CASE NOS , & UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 1 of 35 CASE NOS. 11-16470, 11-16475 & 11-16482 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PYRAMID LAKE PAIUTE TRIBE OF INDIANS; UNITED STATES OF AMERICA, Plaintiffs - Appellees, v. NEVADA STATE ENGINEER, et al., Defendants - Appellants. Appeal from the United States District Court for the District of Nevada 3:73-CV-00201-LDG DEFENDANT-APPELLANT NEVADA STATE ENGINEER OPENING BRIEF CATHERINE CORTEZ MASTO Attorney General BRYAN L. STOCKTON Senior Deputy Attorney General 100 North Carson Street Carson City, Nevada 89701 Tel: (775) 684-1228 Fax: (775) 684-1103 Attorneys for State Defendants-Appellant

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 2 of 35 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii I. STATEMENT OF JURISDICTION...1 II. ISSUE PRESENTED FOR REVIEW...1 III. STATEMENT OF THE CASE...1 IV. STATEMENT OF FACTS...3 V. SUMMARY OF THE ARGUMENT...5 VI. STANDARD OF REVIEW...6 VII. ARGUMENT... 10 A. Substantial Evidence Supported the State Engineer s Conclusion that the Proposed Changes Do Not Constitute Changes in Manner of Use... 10 B. Application of NRS 533.023... 17 C. Nevada Water Law Governs Changes in Place or Manner of Use.... 19 1. The Terms of the Alpine Decree Must Be Interpreted Consistently with Nevada law... 23 VIII. CONCLUSION... 26 Certificate of Compliance Pursuant to Fed. R. App. P. 32(a)(7)(C)... 27 STATEMENT OF RELATED CASES... 28 CERTIFICATE OF SERVICE... 29 ii

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 3 of 35 CASES TABLE OF AUTHORITIES California v. United States, 438 U.S. 645, 57 L. Ed. 2d 1018, 98 S. Ct. 2985 (1978)...6 California v. United States, 438 U.S. 645, 664, 98 S.Ct. 2985, 2995, 57 L. Ed.2d 1018 (1978)... 23 Charnock v. Higuerra, 44 P. 171 (Cal. 1896)... 16 City and County of Denver v. Brown, 138 P. 44 (Colo. 1914)... 16 Jones v. Rosner, 102 Nev. 215, 217, 719 P.2d 805, 806 (1986)...9 Morris, 107 Nev. at 701, 819 P.2d at 205...9 Pyramid Lake Paiute Tribe v. Washoe County, 112 Nev. 743, 747, 918 P.2d 697, 700 (1996)...9 State Employment Security Dept. v. Hilton Hotels Corp., 102 Nev. 606, 608, 729 P.2d 497, 498 (1986)...9 State Engineer v. Curtis Park, 101 Nev. 30, 32, 692 P.2d 495, 497 (1985)...8 State Engineer v. Morris, 107 Nev. 699, 701, 819 P.2d 203, 205 (1991)...9 State Of Nevada v. Morros, 104 Nev. 709, 766 P.2d 263 (1988)... 19 State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988)...9 Town of Eureka v. State Engineer, 108 Nev. 163, 826 P.2d 948 (1992)...9 iii

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 4 of 35 United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877, 879 (D. Nev. 1980)...1 United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877, 893 (D. Nev. 1980)...7 United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877.882 (D, Nev. 1980)... 14 United States v. Alpine Land & Reservoir Co., 697 F. 2d 851, 853 (9th Cir 1983)... 11 United States v. Alpine Land & Reservoir Co., 697 F. 2d 851, 854 (9th Cir 1983)... 11 United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 858 (9th Cir. 1983), cert. denied, 464 U.S. 863 (1983)...7 United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 858 (9th Cir. 1983), cert. denied, 464 U.S. 863 (1983) (Alpine I)...6 United States v. Alpine Land & Reservoir Co., 878 F.2d 1217, 1223 (9th Cir. 1989), cert. denied, 498 U.S. 817 (1990) (Alpine II)...7 United States v. Alpine Land & Reservoir Co., 919 F. Supp. 1470, 1474 (D. Nev. 1996)...8 United States v. Alpine Land & Reservoir Co., 983 F.2d 1487, 1493 (9th Cir. 1993) (Alpine III)...7 United States v. Orr Water Ditch Co., 914 F.2d 1302, 1307 (9th Cir. 1990)... 24 Water Right Claim No. 1927-2, 524 N.W.2d 855 (S.D. 1995)... 15 iii

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 5 of 35 STATUTES NRS 533.435(1)... 18 ch. 533, 1989 Nev. Stat. 1733... 25 NRS 533.023... 17 NRS 533.325... 24 NRS 533.370...7 NRS 533.370(2)...7 NRS 533.450(1)...8 NRS 533.450(2)... 19 NRS 533.450(3)... 24 NRS 533.450(9)...8 NRS Chapter 533... 19 Other Authorities Alpine I, 697 F.2d at 858... 23 28 U.S.C. 1291...1 Alpine Decree...7 Alpine I, 697 F.2d at 863...7 Alpine III, 983 F.2d at 1492-1493... 23 Alpine III, 983 F.2d at 1494...8 Irrigation Principles and Practices... 14 iii

