Court’s Correction in Water Case Favors Tribe

(CN) - The 9th Circuit on Monday took the unusual step of expanding an April order requiring an irrigation district to give back the excess tribal lake water it diverted over the years.

The case stems from the government's efforts to recoup the excess water diverted from the Truckee and Carson rivers for agricultural use.

In the mid-1990s, the United States filed a complaint against the board of directors for the Truckee Irrigation District, claiming the district diverted too much water from the Truckee River, which flows into Pyramid Lake.

The Pyramid Lake Paiute Indian Tribe, which controls the lake, intervened as a plaintiff.

The government and tribe argued that the irrigation district siphoned off more water than allowed under the "operating criteria and procedures" first imposed by the Secretary of the Interior in the 1960s.

Under federal law, the government may "pursue recoupment of any water diverted from the Truckee River in excess of the amounts permitted by any such operating criteria and procedures."

In April, the 9th Circuit upheld a district court's ruling for the tribe, but said the amount of water the tribe could recoup should have been higher due to a "gauge error" miscalculation.

On Monday, the federal appeals court in San Francisco acknowledged that the error likely impacted water measurements for more years than the judges initially thought.

"It now appears that our understanding of the scope of the gauge error claim was mistaken and that the government was claiming the gauge error calculation had affected the flow measurement in other years as well," Judge Mary Schroeder wrote.

The court said the irrigation district's diversions may have exceeded the limit not only in 1974, 1975, 1978 and 1979, as the panel originally held, but also in 1973, 1976, 1983 and 1986.

"We therefore should not have limited recalculation to the four years in which the district court initially found excess diversions," Schroeder wrote. "Rather, we should have ordered recalculation of the gauge error's impact in all the years potentially affected."

It withdrew and corrected its April mandate to include those four additional years, but cautioned against reading too much into the adjustment.

"Although we take the rare step of correcting a prior mandate, the parties should not take from this opinion any signal that decisions involving water diversions from the Truckee and Carson have any less finality than decisions in other cases," Schroeder wrote. "The rules of procedure and the purposes of res judicata apply no differently here than in other cases."

The court also dismissed appeals by Churchill County and the state of Nevada for lack of standing.

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