Ninth Circuit Tries to Unravel Western Water Fight

PASADENA, Calif. (CN) — The Ninth Circuit needs to sort out who governs water pumping in western Nevada after hearing three hours of arguments in three cases Wednesday, involving arcane but important issues of Western water law.

The three cases regard how to allocate water resources in the Walker River Basin in western Nevada, which provides water for communities in Nevada and California.

Nevada’s state engineer in early 2015 curtailed the amount of water to be allocated to local farmers and others. And the U.S. Board of Water Commissioners wants to create its own set of water rules, an attorney told the panel.

Western water law is a fiendishly difficult subject, with interstate compacts and state and federal rulings dating back more than a century, complicated by the fact that water allocations were often based on using 100 percent of the available water, in an arid region where water availability varies tremendously over the years, and development and population growth have mushroomed.

Representing the National Fish and Wildlife Foundation, attorney Don Springmeyer said the U.S. Board of Water Commissioners wants to usurp local and federal authority on adjustments to water withdrawal levels already limited by the Walker River Decree.

He said the board’s position is that the “Walker River Decree should be this little fiefdom of decree law that is untethered to Nevada water law, California water law, much less Ninth Circuit law and U.S. Supreme court law, all of which teach us we should be looking to state water law.”

The 1936 Walker River Decree regulates water use in the Walker River Irrigation District, but developments since then have put pressure on local water resources. Some want increased water withdrawals, while others oppose them.

U.S. District Judge Robert Jones dismissed the lawsuits filed by local units and the Walker River Paiute tribe, opposing the proposed increases favored by the U.S. Board of Water Commissioners and others. The local units and the tribe appealed.

Some on Wednesday asked the Ninth Circuit to remove Jones from hearing the matter if remanded, saying his personal biases are affecting his handling of the case, and he is hostile toward attorneys.

Representing the Walker River Irrigation District, Gordon DePaoli told the panel Jones’s ruling missed fundamental differences between natural flow water rights, historic water rights and access to stored water.

Natural flow is part of the river system, DePaoli said, while stored water would have been wasted if not captured in a reservoir.

DePaoli said laws governing stored water in Nevada and California are essentially the same, so the court should not have to differentiate based on differences in state laws.

DaPaoli said the court ultimately has to weigh water rights in two states and federal water rights.

Another issue is whether the Walker River Basin includes Walker Lake, as well as drainage from nearby mountains.

Local units and the Walker Lake Paiute tribe argued said increases in water withdrawals would have a significant impact on the local environment, wildlife habitat and might drain Walker Lake.

Senior Ninth Circuit Judge Raymond Fisher suggested the Nevada Supreme Court might be the best venue to decide how to govern potential changes in water rights.

Brian Stockton, representing the Nevada Department of Wildlife, said the matter is a political question that the Nevada Legislature should handle, not the state court.

While Walker Lake has suffered, he said, the water rights are designed to “make the desert bloom,” and the state protects the water.

Stockton said the matter should not go to the Nevada Supreme Court to decide.

Senior Ninth Circuit Judge A. Wallace Tashima also heard the oral arguments.

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