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 6 of 35 Nevada State Engineer's Ruling No. 5759... 26 Orr Ditch Decree...3 The Alpine Decree...6 RULES Federal Rules of Appellate Procedure, Rule 4 (a)(1)(a)...1 iii

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 7 of 35 I. STATEMENT OF JURISDICTION The United States District Court for the District of Nevada maintains ongoing jurisdiction of United States v. Alpine Land & Reservoir Co., Case No. D- 183-LDG, of which this case is a part, under 28 U.S.C. 1345. See United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877, 879 (D. Nev. 1980); United States v. Alpine Land & Reservoir Co., 878 F.2d 1217, 1219 n.2 (9th Cir. 1989). The United States Court of Appeals for the Ninth Circuit has jurisdiction under 28 U.S.C. 1291 to review final decisions of the District Court. The final Order was entered on May 11, 2011. Federal Rules of Appellate Procedure, Rule 4 (a)(1)(a) requires an appeal to be filed within 30 days after the entry of judgment or order appealed from. The State Engineer filed his appeal on June 10, 2011. This appeal is from a final order or judgment that disposes of all parties' claims. II. ISSUE PRESENTED FOR REVIEW Whether the State Engineer correctly concluded that the changes in place of use proposed under Applications 71775, 73444 and 73574 did not also constitute a change in the manner of use from irrigation to some other use and therefore need not be limited to their net consumptive use. III. STATEMENT OF THE CASE This case involves the consideration of three Applications to Change the Place of Use (Applications) for certain water rights held by the Nevada Waterfowl 1

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 8 of 35 Association (NWA) and the Nevada Department of Wildlife (NDOW). The State Engineer granted the proposed changes in place of use for the entire decreed duty of those rights over the protests of the Pyramid Lake Paiute Tribe of Indians, (the Tribe) and the United States Department of the Interior, Bureau of Reclamation (United States). Application 71775 was filed by NWA on October 15, 2004. Nevada Waterfowl Association, Excerpt of Record (ER) 102. Application 73444 was filed by NDOW on November 7, 2005. State Engineer s Excerpt of Record (SER) 43-45. Application 73574 was filed by NWA on December 12, 2005. ER 105. Each of those applications was protested by the Tribe. ER at 99, 108. A hearing was held before the State Engineer on all three applications on November 14 and 15, 2006. The State Engineer entered State Engineer's Ruling 5759 (Ruling 5759) on August 14, 2007, in which he granted each of the Applications in their entirety. ER 132. The Tribe and the United States filed petitions for judicial review seeking review of Ruling 5759 on August 30, 2007 and September 12, 2007, respectively. The United States District Court for the District of Nevada (District Court) ruled that the Nevada Legislature s intervening change to a statute defining wildlife purposes was controlling on the prior decree and that only the consumptive use portion of the water right could be transferred. ER 15-16. The 2

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 9 of 35 District Court Vacated State Engineer s ruling 5759 to the extent that it allowed transfer of the non-consumptive portion of the water rights. ER 15-16. The Order was entered on May 11, 2011. The State Engineer filed his appeal on June 10, 2011. IV. STATEMENT OF FACTS NWA's Applications 71775 and 73574 were filed on October 15, 2004, and December 12, 2005 respectively. ER 102, 105. Application 71775 sought to change the place of use of 6.58 acre-feet annually (afa) of water decreed under Claim No. 3 of the Orr Ditch Decree and under the Alpine Decree to a proposed place of use within the area known as Carson Lake and Pasture. ER 102. Application 73574 sought to change 19.25 afa to Carson Lake and Pasture. ER 105. NDOW filed application 73444 on 7 November 2005, seeking to change 38.10 afa to Carson Lake and Pasture. SER 43-45. This change requested a change 0.51 afa, which is the non-consumptive portion only of the water appurtenant to 74.70 acres, the consumptive use portion having been previously changed to Carson Lake and Pasture by NDOW under a different water right application. SER 43-45. The United States and the Tribe protested the Applications on several grounds. However, the protests which are at issue here asserted that the Applications proposed a change in manner of use as well as a change in place of 3

