but it gives WRID alone
    the right to store and distribute the waters of Topaz and
    Bridgeport.
    California’s no injury rule is codified in various sections
    of California’s Water Code, each of which prohibits injury to
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 53
    a “legal user of water.” CAL. WATER CODE §§ 1701(b)(2),
    1725, 1727(b)(1) (emphasis added). But under California
    law, “appropriators have no right to water stored by the
    irrigation districts.” State Water Res. Control Bd. 
    Cases, 39 Cal. Rptr. 3d at 244
    . “When [ ] stored water is released to
    customers, it is not part of the river’s natural flow and does
    not count towards the appropriators current allocation of river
    water.” Id.; see also 
    Stevens, 9 P.2d at 61
    (“The producer of
    an artificial flow is for the most part under no obligation to
    lower claimants to continue to maintain it. . . . [L]ower users
    will not have acquired a right against him, either by
    appropriation or prescription, to continued augmentation of
    the natural volume of the stream”); Lindblom v. Round Valley
    Water Co., 
    173 P. 994
    , 997 (Cal. 1918) (holding that an
    appropriator “cannot require [a reservoir owner] to discharge
    any water into the stream during those months in which there
    would be no flow if no dam had ever been built.”).
    We know of no principle in California law that recognizes
    “storage rights” in a reservoir, outside of the reservoir owner.
    Insofar as the Farmers complaining here hold no decreed
    rights to the waters WRID is storing, they cannot claim any
    legal injury caused by changes to how and where WRID
    distributes flow to the rightsholders of decreed, appropriative
    rights. As the California Control Board explained “[i]t is not
    enough for a water user to show that it will receive less water
    as a result of the change. Instead, a water use claiming injury
    must demonstrate that it has a right to the greater amount of
    water claimed and that the proposed change will interfere
    with that right.” The Control Board found that “[n]one of the
    [objectors] have demonstrated any right, under contract or
    otherwise, to the stored water that will be injured by the
    proposed temporary change,” and that the “[l]andowners in
    [WRID] will continue to be allocated their portion of the
    54 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    stored water.” It thus concluded that “[o]nce the water is
    diverted to storage in a manner consistent with water right
    priorities, water stored in Topaz and Bridgeport Reservoirs is
    previously stored water to which the [objectors] have not
    demonstrated any legal interest.” In sum, the Control Board
    found that the proposed changes “would not injure any legal
    use of the water.” That finding is consistent with the Decree
    and in accord with California law, and it was error for the
    Decree court to refuse to approve the California Control
    Board’s Report approving WRID’s change application.
    B. The Basin
    Under Article XIV of the Decree, “no water shall be sold
    or delivered outside of the basin of the Walker River.” The
    Water Commissioners argue, and the Decree court held, that
    delivering river water to Walker Lake would violate this
    export restriction, because the Lake is “outside of the basin of
    the Walker River.” The court’s interpretation rested on
    several grounds: that there are no decreed rights to
    appropriate water from the Lake; that the Decree does not
    mention the Lake, but rather mentions other lakes as
    tributaries to the River; and that the Decree concerns
    appropriative rights only to the River and its tributaries, but
    not the Lake. On this basis the court held that “basin,” as
    used in the export restriction, unambiguously refers only to
    those agricultural lands that beneficially use the River’s
    waters and those waters that are mentioned by name in the
    Decree, but not the Lake itself. By contrast, both the Nevada
    State Engineer and the California Control Board found that
    Walker Lake was within the Walker River Basin.
    The Walker River Decree is a partially stipulated decree,
    and so we interpret its provisions in a manner consistent with
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 55
    the entirety of the decree, and without the aid of extrinsic
    materials unless the provisions are ambiguous. Wackerman
    Dairy, Inc. v. Wilson, 
    7 F.3d 891
    , 897 n.13 (9th Cir. 1993).
    Provisions are ambiguous where they are subject to two or
    more reasonable interpretations. See Frei ex rel. Frei v.
    Goodsell, 
    305 P.3d 70
    , 73–74 (Nev. 2013); State v. Cont’l
    Ins. Co., 
    281 P.3d 1000
    , 1004 (Cal. 2012).
    The district court correctly noted that the export
    restriction ensures that the basin’s waters remain in the basin
    for beneficial use by appropriative rightsholders. Such a
    protectionist measure appears elsewhere in water law as a
    mechanism to preserve water resources for local use. See,
    e.g., COLO. REV. STAT. § 37-81-101 (prohibiting the export
    of river waters outside Colorado to ensure “adequate supplies
    of water necessary to insure the continued health, welfare,
    and safety of all its citizens”).
    We do not think there is any ambiguity in the phrase
    “basin of the Walker River.” Consider the plain hydrological,
    geomorphic, geographic, and everyday meaning of the word
    “basin.” A “basin,” as we commonly use that word, is simply
    the geographic area that is coextensive with a river system’s
    hydrological drainage. The Decree court itself used the term
    “basin” according to this plain hydrological and geographic
    meaning, when it opened its Order by observing that the
    Walker River Basin is approximately 4,050 square miles
    “from its origins in the southwestern elevations of the Sierra
    Nevada Mountains to its terminus, Walker Lake.”
    Even if the term “basin” were ambiguous, interested
    extrinsic sources support the interpretation urged by NFWF
    and found by the Nevada State Engineer and the California
    Control Board. The State of Nevada refers to the Walker
    56 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    River Basin, including Walker Lake, as “Hydrographic
    Region No. 9.”19 The USGS calls it “Accounting Unit
    160503,” composed of hydrological sub-units East Walker,
    West Walker, Walker, and Walker Lake.20 And the USGS’s
    Nevada Water Science Center places the Lake at “the lowest
    point in the basin.”21 Additionally, the Nevada Supreme
    Court views the Lake as part of the Walker River system and
    subject to the Decree court’s jurisdiction.22 The Decree court
    itself once noted that the Basin includes “sub-basin[] . . .
    110B,” which the State of Nevada titled the “Lake Subarea.”23
    Congress understood no differently when it enacted the
    legislation to save Walker Lake under the aptly titled Walker
    Basin Restoration Program. Pub. L. No. 111-85, §§ 207–08,
    123 Stat. 2845, 2858–60 (2009).
    19
    See Nev. Dep’t of Conservation & Nat’l Res., DESIGNATED
    GROUNDWATER BASINS OF NEVADA (2017),
    http://water.nv.gov/mapping/maps/designated_basinmap.pdf.
    20
    Paul R. Seaber, et al., USGS, HYDROLOGIC UNIT MAPS 54 (1994),
    https://pubs.usgs.gov/wsp/wsp2294/pdf/wsp_2294.pdf; 
    id., Plate 1,
    https://pubs.usgs.gov/wsp/2294/plate-1.pdf.
    21
    Kip K. Allander, et al., USGS, United States Dep’t of the Int.,
    EVAPOTRANSPIRATION FROM THE LOWER WALKER RIVER BASIN, WEST-
    C E N T RAL N EVAD A , W ATER Y EARS 2005-07 5 ( 20 0 9) ,
    https://pubs.usgs.gov/sir/2009/5079/pdf/sir20095079.pdf.
    22
    Mineral 
    County, 20 P.3d at 805
    –06.
    23
    Compare United States v. Walker River Irr. Dist., 
    2002 WL 35634154
    , at *1 (D. Nev. Apr. 26, 2002), with Nev. Dep’t of Conservation
    & Nat’l Res., DESIGNATED GROUNDWATER BASINS OF NEVADA (2017),
    supra note 19.
    NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS 57
    The Commissioners point to a 1935 opinion of the Decree
    court, in which Judge St. Sure described his happy “tour of
    the Walker River basin” and referred to his visit to “the
    valleys, meadows, the Walker Indian Reservation, the storage
    reservoirs, a site of a proposed reservoir, and points of
    diversion of waters for irrigation,” but omitted any reference
    to the Lake. United States v. Walker River Irr. Dist., 11 F.
    Supp. 158, 162 (D. Nev. 1935). They also point to statements
    made by counsel in the 1930s, in which they mentioned the
    Basin, but not the Lake. We give little weight to these
    anecdotal statements. The Decree’s export restriction is not
    structured as an inclusionary list of those places to which
    water may be sent. That Walker Lake itself—an obvious and
    dominant physical feature in the Basin—was not mentioned
    by the court or counsel means little in light of the Decree’s
    text and purpose. The Commissioners’ interpretation flies in
    the face of history and logic and that ancient and simple
    maxim aqua currit et debet currere ut currere solebat ex jure
    naturae: water runs and ought to run as it is accustomed to
    run, according to the law of nature. Wholey v. Caldwell,
    
