Ninth Circuit Berates Federal Judge, Reassigns His Case

(CN) – The Ninth Circuit berated a district court judge as it overturned a series of lower court decisions on Tuesday, bringing clarity to a complex water rights issue in northern Nevada.

Rebuking U.S. District Judge Robert Clive Jones, a three-judge panel overturned two separate cases involving water rights on the Walker River, reassigning one of them due to doubts about Jones’ impartiality.

“We reluctantly conclude that reassignment is appropriate here because we believe (1) that Judge Jones would have substantial difficulty putting out of his mind previously expressed views about the federal government and its attorneys, and (2) that reassignment will preserve the appearance of justice,” U.S. Circuit Judge A. Wallace Tashima wrote on behalf of a three-judge panel in a 31-page opinion.

Jones, a George W. Bush appointee, attempted to bar U.S. Attorneys from arguing in his court because he had concerns that lawyers from Washington, D.C. lacked ethical standards. He finally allowed two government attorneys, from Boise, Idaho and Denver, Colorado, to appear in the case after the Ninth Circuit ordered him to do so.

“Here, even after admitting the government attorneys, Judge Jones demonstrated his unwillingness to consider fairly the United States’ interests in this case,” Tashima wrote. “For these reasons we conclude that Judge Jones would have substantial difficulty in fairly considering the United States’ counterclaims on remand.”

The case involves two distinct elements — state government’s ability to alter irrigation systems connected to the Walker River and whether the Walker River Paiute Tribe has historical water rights dating back to the 20th century.

The headwaters of the Walker are located in Mono County in eastern California. The river is comprised of two forks, with the west fork beginning in the Emigrant Wilderness and the east fork issuing from the Hoover Wilderness.

The forks eventually conjoin and meander through valleys on the eastern flank of the Sierra Nevada mountains before draining into Walker Lake.

Walker Lake is a small remnant of the once-vast Lahontan Lake, which teemed with native fish – including the endangered Lahontan cutthroat trout – when pioneers first settled it in the middle of the 1800s. After the discovery of the Comstock Lode, one of the world’s largest silver mines, in the 1860s, settlers began to cultivate nearby land using the Walker River for irrigation.

This practice increased in the ensuing decades, shrinking Walker Lake by 181 feet from 1862 to 2016. The decrease made the waters more saline, harming trout and other native fish and detrimentally affecting bird species that historically used it for hunting, breeding and migration stopovers.

Looking to reverse the ecological damage, Congress passed the Walker Basin Restoration Program in 2002. The market-based approach bought water rights from willing sellers and allowed the water to flow into Walker Lake rather than using it for agriculture.

As part of this program, the Nevada State Engineer and the California State Water Resources Control Board made separate but related alterations to how water was diverted at various points along the river to allow more flow into Walker Lake.

Farmers, the Paiute Tribe and other entities sued the two state agencies in federal court alleging two principle injuries — the change in diversion would impair farmers’ water rights and Walker Lake was outside the Walker River Basin and as such was not subject to the restoration program.

Judge Jones sided with the plaintiffs on both scores, but the Ninth Circuit reversed.

U.S. Circuit Judge Jay Bybee said both state agencies were entitled to deference from the court, particularly if they made decisions based on the record and consistent with law.

“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,” Bybee wrote for the panel in a 58-page opinion.

The panel also took issue with Judge Jones’ attempt to render Walker Lake’s location in the Walker River Basin ambiguous.

“We do not think there is any ambiguity in the phrase ‘basin of the Walker River,’” Bybee wrote. “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 panel remanded the case back to the district court, ordering deference to the state agencies’ decisions.

The second case involved the extent of the Paiute Tribe’s water rights on the Walker River, along with the surrounding groundwater. Jones threw this case out without ruling on it, which the Ninth Circuit panel said was done in error.

The panel added that Jones could not be trusted to remove his personal bias against the federal government, demanding that the case be assigned a different judge on remand.

The panel refrained from ruling on a final aspect of the case regarding the public trust doctrine and its role in the matter, as the Nevada Supreme Court is currently considering the question.

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