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 10 of 35 use, since the original use of the water was for irrigation, and the proposed use of the water for " recreation, wildlife and/or the maintenance and preservation of wetlands," is not irrigation. ER 136-142. The United States and the Tribe asserted that since the Applications involved changes in manner of use to wildlife, they must be limited to the net consumptive use of the water rights under the administrative provisions of the Alpine Decree, which is 2.99 acre-feet annually. ER 136-137. The State Engineer granted the change applications for the entire duty of 3.50 afa (or in the case of Application 73444 the 0.51 afa that had not been previously changed). ER 143. In addressing the question of whether the Applications presented proposed changes in manner of use, the State Engineer considered expert testimony from both the Tribe and the Applicants. ER 136-142. The State Engineer specifically noted testimony that the water is managed to grow and maximize vegetation for wildlife use, and that the use of water at Carson Lake and Pasture is for the irrigation of a crop. ER 139-140. The State Engineer also noted testimony from State Engineer s Ruling 5078, in which a witness for the United States Department of the Interior, Fish and Wildlife Service, indicated that the Alpine Decree did not contemplate an appropriate duty of water for wetlands, and that there was no consensus on the appropriate duty. ER 140-141. The State Engineer also acknowledged the language of the original Alpine Decree discussing 4

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 11 of 35 the varying acreage in the Carson Pasture and Stillwater Wildlife Refuge areas that was "actually irrigated." ER 141-142. In light of this and other evidence the State Engineer concluded; that substantial evidence was provided to support a determination that the use of water for the provision of food and habitat for migratory wildlife is a beneficial use of water that can be described as irrigation. It is the provision of water for plant growth and thus the Applicants are not requesting a change in manner of use." ER 142. The State Engineer also found that the proposed change would not result in increased diversions of Truckee River water, since 3.5 acre-feet per acre is already allowed and as such there will not be any increase in diversions from the Truckee River. ER 142. V. SUMMARY OF THE ARGUMENT The Federal District Court took a formalistic approach to review of the transfers requested in Applications 71775, 73444 and 73574; without regard to the factual findings of the State Engineer. As the driest state in the nation, Nevada cannot afford a formalistic approach to utilization of water resources that ignores this reality. The State Engineer s focus was on the actual application and use of the water in the Carson Lake and Pasture. SER 3-4. The State Engineer s examination of the operation of Carson Lake and Pasture as a factual matter is entitled to deference over the District Court s formalistic legal analysis as the characterization of the water use as a mixed question of law and fact. 5

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 12 of 35 The State Engineer's conclusion in Ruling 5759 is likewise supported by general principles of Nevada water law, and in particular by the provisions of NRS 533.370 which govern change applications and provide that a change in these valuable property rights will be allowed so long as the proposed change does not conflict with existing rights or threaten to prove detrimental to the public interest. The record shows that the Tribe's decreed rights will not be injured by the proposed changes. The Tribe and the United States have admitted that the proposed changes in place of use do not threaten to prove detrimental to the public interest. The Alpine Decree must be interpreted in a manner consistent with Nevada law and policy. For all of these reasons, the decision of the District Court must be reversed and State Engineer's Ruling 5759 be reinstated. VI. STANDARD OF REVIEW Nevada law governs the issues presented by this case, both before the State Engineer and this Court. The Supreme Court has held, in California v. United States, 438 U.S. 645, 57 L. Ed. 2d 1018, 98 S. Ct. 2985 (1978), that state law will control the distribution of water rights to the extent there is no preempting federal directive. United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 858 (9th Cir. 1983), cert. denied, 464 U.S. 863 (1983) (Alpine I). State law controls as to both procedural and substantive issues as to issues concerning change applications of water decreed under the Orr Ditch or Alpine 6

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 13 of 35 Decrees. United States v. Alpine Land & Reservoir Co., 878 F.2d 1217, 1223 (9th Cir. 1989), cert. denied, 498 U.S. 817 (1990) (Alpine II)( The Alpine decision necessarily contemplated that state law would control both the process and the substance of a proposed transfer of water rights. ). As a consequence, all Nevada change applications will be directed to the State Engineer and will be governed by Nevada law. United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877, 893 (D. Nev. 1980), substantially aff'd., United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 858 (9th Cir. 1983), cert. denied, 464 U.S. 863 (1983). We agree with the district judge that the notice and protest procedures of Nevada law are adequate to allow exploration of these issues, when they arise, before the state engineer. Alpine I, 697 F.2d at 863. NRS 533.370 provides the criteria for addressing applications to transfer rights that have already been appropriated such as those at issue here. United States v. Alpine Land & Reservoir Co., 983 F.2d 1487, 1493 (9th Cir. 1993) (Alpine III). That section states that where a proposed change, "conflicts with existing rights... or threatens to prove detrimental to the public interest, the State Engineer shall reject the application and refuse to issue the requested permit." NRS 533.370(2). The Alpine Decree and Nevada law provide, that the decision of the Engineer shall be prima facie correct, and the burden of proof shall be upon the party challenging the Engineer's decisions. Alpine Decree, Administrative 7

