Filed: Dec. 07, 2007
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Plaintiff-Appellant, and CITY OF FERNLEY, Petitioner, v. ALPINE LAND & RESERVOIR COMPANY, a corporation; et al., Defendant, No. 06-17375 and NEVADA STATE ENGINEER; WATER D.C. No. CV-73-00184-RCJ TRANSFER APPLICATION NOS. 49999 (WORKMAN), 51051 (HARRIMAN), OPINION 51608 (DEBRAGA) AND 52843 (INGLIS); WATER TRANSFER APPLICATION NOS. 50008 (RAMB
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Plaintiff-Appellant, and CITY OF FERNLEY, Petitioner, v. ALPINE LAND & RESERVOIR COMPANY, a corporation; et al., Defendant, No. 06-17375 and NEVADA STATE ENGINEER; WATER D.C. No. CV-73-00184-RCJ TRANSFER APPLICATION NOS. 49999 (WORKMAN), 51051 (HARRIMAN), OPINION 51608 (DEBRAGA) AND 52843 (INGLIS); WATER TRANSFER APPLICATION NOS. 50008 (RAMBL..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
PYRAMID LAKE PAIUTE TRIBE OF
INDIANS,
Plaintiff-Appellant,
and
CITY OF FERNLEY,
Petitioner,
v.
ALPINE LAND & RESERVOIR
COMPANY, a corporation; et al.,
Defendant,
No. 06-17375
and
NEVADA STATE ENGINEER; WATER D.C. No.
CV-73-00184-RCJ
TRANSFER APPLICATION NOS. 49999
(WORKMAN), 51051 (HARRIMAN), OPINION
51608 (DEBRAGA) AND 52843
(INGLIS); WATER TRANSFER
APPLICATION NOS. 50008
(RAMBLING RIVER RANCHES/FREY),
51043 (STIX) AND 51237 (WOLF);
WATER TRANSFER APPLICATION NO.
51734 (FORMERLY BRIGHT, NOW
HANEVA); WATER TRANSFER
APPLICATION 52335 (PONTE);
WATER TRANSFER APPLICATION NO.
53910 (FORMERLY THOMAS, NOW
UNITED STATES),
Respondents-Appellees.
16065
16066 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Argued and Submitted
November 7, 2007—San Francisco, California
Filed December 7, 2007
Before: John T. Noonan, Ferdinand F. Fernandez and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Fernandez
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16069
COUNSEL
Stephanie Zehren-Thomas, Hester & Zehren, LLC, Louisville,
Colorado; Robert S. Pelcyger, Boulder, Colorado, for the
appellant.
Michael L. Wolz, Senior Deputy Attorney General, Reno,
Nevada, for appellee Nevada State Engineer; Craig A. Prid-
gen and Nathan A. Metcalf, McQuaid Bedford & Van Zandt,
LLP, San Francisco, California, for appellees DeBraga,
Workman, Harriman and Inglis; Colm Moore and Laura A.
Schroeder, Schroeder Law Offices, P.C., Portland, Oregon,
for appellees Rambling River Ranches, Dave Stix and How-
ard Wolf; Katherine J. Barton and William Lazarus, United
States Department of Justice, Environment & Natural
Resources Div., Washington, D.C., for appellee United States.
16070 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
OPINION
FERNANDEZ, Circuit Judge:
Pyramid Lake Paiute Tribe of Indians (Pyramid) appeals
the district court’s order affirming the decision of the Nevada
State Engineer which granted the transfer of water rights from
the parcels of property to which they were then appurtenant
to new parcels. All of the water rights are within the bounda-
ries of the Newlands Reclamation Project.1 Pyramid asserts
that the rights could not be transferred because they had
already been abandoned or forfeited within the meaning of the
law of the State of Nevada. We affirm in part, reverse in part,
and remand in part.
BACKGROUND
We will be brief in setting out the background of this case
because similar disputes have been before us many times in
the past and we have extensively recounted the relevant his-
tory in our resolution of those disputes.2 The Orr Ditch Decree3
was involved in certain of the cases and the Alpine Decree4
1
In the Reclamation Act of 1902, 32 Stat. 388, Congress withdrew about
250,000 acres of land in Nevada from public use, which was then irrigated
with water from the Truckee River and the Carson River. Those actions
created the Project.