    41 P. 31
    , 32 (Cal. 1895); Lux v. Haggin, 
    4 P. 919
    , 920 (Cal.
    1884); 
    Lobdell, 2 Nev. at 276
    . We conclude that Walker
    Lake is part of the Walker River Basin. As a consequence,
    dedicating water from the Walker River to Walker Lake does
    not violate the Decree’s prohibition on delivering water
    “outside of the basin of the Walker River.”
    IV. CONCLUSION
    The judgment of the Decree court is reversed. We vacate
    the opinion below and remand with instructions to grant the
    Petition to Confirm Nevada State Engineer Ruling No. 6271
    of March 20, 2014, grant the Petition to Confirm California
    58 NEV. STATE ENG’R V. U.S. BD. OF WATER COMM’RS
    State Water Resources Control Board Report of May 29,
    2014, and modify the Decree accordingly as necessary.
    REVERSED and REMANDED.
    

Document Info

Docket Number: 15-16316

Citation Numbers: 890 F.3d 1134

Filed Date: 5/22/2018

Precedential Status: Precedential

Modified Date: 5/22/2018

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united-states-v-orr-water-ditch-company-and-state-of-nevada-sierra , 914 F.2d 1302 ( 1990 )

State v. Morros , 104 Nev. 709 ( 1988 )

Office of the State Engineer v. Morris , 107 Nev. 699 ( 1991 )

State Water Resources Control Board Cases , 136 Cal. App. 4th 674 ( 2006 )

Phelps v. State Water Resources Control Board , 157 Cal. App. 4th 89 ( 2007 )

Lindblom v. Round Valley Water Co. , 178 Cal. 450 ( 1918 )

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Natural Resources Defense Council v. Kempthorne , 621 F. Supp. 2d 954 ( 2009 )

Nebraska v. Wyoming , 66 S. Ct. 1 ( 1945 )

Wyoming v. Colorado , 56 S. Ct. 912 ( 1936 )

Atchison v. Peterson , 22 L. Ed. 414 ( 1874 )

Winters v. United States , 28 S. Ct. 207 ( 1908 )

Rickey Land & Cattle Co. v. Miller & Lux , 31 S. Ct. 11 ( 1910 )

United States v. Walker River Irr. Dist. , 11 F. Supp. 158 ( 1935 )

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