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 14 of 35 Provisions Par. 7; NRS 533.450(9) (same), Alpine III, 983 F.2d at 1494. The function of this Court is to review the evidence on which the State Engineer based his decision to ascertain whether the evidence supports the decision, and if so, the Court is bound to sustain the State Engineer's decision. State Engineer v. Curtis Park, 101 Nev. 30, 32, 692 P.2d 495, 497 (1985). An appeal from a decision of the State Engineer is in the nature of an appeal. NRS 533.450(1) states in pertinent part: Any person feeling himself aggrieved by any order or decision of the State Engineer, acting in person or through his assistants or the water commissioner, affecting his interests, when such order or decision relates to the administration of determined rights or is made pursuant to NRS 533.270 to 533.445, inclusive, may have the same reviewed by a proceeding for that purpose, insofar as may be in the nature of an appeal.... The Nevada Supreme Court has interpreted these provisions to mean that a petitioner does not have a right to de novo review or to offer additional evidence at the District Court. United States v. Alpine Land & Reservoir Co., 919 F. Supp. 1470, 1474 (D. Nev. 1996). The Nevada Supreme Court has explained the Courts function in reviewing a decision of the State Engineer by stating 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. State Engineer v. Morris, 107 8

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 15 of 35 Nev. 699, 701, 819 P.2d 203, 205 (1991). The Nevada Supreme Court has likewise defined substantial evidence as that which a "reasonable mind might accept as adequate to support a conclusion." State Employment Security Dept. v. Hilton Hotels Corp., 102 Nev. 606, 608, 729 P.2d 497, 498 (1986). While the Court is free to decide purely legal issues or questions without deference to an agency determination, the agency's conclusions of law, which will necessarily be closely related to the agency's view of the facts, are entitled to deference and will not be disturbed if they are supported by substantial evidence. Jones v. Rosner, 102 Nev. 215, 217, 719 P.2d 805, 806 (1986); Town of Eureka v. State Engineer, 108 Nev. 163, 826 P.2d 948 (1992). The State Engineer's interpretation of its statutory authority is persuasive, even if not controlling. Morris, 107 Nev. at 701, 819 P.2d at 205 (quoting State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988)). Additionally, any review of the State Engineer's interpretation of his legal authority must be made with the thought that [a]n agency charged with the duty of administering an act is impliedly clothed with power to construe it as a necessary precedent to administrative action. Pyramid Lake Paiute Tribe v. Washoe County, 112 Nev. 743, 747, 918 P.2d 697, 700 (1996), citing State v. State Engineer, 104 Nev. at 713, 766 P.2d at 266 (1988). 9

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 16 of 35 VII. ARGUMENT A. Substantial Evidence Supported the State Engineer s Conclusion that the Proposed Changes Do Not Constitute Changes in Manner of Use. The State Engineer informed the parties that he want[ed] to know what s going to happen on the ground. SER 2-3. The heart of this case is the question of whether the beneficial use of water proposed by Applications 71775, 73444 and 73574 is irrigation, in which case the entire duty of water may be changed, or whether the proposed use constitutes a change in manner of use, in which case only the lesser amount of 2.99 acre feet per acre may be changed. ER 136-137. The Alpine Decree states specifically: "Changes of manner of use applications from use for irrigation to any other use and changes in place of use applications shall be allowed only for the net consumptive use of the water rights as determined by this Decree. Alpine Decree at 161-162, Paragraph VII (NevadaWaterfowl Association Addendum (A) 28). Alpine III, 983 F.2d at 1494. The District Court held that the Alpine Decree lacked any suggestion that these irrigation practices concerned the application of water to land other than for maintaining pastures or growing cash crops. ER 13. Thus, the District Court took the formalistic view that only growing cash crops constituted irrigation and that it would ignore the realities of what is happening on the proposed place of use. Nevada law concentrates on beneficial use of its scarce resources as its primary focus. NRS 533.035. This Court has also instructed the lower court to focus on 10

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 17 of 35 beneficial use. United States v. Alpine Land & Reservoir Co., 697 F. 2d 851, 853 (9th Cir 1983) ( beneficial use is the "basis" and "measure" as well as the "limit" of water rights; it sets the maximum water duty, but, under the statute, it is also the necessary rationale and source of the right. ) This Court further held that the practical approach taken by the State Engineer was proper. The State Engineer s acceptance and analysis of the evidence to determine beneficial use must be undertaken based on the factual situation, unless it is shown that a state applies a special rule of law on a relevant point, it is proper to apply general law in defining beneficial use. United States v. Alpine Land & Reservoir Co., 697 F. 2d 851, 854 (9th Cir 1983). In answering the question of whether Applications 71775, 73444 and 73574 constituted changes in place and manner of use, the State Engineer specifically concluded: The State Engineer finds substantial evidence was provided to support a determination that the use of water for the provision of food and habitat for migratory wildlife is a beneficial use of water that can be described as irrigation. It is the provision of water for plant growth and thus the Applicants are not requesting a change in manner of use. ER 142. The State Engineer approved the applications for the entire duty of 3.50 acre- feet per acre. ER 143. 11