2
As relevant here, we have opined on the issues and set forth substantial
comments regarding their history in the following cases: United States v.
Alpine Land & Reservoir Co., 340 F.3d 903 (9th Cir. 2003) (“Alpine VI”);
United States v. Alpine Land & Reservoir Co.,
291 F.3d 1062 (9th Cir.
2002) (“Alpine V”); United States v. Orr Water Ditch Co.,
256 F.3d 935
(9th Cir. 2001) (“Orr Ditch”); United States v. Alpine Land & Reservoir
Co.,
878 F.2d 1217 (9th Cir. 1989) (“Alpine II”).
3
In 1913, the United States initiated litigation for the purpose of settling
competing claims to water of the Truckee River. That resulted in the Orr
Ditch Decree. See Orr Ditch, 256 F.3d at 940.
4
The Alpine Decree resulted from a quiet title action brought by the
United States to adjudicate competing claims to the waters of the Carson
River. See United States v. Alpine Land & Reservoir Co., 697 F.2d 851,
852-53 (9th Cir. 1983) (“Alpine I”).
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16071
was involved in others, but the basic principles we will apply
do not differ from decree to decree. At issue here are chal-
lenged transfers of water rights within the Newlands Recla-
mation Project. As relevant here, those rights are governed by
the Orr Ditch Decree. Pyramid challenges the State Engi-
neer’s approval of ten of the transfer applications. Pyramid
asserts that if, as it believes, the water rights in question were
abandoned or forfeited, the water itself will remain in the
Truckee River. It will then flow into and benefit the ecology
of Pyramid Lake, which is located within the Pyramid Lake
Indian Reservation.
The most recent activities, which have brought this appeal
to us, can be said to stem from the district court’s order of
February 25, 2004; in response to our decisions in Alpine V
and Alpine VI, the district court remanded certain then-
pending transfer applications to the State Engineer for further
consideration. The State Engineer then granted certain trans-
fer applications, while denying others. Ten of the grants are
contested at this time. Review of those grants was sought
before the district court; it concluded that the State Engineer’s
findings were supported by substantial evidence and that his
conclusions of law were consistent with our prior decisions.
Pyramid appeals the approval of the ten applications in
question and argues that because of errors of law or erroneous
findings of fact, some of the water rights in the applications
should have been deemed abandoned or forfeited.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction to review the decisions of
the State Engineer. See United States v. Alpine Land & Reser-
voir Co., 174 F.3d 1007, 1011 (9th Cir. 1999). We have juris-
diction pursuant to 28 U.S.C. § 1291.
Our standard of review relates to the fact that the water
rights law of the State of Nevada controls both the process
16072 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
and the substance of the issues before us. See Alpine
II, 878
F.2d at 1223 (“ ‘Fundamental principles of federalism require
the national government to consult state processes and weigh
state substantive law in shaping and defining a federal water
policy.’ ”); Alpine
I, 697 F.2d at 858 (“[S]tate law will control
the distribution of water rights to the extent that there is no
preempting federal directive.”). Because of that, in accor-
dance with Nevada law, applications to transfer water rights
are first directed to the State Engineer. See Alpine
I, 697 F.2d
at 858. Moreover, the State Engineer’s decisions “ ‘shall be
prima facie correct, and the burden of proof shall be upon the
party challenging the Engineer’s decision.’ ” Alpine
V, 291
F.3d at 1071. We review the State Engineer’s legal interpreta-
tions de novo. See Town of Eureka v. State Engineer,
108
Nev. 163, 165,
826 P.2d 948, 949 (1992) (per curiam). We
uphold the State Engineer’s factual determinations if they are
supported by substantial evidence. Alpine
V, 291 F.3d at
1071.
DISCUSSION
We have previously explicated the law in this area, and
have sometimes felt the need to resolve conflicts or anomalies
that appeared to be developing in our many pronouncements.
