IN EQUITY A-3 : UNITED STATES OF AMERICA V. ORR WATER DITCH COMPANY

Filing 1574

ORDER MODIFYING THE FINAL DECREE ENTERED IN THIS CASE IN 1944. Signed by Judge Lloyd D. George on 9/30/2014. (Copies have been distributed pursuant to the NEF - KR)

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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

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UNITED STATES OF AMERICA, et al.,
Plaintiff,

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v.
THE ORR WATER DITCH CO.

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Case No. 3:73-cv-00003-LDG
[PROPOSED] ORDER
MODIFYING THE FINAL
DECREE ENTERED IN
THIS CASE IN 1944

The Court has considered the Am ended Motion of the United States, State of California,
State of Nevada, Pyram id Lake Paiute Tribe, Truckee Meadows W ater Authority, the W ashoe

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County Water Conservation District, and the City ofFernley to Modify or Amend the Final Decree

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Entered in this Case in 1944, all evidence in supporthereof, all oppositions thereto, and evidence in
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support thereof. The Court finds and concludes:that the Moving Parties have satisfied their burden
of showing both significant changes in law and in factual conditions since the Final Decree was
entered in this case in 1944; that those changes m it no longer equitable that certain provisions of
ake

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the Final Decree concerning the operation of Lake Tahoe and Boca Reservoir should continue to

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have prospective application; and that continuing to give those provisions prospective application is

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not in the public interest. The Court further findsand concludes that the proposed m
odifications to

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the Final Decree, which include both changes and additions, are suitably tailored to resolve the
problems created by the changed legal and factual conditions.
NOW, THEREFORE, and good cause having beenshown, the Amended Motion to Modify
or Amend is GRANTED, and it is hereby ORDERED, ADJUDGED and DECREED as follows:
1.

Notwithstanding anything to the contrary inthe sixth paragraph or the last paragraph

of the General Provisions of the Final Decree enered September 8, 1944, including any amendments
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thereto made prior to the entering of this Orde ("1944 Decree") or in the Truckee River Agreem
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ent

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dated July 1, 1935, which was previously approved, adopted by the Court, and made a part of the

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1944 Decree (“Truckee River Agreement”), and subject to the provisions ofparagraphs 9 through 11

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and paragraph 15 of this Order, Lake Tahoe, Boca Reservoir, Prosser Creek Reservoir, Stampede

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Reservoir, Donner Lake and Independence Lake sh be operated in accordance with the term and
all
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conditions of the Truckee River Operating Agreement signed September 6, 2008 (“Truckee River
Operating Agreement”).
2.

Except as provided in paragraphs 3 through 7 of this Order, the Truckee River

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Agreement which was previously approved, adopted by the Court, and m ade a part of the 1944

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Decree, is superseded by the Truckee River Operating Agreem ent, and is of no further force and

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effect, and the 1944 Decree be, and the same hereby is, amended accordingly.

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3.

Articles IX and XXIII of the Truckee

River Agreement which was previously

approved, adopted by the Court, and m ade a part of the 1944 Decree shall rem ain in effect with

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respect to Privately Owned Stored W ater owned by persons who are not Signatory Parties to the

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Truckee River Operating Agreement.

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4.

Articles II(A), II(B), II(D)(1), X, XI, XII, XX, and XXVII of the Truckee River

Agreement which was previously approved, adopted by the Court, and m ade a part of the 1944
Decree were required to have been performed before or simultaneous with the entry of said 1944
Decree and as a result of the entry of said 1944
Decree on September 8, 1944 it was determ
ined that
such Articles were fully executed and performed or that such performance was not required.
5.

With respect to the allocation of existing operating expenses of Boca Reservoir,

Article II(C)(1) and with respect to ownership of Pondage, Article II(C)(2) of the Truckee River
Agreement which was previously approved, adopted by the Court, and m ade a part of the 1944
Decree never became operative as a result of an agreement dated January 15, 1937, am ong the

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United States of America, the Washoe County Water Conservation District and Sierra Pacific Power
Company.
6.

Except as provided in Sections 5.A.7 and 5.A.8 of the Truckee River Operating

Agreement, Articles V and VII, and except as pr ovided in paragraph 14 of this Order, Article
XXV(B) of the Truckee River Agreement which was previously approved, adopted by the Court,
and made a part of the 1944 Decree, shall remain in effect.
7.

Articles VIII, XIII and XXV (C),( G)(1) a d (G)(2) of the Truckee River Agreement
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which was previously approved, adopted by the Court, and made a part of the 1944 Decree, shall

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remain in effect.

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8.

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Subject to the provisions of paragraphs 9 through 11 and paragraph 15 of this Order,

the Truckee River Operating Agreement is hereby approved, adopted by the Court and m a part
ade
of the Decree, and shall be binding as between the
Signatory Parties to the Truckee Rive Operating
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Agreement. The Federal W ater Master for th e Truckee River is hereby appointed as the

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Administrator of the Truckee River Operating Agr ement, and is ordered toimplement the Truckee
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River Operating Agreement as the operating agreement for this Decree.

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9.