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 18 of 35 Mr. Norman Saake, a former waterfowl and wetland biologist for the Nevada Department of Wildlife with 40 years of experience managing water at Carson Lake and Pasture, SER 8, testified extensively regarding how water is managed there to grow vegetation. SER 11-17. Specifically, he testified that the water is used to irrigate submergent vegetation, phytoplankton, and emergent vegetation. SER 12-14. This includes such plants as sago pond weed, widgeon grass, alkali bulrush, salt grass, hard stem bulrush, red goosefoot, smart weeds, and water grass millets. SER 18. Areas of open water also produce dense stands of submergent vegetation. SER 22-23. These plants would not continue to grow without continued irrigation. Saake testified that the delivery of water for the wetland is requested in the same manner as for agricultural irrigation. Over the time I was there I developed models that allowed me to estimate how much water was going to be needed to meet evaporation rates based on the time of year so that we could irrigate the plants and keep the plants growing. So we supplied what limited supplies of prime water that we had to maximize the amount of food production that we could grow down there, bearing in mind in essence what we're doing, we're not providing water directly for wildlife, we want to grow the plants and then the wildlife comes as a result of what we grow. So we try to maximize how much plant or food sources that we can grow. SER 15-16. Mr. Saake then concluded that the use of water "at Carson Lake by NDOW is for the irrigation of the crop that we're attempting to grow." SER 16. 12

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 19 of 35 Elmer Bull, a Wildlife Staff Specialist for the Nevada Department of Wildlife with responsibility for the management of Carson Lake and Pasture as well as nine wildlife management areas throughout the State also testified as an expert in wetlands management. SER 24-27. He testified specifically as to the manner in which the wetlands are irrigated by directing water through a series of ditches, canals and water control structures in an effort to maintain as high a quality habitat as possible. SER 29-32. Prime water owned by the State is ordered for Carson Lake from the Truckee Carson Irrigation District (TCID) in the same manner as someone who is irrigating farmland. SER 33. Ron Anglin, a former employee of the U.S. Fish and Wildlife Service and Refuge Manager at the Stillwater Wildlife Refuge testified that the water used at the Lahontan Valley wetlands constitutes irrigation. SER 42. Well, without the water it would be like any other plants that you see in Nevada. You drive across Nevada, you see the playas, they are wetlands in the truest sense of the word but they don't have water so that's what it would look like without water. So the water is used to irrigate the lands and produce the plants and animals that are out there. Dave Overvold, project manager for the TCID testified that NDOW and NWA pay the fees for the delivery of a full irrigation duty of water, and that they are not treated any differently from other irrigators. SER 36-37. He also testified 13

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 20 of 35 that delivery of the water to the wetlands in the Lahontan Valley has increased the efficiencies of the Newlands Project. SER 36-37. The text book Irrigation Principles and Practices, SER 46-48, defines irrigation as, "the application of water to soil for the purpose of supplying the moisture essential for plant growth." SER 47. The Division of Water Resources Water Words Dictionary defines "irrigate" as "To supply (dry land) with water by means of ditches, pipes, or streams; to water artificially." SER 48. It defines "irrigation" as: (1) The controlled application of water for agricultural purposes through man-made systems to supply water requirements not satisfied by rainfall; applying water to soil when rainfall is insufficient to maintain desirable soil moisture for plant growth. (2) The application of water to soil for crop production or for turf, shrubbery, or wildlife food and habitat. SER 48. The use of water proposed by Applications 71775, 73444 and 73574 at Carson Lake and Pasture is consistent with each of these definitions, and the State Engineer did not err in concluding that Applications 71775, 73444 and 73574 did not propose a change in manner of use from irrigation to some other use. The District Court recognized in United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877.882 (D, Nev. 1980), that the Carson Pasture and other pasture lands within the project have an irrigation water rights with a priority of July 2, 1902. 14

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 21 of 35 The State Engineer's findings in Ruling 5759 are also consistent with the only known reported decision that has addressed the issue of whether a change in place of use from irrigated farm land to use on a wetland/wildlife refuge constitutes a change in manner of use. In the case of In re Water Right Claim No. 1927-2, 524 N.W.2d 855 (S.D. 1995), objections were raised to applications to appropriate water for a federally owned and operated national wildlife refuge as well as an application to change the point of diversion and the place of use of other water rights from agricultural land to wetlands on the wildlife refuge. The protestants asserted that the change in place of use and point of diversion of the agricultural water rights would impermissibly amend an irrigation use into a non-irrigation use. The South Dakota Supreme Court concluded: The Board found that the use of the water under the Third permit would provide habitat for waterfowl, including sloughs and marshlands with plant growth essential for waterfowl survival and propagation. Under ARSD 74:02:01:01(4), the use remains for "irrigation" by providing moisture for plant growth. The court affirmed the Board on this point and no error is shown. Id. at 859-860. The key factor in the South Dakota Supreme Court's decision that the use of water for wetland purposes constitutes irrigation is that water would be supplied for plant growth. The State Engineer relied on the same fact in reaching the same conclusion that the application of water in a wetland to support plant growth is irrigation. 15