Simply put, for the most part the questions now placed before
us do not raise new legal issues. We will avoid undue com-
mentary, which risks the interjection of inconsistencies. We
will not replough that ground, but will, instead, set forth what
we take to be the results of our prior decisions. We will pro-
ceed in that fashion rather than risk injuring the legal plants
that we have heretofore nurtured. Of course, when a new
seedling is presented to us, we will examine it and then plant
it, if that seems appropriate.
What we have applied in the past, and must apply now, is
our interpretation of the law of the State of Nevada. In doing
so, we have never abandoned the overarching principle that
Nevada law does not presume abandonment of a water right
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16073
from nonuse alone, and that claims of abandonment must be
decided after consideration of all of the surrounding circum-
stances. See Alpine VI, 340 F.3d at 916. That said, we have
developed rules for considering questions of abandonment
and forfeiture.
A. Abandonment
We will apply the following rules regarding abandonment
(the first three numbered items have been developed in our
past cases and we will add the fourth for the reasons outlined
in part C(1) of this opinion):
Where some evidence of abandonment5 has been
presented by the contesting party, the transfer appli-
cant must present evidence that:
(1) In fact, the water was beneficially
used on the parcel to which the rights were
attached; or
(2) There was no intent to abandon
because (a) There has been continuous use
of the water on another parcel, and (b) The
applicant presented evidence of an unsuc-
cessful attempt to transfer the water rights
or at least inquired about the possibility of
the transfer and was told by the government
or TCID6 that such a transfer was not per-
mitted (in other words, the transfer was
thwarted by one of those entities).7 See
Alpine VI, 340 F.3d at 917; or
5
At the very least, a showing of some evidence of abandonment requires
evidence of what the State Engineer determines to be a substantial period
of nonuse on the parcel to which the rights were attached, but mere nonuse
on that parcel is not enough to demonstrate abandonment. See Alpine V,
291 F.3d at 1072; Orr
Ditch, 256 F.3d at 945-46.
6
TCID is the Truckee Carson Irrigation District.
7
In Alpine VI, we did not specifically use the word “thwart” in describ-
ing the criteria to demonstrate a lack of intent to abandon although that
16074 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
(3) There was no intent to abandon
because (a) The taxes and assessments were
paid during the period of nonuse, and (b)
There were no improvements inconsistent
with irrigation on the land to which the
rights were attached. See Orr Ditch, 256
F.3d at 946; or
(4) There was no intent to abandon
because (a) The previous owner actually
sold the water rights in question before an
abandonment would otherwise be found,
and (b) The new owner presented evidence
of a lack of intent to abandon the water
rights.
Finally, taking all of the evidence from the contest-
ing party and the transfer applicant, the State Engi-
neer must determine whether the water rights were
abandoned. The contesting party, however, bears the
burden to establish abandonment by clear and con-
vincing evidence, which is that party’s burden of
persuasion. See Alpine VI, 340 F.3d at 921-22.
B. Forfeiture
We will apply the following rules regarding forfeiture:8
Where it appears that the water rights are subject to
forfeiture,9 equitable relief may be granted if:
word was used in the area of forfeiture. However, the word “thwart” cap-
tures our intent.
8
Forfeiture does not apply to water rights “that were vested or for which
appropriations were initiated before . . . March 22, 1913.” Orr Ditch, 256
F.3d at 941-42.
9
Nonuse for “any 5 successive years” results in forfeiture. Nev. Rev.
Stat. § 533.060 (1987).
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16075
(1) Steps were taken to transfer those
rights during the period of nonuse that led
to the forfeiture. See Alpine VI, 340 F.3d at
914; Alpine
V, 291 F.3d at 1078; and
(2) The applicant presented evidence that
the attempt was unsuccessful or at least that
upon inquiry about the possibility of a
transfer the applicant was told by the gov-
ernment or TCID that such a transfer was
not permitted (in other words, the transfer
was thwarted by the governmental entity).
Alpine V, 291 F.3d at 1078; see also Alpine
VI, 340 F.3d at 914; and
(3) The balance of hardships favors the
applicant. Where there is no increased
diversion of water from the river, the bal-
ance will likely favor the applicant. See
Alpine VI, 340 F.3d at 915; Alpine
V, 291
F.3d at 1078 n.21. Otherwise, the decision
would amount to a collateral attack on the
Orr Ditch Decree itself. See Alpine II, 878
F.2d at 1224.