This Court retains and reserves jurisdicti n to enforce and administer the provisions
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of Section 1.C.1 of the Truckee River Operating Agreement.
10.

In addition to any rem edy which may be available pursuant to the retention and

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reservation of continuing jurisdiction under para graph 9 above, the Adm inistrator charged with

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implementing the Truckee River Operating Agr

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provisions of Section 1.C.2 of the Truckee River Operating Agreement.

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11.

eement shall im plement and adm inister the

When water is not available to satisf water rights under the 1944 Decree as amended
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by this Order, because of im plementation of Section 204(b) and Section 204(c) of the TruckeeCarson-Pyramid Lake W ater Rights Settlem ent Act of 1990, Pub. L. 101-618, 104 Stat. 3294

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(“Settlement Act”) or as a result of the voluntary relinquishment of water rights, the provisions of
paragraphs 9 and 10 above do not apply.
12.

State of Nevada Perm it Nos. 48061 and 48494 dated March 3, 2009, are hereby

confirmed and incorporated into this Decree, and shall be assigned the next in order claim number
by the Federal Water Master, and shall be enforced by the Federal Water Master appointed by this
Court pursuant to the General Provisions of this Decree, as amended.
13.

Review by this Court of the exercise ofany administrative or regulatory jurisdiction

over State of Nevada Permit Nos. 48061 and 48494 shall be de novo.
14.

Based upon Nevada State Engineer Ruling No. 5972 dated April 17, 2009, and as a

result of Nevada Permit Nos. 48061 and 48494, the watersof the Truckee River and its tributaries in
Nevada are hereby declared fully appropriated and closed to new appropriations.
15.

The General Provisions of the 1944 Decree are hereby am
ended to add the following:
(a)

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By virtue of the United States’ com
mencement of this action and by virtue of

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the Pyramid Lake Paiute Tribe’s intervention as plaintiff in this action for all purposes, and both

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sovereigns being bound by the 1944 Decree of this

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Court and the am endments to the Decree

approved herein, said sovereigns have each acknowledged, and the Court hereby finds and declares,
that said sovereigns are not im mune from and are subject to the jurisdiction of this Court over
petitions filed against them concerning disputes arising under this Decree, including petitions filed

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against said sovereigns for declaratory and prospective injunctive relief for disputes arising under

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the Truckee River Operating Agreement. Such jurisdiction does not extend to any claimfor money

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damages.

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(b)

Although the State of Nevada was not aparty to this action on the date of the

entry of the 1944 Decree, its water rights were se

t forth therein and by virtue of the State of

Nevada’s intervention in this action for all purposes, and being bound by the 1944 Decree of this

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Court and the amendments to the Decree approved herein, the State of Nevada has acknowledged,

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and the Court hereby finds and declares, that said overeign is not immune from and is subject to the
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jurisdiction of this Court over petitions filed against it concerning disputes arising under this Decree,

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including petitions filed against said sovereign for declaratory and prospective injunctive relief for

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(I) disputes arising under the Truckee River Operati g Agreement, and (ii) claims by any aggrieved
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party where such claims allege failure to com ply with the allocations or any other provisions of
Section 204(b) and Section 204(c) of the Settlement Act. Such jurisdiction does not extend to any
claim for money damages.
(c)

By virtue of the State of California’s intervention in this action f r the limited
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purposes of providing this Court with jurisdiction to hear and decide (I) petitions seeking judicial
review of decisions by the Truckee River Special He
aring Officer that resolve disputes arising under
the Truckee River Operating Agreem ent, and (ii) cl aims that allege f ailure to comply with the

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allocations or any other provisions of Section 204(b) and Section 204(c) of the Settlem Act, and
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being bound by the amendments to the Decree approved herein for those limited purposes, the State

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of California has acknowledged, and this Court herebyfinds and declares, that said sovereign is not

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immune from and is subject to the jurisdiction of

this Court over petitions f iled against it f or

declaratory and prospective injunctive relief for those two lim purposes. Such jurisdiction does
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not extend to any claim for money damages.
(d)

The Eleventh Amendment waivers by the States of Nevada and California do

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not extend to any claimfor money damages, nor to any claim of violation of state law or procedures.

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Nor shall the waivers be construed to (i) alter the applicability of state law or procedures to the

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water allocated to the States by the Settlem Act; (ii) alter the applicability of federal or state law
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or procedures to the supervision of safety of dams or to flood control; (iii) alter the applicability of
any federal or state law or procedures in the Settlement Act; or (iv) abrogate the jurisdiction of, or

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any required approvals by, the Nevada State Engineer, the California State W Resources Control
ater

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Board, or the federal or state agencies authorized or directed to implement or carry out such laws

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and procedures. The Eleventh Am
endment waivers by the States of Nevada and California shall not

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take effect until the Truckee River Operating Ag reement has entered into ef fect and becom es

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operative.
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This Order shall become effective when the conditions required for the Truckee River

Operating Agreement to enter into effect have been satisfied.
IT IS SO ORDERED.

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DATED: 30 September 2014

LLOYD D. GEORGE
SENIOR UNITED STATES DISTRICT JUDGE