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 22 of 35 A number of other jurisdictions have similarly defined irrigation under different factual scenarios. For example, in City and County of Denver v. Brown, 138 P. 44 (Colo. 1914), an action was brought to adjudicate rights to the use of water from the Platte Water Ditch. Id. at 45. The City of Denver asserted a claim for water based on its irrigation of shade trees along its streets and on some lots and for irrigation of its parks. Id. at 49. It was asserted that the City of Denver's right to the use of water should be subordinated to any claims asserting rights for the irrigation of crops. Id. The Colorado Supreme Court stated: Irrigation means the application of water for the purpose of nourishing plants. We think the application of water to grow trees upon streets and irrigate trees, shrubs, grasses and other plant life usually grown in parks constitutes the use of water for irrigation just as much as the application of water to grow crops upon farms. Both uses are for the purposes of nourishing useful plant life, and therefore neither one is in any sense superior to the other or entitled to preference over the other. Id. at 49-50. The Colorado definition of irrigation is completely consistent with the State Engineer's conclusion that providing water for the growth and maintenance of wetland plants constitutes irrigation. Such use of water constitutes providing water to nourish useful plant life, and can only be considered irrigation. In Charnock v. Higuerra, 44 P. 171 (Cal. 1896), riparian landowners sued to stop the use of water by an upstream riparian landowner and asserted that the upstream owner did not have the right to irrigate his lands by the use of pumps. 16

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 23 of 35 The California Supreme Court stated: "The Latin word from which [irrigation] is derived means, primarily, to convey water to or upon anything and, more generally, to wet or moisten anything; and the ordinary definition in our language is to water lands, whether by channels, by flooding, or simply by sprinkling." Id. at 171. Certainly the application of water to land as proposed by NDOW's and NWA's Application constitutes irrigation under this definition. B. Application of NRS 533.023. The District Court relied heavily on NRS 533.023 to find that the use of water proposed under Applications 71775, 73444 and 73574 constitutes a change in manner of use from irrigation. However, NRS 533.023 does not define the term "irrigation" or makes any reference to irrigation. It therefore sheds no light on the meaning of that term as it is used in the Alpine Decree. This is critical since the sole question here is whether the proposed use of water under Applications 71775, 73444 and 73574 constitutes a change in use from irrigation. In fact, District Court s Order is based exclusively on the premise that if the use of water may be defined as a "wildlife purpose" it cannot be considered irrigation. This premise is not supported by any legal authority and is not logically correct, since, as held by the South Dakota Supreme Court in In re Water Right Claim No. 1927-2, water may be used to irrigate plants for the benefit of wildlife without altering the fact that the water is in fact being used for irrigation. 17

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 24 of 35 NRS 533.023 in conjunction with 533.435(1) only address the question of the fees that are to be paid for permits for wildlife purposes, and are primarily concerned with in situ or wildlife watering purposes. SER 34. The addition of these code sections in 1989 arose from a concern that NDOW was not a profitmaking entity and therefore should be allowed to pay lower permit fees. SER 34-35. These provisions were not enacted to change or address the manner of use of any rights involved. Id. These sections therefore have no bearing on the definition of the term "irrigation" as it is used in the Alpine Decree. NRS 533.023 by its terms only defines "wildlife purposes" as that term may be used in Chapter 533 of the Nevada Revised Statutes. "As used in this chapter, `wildlife purposes' includes...." It certainly was never intended to address the question of whether a proposed change constituted a change from irrigation to some other use under the provisions of the Alpine Decree. In fact, were these proposed changes being pursued exclusively under the Nevada water code rather than the provisions of the Alpine Decree, the question of whether their proposed use constitutes a change from irrigation would not even be at issue since the question under NRS 533.370(2) is whether a proposed change will conflict with existing rights and not whether there has been a change from irrigation to some other manner of use. NRS 533.023 cannot be used to define "irrigation" for the purposes of the Alpine Decree nor be said to reflect any Nevada policy regarding 18

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 25 of 35 the change of irrigation rights since the terms "wildlife purposes" and "irrigation" are limited in application to NRS Chapter 533. C. Nevada Water Law Governs Changes in Place or Manner of Use. Finally, both of the statutes relied upon by the District Court were enacted after the entry of the final Alpine Decree, and are therefore irrelevant to the issue of the interpretation of the term "irrigation" as it was used by this Court in the Decree. The Alpine Decree was entered by this Court on 28 October, 1980. NRS 533.023 and NRS 533.435 became effective on July 1, 1989. Statutes of Nevada 1989, 1733, Section 4 at 1736. NRS 533.023 does not address irrigation rights. Changes of place or manner of use of water rights are reflected in the Nevada s water law change provision, which is that a proposed change may not "conflict with existing rights." NRS 533.450(2). Under that policy, NDOW's and NWA's Applications 71775, 73444 and 73574 must be granted since both the Tribe and the United States admit that the proposed changes will not conflict with their rights. SER 4. For similar reasons, the Nevada Supreme Court's decision in State Of Nevada v. Morros, 104 Nev. 709, 766 P.2d 263 (1988), is irrelevant to the question of whether the proposed changes here constitute a change in manner of use from irrigation. That case presented an appeal of a decision of the Nevada State Engineer granting water rights to the United States Bureau of Land Management 19