C. Praxis
With the above principles in hand, it is time to turn to con-
sideration of the applications before us.
(1) Application No. 49999 (Workman)
[1] The State Engineer determined that as to Parcel 3 there
was no abandonment because the fact that a sale of the water
rights was made showed lack of intent to abandon, even
though (a) the water was not put to a beneficial use for six
years, (b) there was a use of the parcel inconsistent with irri-
16076 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
gation, and (c) no thwarted attempt to transfer was made. Pyr-
amid attacks that determination in a number of ways.
First, Pyramid says that once a substantial period of nonuse
is shown, there must always be a thwarted attempt to transfer.
That, as our statement of the law shows, is not the case.10
[2] However, Pyramid’s assertion that a mere sale is not
enough is more to the purpose. Our prior decisions have not
spoken to a sale alone, but as our description of the law indi-
cates, they have recognized flexibility, while not allowing for
infinite flexibility. For example, in Alpine
VI, 340 F.3d at
916-17, we recognized the flexibility requirement, but were
quite specific about what would, or would not, suffice to
avoid an abandonment finding on the facts presented. In light
of that, we are constrained to hold that a mere sale after an
abandonment would otherwise be found would not, itself, suf-
fice to show a lack of intent to abandon. However, the situa-
tion is quite different if the State Engineer determines that
there was a sale by the then owner of the rights before an
actual abandonment occurred, and that the new owner pre-
sented evidence of a lack of intent to abandon within the
meaning of the rules we have previously adopted.11 This for-
mulation avoids a rule that would eliminate all of the other
considerations that we have so painstakingly developed in our
cases, while recognizing the fact that a sale of the rights by
the then owner is the very antithesis of intent to abandon.
[3] In the matter at hand, it is clear that the State Engineer
found that a sale by the prior owner took place before it could
be said that he had abandoned the water rights, and, clearly,
the buyer’s speedy transfer request showed that he did not
intend to abandon either.
10
See paragraph A, supra pp. 16073-74.
11
See paragraph A(4), supra p. 16074.
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16077
[4] Thus, we will not set aside the determination regarding
this application.
(2) Application No. 52335 (Ponte)
[5] The State Engineer determined that while there had
been a substantial period of nonuse as to certain, but not all,
of the parcels involved in this application, there had been con-
tinuous use of the water itself and an attempt to transfer the
water rights that was thwarted. We are unable to say that the
State Engineer was not supported by substantial evidence. See
Alpine V, 291 F.3d at 1071; see also State Engineer v. Morris,
107 Nev. 699, 701,
819 P.2d 203, 205 (1991) (per curiam)
(holding that substantial evidence is the proper standard).
Pyramid contends that the transfer attempt came before the
period of nonuse, but we have never held that a water right
is abandoned where the attempt precedes the period of non-
use, nor do we see a reason to impose that rigid rule upon a
decision as amorphous as the intent to abandon inquiry.12
Pyramid then argues that at a status conference a prior dis-
trict judge opined on the specificity of the evidence that was
required before the State Engineer could rule in favor of an
applicant. Pyramid asserts that if that level was not reached,
neither the State Engineer, nor a later district judge could rule
in favor of the applicant. However, those thoughts were not
incorporated into the order remanding the matter to the State
Engineer. That being so, the district court’s comments based
upon what it gleaned from our decisions did not preclude its
later appraisal of the State Engineer’s actual decision on
remand. Cf. United States v. Smith,
389 F.3d 944, 948-50 (9th
Cir. 2004) (per curiam) (holding judge can revisit earlier
orders); City of Los Angeles v. Santa Monica Baykeeper, 254
12
We have applied a more rigid rule in the area of forfeiture, which is
an inherently more rigid area within water law. See, e.g., Alpine VI, 340
F.3d at 914; Alpine
V, 291 F.3d at 1078.
16078 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
F.3d 882, 888-89 (9th Cir. 2001) (same). Rather, the question
was whether the record presented to the State Engineer did
suffice to support his decision.
[6] Thus, we will not set aside the determination regarding
this application.
(3) Application No. 50008 (Rambling River Ranches)
[] The State Engineer determined that the water rights
involved in this application were neither abandoned nor for-
feited, although there had been a substantial period of nonuse
of the water rights on the parcels to which they were appurte-
nant. That period was thirty-eight years as to Parcels 1, 2, 3,
5, 6, 7, 8, and 9; it was twenty-four years as to Parcels 11 and
12; and it was forty years as to Parcel 13. Five of the parcels
(1, 2, 3, 5, and 6) had uses consistent with irrigation; three (7,
8, and 9) had uses partially inconsistent with irrigation; and
three (11, 12, and 13) had uses entirely inconsistent with irri-
gation.
[8] Nevertheless, all of the water itself had been continu-
ously used and all taxes and assessments had been paid. That
alone validated the State Engineer’s decision regarding aban-
donment as to Parcels 1, 2, 3, 5, and 6.13
[9] Moreover, as to all of the involved parcels, the State
Engineer also determined that time and time again the appli-
cant had made attempts to transfer the rights and was thwarted
at every turn by the government or by TCID.14 We cannot say
that determination was devoid of substantial evidence. There-
fore, none of the water rights were abandoned.
[10] The State Engineer did find that portions of Parcels 8
and 9 and all of Parcels 2, 11, and 12 were subject to forfei-
13
See paragraph A(3), supra p. 16074.
14
See paragraph A(2), supra pp. 16073.
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16079
ture. He then went directly to equitable balancing.15 He
decided that there would be no new diversions of water from
Pyramid Lake because the water itself had been used continu-
ously and, at any rate, the amount involved would be of infin-
itesimal value to the lake. As a result, he determined that there
were no forfeitures.
[11] However, as Pyramid points out, that decision over-
looks part of the necessary test, viz the need for a thwarted
attempt during the forfeiture period.16 As it is, water rights on
Parcel 2 and parts of Parcel 8 and 9 had not been used on
those parcels for a period of thirty-eight years, that is, since
1950. The State Engineer found multiple attempts to make
transfers during the 1930’s, the 1940’s, the 1960’s, and the
1970’s, but did not find any attempts during the 1950’s. Thus,
a period of five years passed without an attempt to transfer the
water rights and, perforce, the rights on those parcels were
forfeited.
[12] The period of nonuse on Parcels 11 and 12 had been
a mere twenty-four years (in other words, the nonuse began
in 1964). That makes the issue much closer. Under Nevada
law, as it stood then, “any successive 5 years” was sufficient
to result in a forfeiture. Nev. Rev. Stat. § 533.060 (1987).
From the State Engineer’s findings, it is not possible to deter-
mine whether a successive five-year period passed without a
thwarted transfer attempt during that period.17
[13] Thus, we reverse the State Engineer’s determination
regarding forfeiture of the rights on Parcel 2 and the relevant
portions of Parcels 8 and 9, and set aside and remand this
application for further development of the record regarding
Parcels 11 and 12.
15
That is one element. See paragraph B(3), supra p. 16075.
16
See paragraphs B(1) & (2), supra p. 16075.
17
Id.
16080 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
(4) Application No. 51043 (Stix)
[14] The State Engineer determined that there was a sub-
stantial period of nonuse of the water rights appurtenant to the
parcels in question as far as the parcels themselves were con-
cerned. However, the use of the parcels was not inconsistent
with irrigation and the taxes and assessments were paid.
Therefore, the State Engineer determined that the water rights
were not abandoned. That was correct.18
Thus, we will not set aside the determination regarding this
application.
(5) Application No. 51051 (Harriman)
>BF>[15] >The State Engineer found, among other things,19
that the water rights on the parcels in question had not been
abandoned because the water itself had been continuously
used and there had been a thwarted attempt to transfer.20 That
was supported by the evidence. Pyramid complains that the
attempt was before the period of nonuse, but that is not fatal
to the rights holder.
Thus, we will not set aside the determination regarding this
application.
(6) Application No. 51237 (Wolf)
The State Engineer determined that the evidence of nonuse
presented by Pyramid was questionable, but that was not dis-
18
See paragraph A(3), supra p. 16074.