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 26 of 35 for in situ use in Blue Lake to assure maintenance of the pool of that lake for public recreation and fishery purposes, and for the watering of stock and wildlife. Id. 104 Nev. at 712, 766 P.2d at 265. The State Engineer's approval of an application for a new appropriation of water was challenged on the grounds that Nevada water law requires a physical diversion of water to obtain a right, Id. at 712, 766 P.2d at 265, and that granting an in situ right to the United States would be contrary to the public interest. Id. at 715, 766 P.2d at 267. The State Engineer challenged the District Court's reversal of his approval of the stock and wildlife watering rights, which reversal concluded the United States could not hold such rights because it did not own the animals that would be watered. Id. at 715-716, 766 P.2d at 267. The Nevada Supreme Court affirmed the decision of the State Engineer on all points, holding that there was no absolute diversion requirement under Nevada law, Id. at 713, 766 P.2d at 266, that in situ rights were not contrary to the public interest, Id. at 715, 766 P.2d at 267, that the United States could appropriate water for stock and wildlife watering since those are beneficial uses and it had a proprietary interest in the lands at issue, Id. at 716-717, 766 P.2d at 268, and that the United States was a person for the purposes of the appropriation of water rights. Id. at 717-718, 766 P.2d at 269. As this review of the case shows, the Morros decision is neither controlling nor instructive on the issues presented for review in State Engineer's Ruling 5759. 20

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 27 of 35 The Morros applications were for new appropriations of water and not changes in place of use as are proposed here by Applications 71775, 73444 and 73574. The issues relevant to change applications are therefore not addressed. There was no contention in Morros that water was not available for appropriation or that it would conflict with existing rights, but that the proposed use was not a beneficial one and did not involve a physical diversion of the water, issues not raised here. Second, the use of water under the Morros applications is factually distinct from the uses proposed under Applications 71775, 73444 and 73574. In Morros, the rights were to maintain lake levels and to provide drinking water for animals. Here, as has been extensively shown in the record, the purpose of the water is to water and maintain plants. Morros deals with the in situ use of water for wildlife, while Applications 71775, 73444 and 73574 are concerned with the irrigation of plants. Finally, and most importantly, the Morros decision does not address the question of whether changes in place of use such as those proposed by Applications 71775, 73444 and 73574 constitute changes from irrigation to some other use. Morros addresses no more than whether a person can apply for and whether an in situ use of water for wildlife in a beneficial use, and sheds no light on the interpretation of "irrigation" as that term is used in the Alpine Decree, either factually or legally. The decision in Morros is not relevant to the issues presented in under Applications 71775, 73444 and 73574 in any way. 21

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 28 of 35 The policies underlying the rules for the Alpine Decree are clearly to protect farmers from injury when water rights are transferred to industrial or municipal uses. Those changes result in water being removed from the irrigation system. The formalistic result of the District Court s decision is to harm those same farmers the decree was written to protect by taking water out of the system. Conversely, the change applications keep the water in the system for delivery to land within the Newlands Project area, and there is no difference to any user of Alpine Decree water if the changes are approved at the full duty of water. The windfall to the Truckee River harms the farmers in the Newlands Project. Ultimately, the question of whether the use of water proposed under Applications 71775, 73444 and 73574 constitutes irrigation or a change in manner of use is a question of how that water was and actually will be used. Substantial evidence shows that this water will be applied to dry land by means of ditches and other mechanical means of diversion in order to provide water for the growth of plants. Such use is irrigation according to each of the definitions admitted into evidence and with numerous judicial pronouncements made under a variety of factual scenarios. The State Engineer's determination that the use of water under Applications 71775, 73444 and 73574 does not constitute a change in manner of use from irrigation to some other use must be affirmed as a consequence. 22

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 29 of 35 1. The Terms of the Alpine Decree Must Be Interpreted Consistently with Nevada law. It is now a well-established principle that Nevada law controls both the substance and procedure of applications to change the place of use, manner of use or point of diversion of Alpine Decree water rights. "[A]ll Nevada change applications will be directed to the State Engineer and will be governed by Nevada law." United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877, 893 (D. Nev. 1980), substantially aff'd., Alpine I, 697 F.2d at 858. State law applies as a matter of federal policy. "This court's holding in Alpine that state law governs the validity of transfers of water rights was simply an application of the 1902 Reclamation Act." Id. The Supreme Court has acknowledged that "the Act clearly provided that state water law would control in the appropriation and later distribution of the water." California v. United States, 438 U.S. 645, 664, 98 S.Ct. 2985, 2995, 57 L. Ed.2d 1018 (1978). Thus, it was the 1902 Act that established that Nevada state law was governing, not this Court's approval of the Alpine decree in 1983. Id. The provisions of NRS 533.370(2) have specifically been applied to Alpine Decree change applications. Id. at 1224. See also, Alpine III, 983 F.2d at 1492-1493. State law not only controls the administration of water rights, but also controls the adjudication of those rights in the first instance. "In adjudicating water rights, courts must look to state law." United States v. Orr Water Ditch Co., 914 23