19
As to two of the parcels (3 and 11) the State Engineer pointed to
defects in Pyramid’s evidence, and as to Parcels 3, 5, 6, and 11, the State
Engineer pointed to the beneficial use due to the inherent irrigation in and
around dirt-lined ditches. We need not decide those questions regarding
those parcels.
20
See paragraph A(2), supra pp. 16073.
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16081
positive. What was dispositive was the determination that,
essentially, the use of the property in question was not incon-
sistent with irrigation and all taxes and assessments had been
paid. That alone was sufficient to show a lack of intent to aban-
don.21 In addition, the State Engineer pointed out that the
water itself had been used continuously.
[16] The exception to the finding that the uses were consis-
tent with irrigation was the further determination that there
was a drain ditch on the land and that the ditch was an incon-
sistent use. However, the State Engineer then determined that
Pyramid had not sufficiently quantified the amount of land
covered by the ditch, or the placement of that ditch on the
land. In so doing, he imposed too high a burden of persuasion
upon Pyramid. See Orr Ditch, 256 F.3d at 947.
What is plainly shown by the record and actually found by
the State Engineer is: “[b]oth sides agree there is a drain ditch
in the middle of the existing place of use . . . and [Pyramid’s]
witnesses quantified that as occupying 1.0 acre of land.”
Moreover, the applicant agreed that the “drain ditch occupies
the center of the existing place of use.” Despite that, the State
Engineer declared that Pyramid’s evidence was insufficient.
That determination is not supportable.
[17] Thus, although we will not set aside the State Engi-
neer’s decision for the most part, his decision as to the land
occupied by the drain ditch must be reversed.
(7) Application No. 51608 (DeBraga)
The State Engineer determined that although the water
itself had been continuously used, there was a substantial
period of nonuse on the parcels to which that water was
appurtenant. The water rights allocated to Parcels 1 and 9 had
not been used there for thirty-nine years, and the use of the
21
See paragraph A(3), supra p. 16073.
16082 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
land was inconsistent with irrigation. Also, the water rights
allocated to Parcel 2 had not been used there for seven years,
and the use of the land was inconsistent with irrigation.
Because of the inconsistent use, the payment of taxes and
assessments was not relevant.
However, the State Engineer declared that the fact that the
applicant had actually been on the Board of TCID from 1974
to 1998 sufficed to show that the applicant had been thwarted
because he had intimate knowledge that no transfer of rights
would be allowed from 1973 to 1984.22 Surely, said the State
Engineer, that should suffice. That has some logic to it, but
comes parlously close to the futility claim that we have
roundly rejected. See Alpine VI, 340 F.3d at 918; Alpine
V,
291 F.3d at 1076; Alpine
II, 878 F.2d at 1223.
Nevertheless, as the district court pointed out, and as the
record shows, the applicant did, in fact, inquire about a trans-
fer of the water rights and was “told no.” The State Engineer’s
contrary suggestion is not supported by the record. Moreover,
there is no reason to believe that the State Engineer omitted
that fact on the basis of credibility as opposed to mere over-
sight. We see no proper purpose in returning the matter for
further clarification of that question.
[18] Still and all, a further difficulty lurks as to Parcels 1
and 9. Even accepting the fact that the applicant served on the
TCID’s Board from 1974 to 1998 and made an inquiry about
transfer during that time, all of that came after these parcels
had been put to uses inconsistent with irrigation since 1948.
On no theory that we have accepted could it be said that the
water rights had not been abandoned during that twenty-five-
year period before any thwarted attempt was made.
A belated request will not do; if it were enough, all of our
prior jurisprudence on this subject would fall away and be
22
See Alpine V, 291 F.3d at 1076 n.19.
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16083
subsumed in a mere determination of whether there was a
continuous use of the water itself. Obviously that is because
there is a request (thwarted or not) as soon as any application
is made, and that alone would then suffice if the use had been
continuous. Under our cases, that would be the veriest non-
sense; it is not the law.
[19] Thus, we uphold the State Engineer’s decision as to
Parcel 2, but the decision as to Parcels 1 and 9 must be
reversed.