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 30 of 35 F.2d 1302, 1307 (9th Cir. 1990). The significance of State law in the adjudication of rights and the administration of the Decree is further underscored by the fact that each of the provisions of Paragraph VII of the Administrative Provisions of the Alpine Decree mirror provisions of Nevada's water code, including the filing requirement for change applications, NRS 533.325, the appeal provision, NRS 533.450(1), the timing and notice requirements for appeals, NRS 533.450(3), and the standard of review. NRS 533.450(9). Because Nevada law controls the adjudication and administration of the Alpine Decree the terms of paragraph VII of the Administrative Provisions of the Decree must be interpreted in accordance with the requirements and policies of Nevada's water code. To conclude otherwise would be to endorse the creation of water law with no basis in Nevada law, which is inconsistent with the Alpine Decree and controlling federal policy. NRS 533.370(2) sets forth the standards for considering a proposed change of a water right, and expresses the policies under which the change provision of the Alpine Decree must be interpreted. That section states in relevant part: [W]here there is no unappropriated water in the proposed source of supply, or where its proposed use or change conflicts with existing rights or with protectable interests in existing domestic wells... or threatens to prove detrimental to the public interest, the State Engineer shall reject the application and refuse to issue the requested permit. 24

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 31 of 35 NRS 533.370(2). The controlling policy of NRS 533.370(2) is that a proposed change may not conflict with existing rights nor threaten to prove detrimental to the public interest. The term "irrigation" as used in the change provision of the Decree must be interpreted in light of those statutory criteria. It is surprising that the District Court relied heavily on the definition of wildlife uses in NRS 533.023, even though it does not purport to address the question at hand, and did not exist at the time the decree was entered. The final decree was entered on October 28, 1980. The definition of wildlife was added to the Nevada Revised Statutes on July 5, 1989. Act of July 5, 1989, ch. 533, 1989 Nev. Stat. 1733. To assume that the legislature added NRS 533.023 to aid in the interpretation of the Alpine Decree is beyond belief. NRS 533.023 sheds no light on what was intended by the use of the term "irrigation" in the Decree. However, the District Court may not ignore NRS 533.370(2), which is very likely the basis of the Decree's change provisions and is without question the controlling provision of Nevada's water code. The narrow interpretation of "irrigation" as used in the change provision of the Decree must also be rejected since it leads to a result in conflict with Nevada law: a proposed change could be denied in part even though it does not conflict with existing rights or threaten to prove detrimental to the public interest. Neither the Tribe nor the United States offer any justification for why the Decree must be 25

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 32 of 35 interpreted in this absurd manner, however, other than the Tribe's desire to gain a windfall from the proposed changes to the detriment of the Carson Lake and Pasture. An interpretation that is so inconsistent with controlling principles of Nevada law must be rejected, especially where no other valid justification for the interpretation exists. VIII. CONCLUSION The District Court s formalistic review of the Nevada State Engineer's Ruling No. 5759 ignored the reality of the water use on the Carson Lake and Pasture. Accordingly, the decision must be reversed and State Engineer's Ruling 5759 be reinstated. DATED this 20th day of March 2012. CATHERINE CORTEZ MASTO Attorney General By: /s/ Bryan L. Stockton BRYAN L. STOCKTON Senior Deputy Attorney General Nevada State Bar #4764 100 North Carson Street Carson City, Nevada 89701 (775) 684-1228 26

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 33 of 35 Certificate of Compliance Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit Rule 32-1 Case Number 09-15614 Form Must Be Signed By Attorney or Unrepresented Litigant and attached to the back of each copy of the brief I certify that: (check appropriate option(s)) X Pursuant to Fed. R. App. P. 32 (a)(7)(c) and Ninth Circuit Rule 32-1, the attached Opening Brief is Proportionately spaced, has a typeface of 14 points or more and contains 6888 words. (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words), March 20, 2012 Date /s/ Bryan L. Stockton Signature of Attorney Bryan L. Stockton Senior Deputy Attorney General 27

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 34 of 35 STATEMENT OF RELATED CASES Pursuant to Circuit Rule 28-2.6, Appellees are unaware of any related case which is pending this Court. 28

Case: 11-16482 03/20/2012 ID: 8111451 DktEntry: 21-1 Page: 35 of 35 CERTIFICATE OF SERVICE I hereby certify that on March 20, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system. /s/ Bryan L. Stockton 29