(8) Application No. 53910 (Thomas)
[290 The State Engineer determined that Pyramid had sub-
mitted insufficient evidence to show that there had been a
period of nonuse for five successive years and, therefore,
found no forfeiture. The State Engineer recognized that there
was some evidence that the land was not irrigated during cer-
tain years. Still, that did not show by clear and convincing
evidence that the land had been out of use for five consecutive
years. In fact, there was evidence to the contrary. Perhaps the
State Engineer could have inferred that there was a five-year
hiatus in use, but he was not compelled to do so by the facts
in this record.
Thus, we will not set aside the decision on this application.
(9) Application No. 52843 (Inglis)
[21] The State Engineer determined that the dirt-lined
ditches in question here did, themselves, make a beneficial
use of water because the ditches and the land surrounding
those ditches did absorb water, grasses and the like grew as
a result, and cattle pastured on those plants. It followed, of
course, that the use was not inconsistent with irrigation. The
State Engineer did not err.
It is true that in Alpine VI, 340 F.3d at 924, we rejected the
notion that a dirt-lined ditch is, ipso facto, a beneficial use,
16084 PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER
but we went on to say: “There is a possibility that along the
course of a ditch, there may be some beneficial use and appur-
tenant rights if the water is used for lateral root irrigation
. . . .”
Id. at 925. In these proceedings and based on the evi-
dence before him, the State Engineer found precisely that, and
we find no error.
Pyramid argues that there was no showing to support that
determination because the exact quantity of vegetation and the
exact amount of water consumed in growing that vegetation
was not shown. We disagree with that characterization and
fail to see how we can overturn the State Engineer’s determi-
nation that the ditches did not constitute an inconsistent use,
but were, in fact, beneficial pasture.
Thus, we will not set aside the decision on this application.
(10) Application No. 51734 (Bright)
[22] The State Engineer determined that the water rights on
the parcel in question were not abandoned because the dirt-
lined ditches and adjacent land were irrigated due to the flow
of water in the ditch. That flow caused the growth of grasses
and was pasture. We find no error in that determination.
Thus, we will not set aside the decision on this application.
CONCLUSION
We have, once again, been called upon to revisit water
rights issues arising out of the Newlands Reclamation Project
and the Orr Ditch Decree. We appreciate that the State Engi-
neer and some of the applicants are becoming mighty tired of
their trips to and from the federal court system. Thus, we have
tried to sharpen our statement of the rules that must be
applied. Alas, we cannot bring this process to a close, but
must let parts of it continue on their torturous path. In short:
PYRAMID LAKE PAIUTE v. NEVADA STATE ENGINEER 16085
(1) We affirm as to the rulings on the following applica-
tions: No. 49999 (Workman); No. 52335 (Ponte); No. 50008
(Rambling River Ranches) as to abandonment; No. 51043
(Stix); No. 51051 (Harriman); No. 51237 (Wolf), as to land
not occupied by the drain ditch; No. 51608 (DeBraga) as to
Parcel 2; No. 53910 (Thomas); No. 52843 (Inglis); and No.
51734 (Bright).
(2) We reverse as to the rulings on the following applica-
tions: No. 50008 (Rambling River Ranches) as to forfeiture of
Parcel 2 and portions of Parcels 8 and 9; No. 51237 (Wolf)
as to land occupied by the drain ditch; No. 51608 (DeBraga)
as to Parcels 1 and 9.
(3) We remand for further consideration as to the rulings
on the following application: No. 50008 (Rambling River
Ranches) as to forfeiture of Parcels 11 and 12.
AFFIRMED in part, REVERSED in part, and
REMANDED for further consideration in part.
Costs on appeal are awarded against Pyramid as to Appli-
cations No. 49999 (Workman); No. 52335 (Ponte); No. 51043
(Stix); No. 51051 (Harriman); No. 53910 (Thomas); No.
52843 (Inglis); and No. 51734 (Bright). The parties shall bear
their owns costs on appeal as to Applications No. 51237
(Wolf); No. 50008 (Rambling River Ranches); and No. 51608
(DeBraga).
