United States of America v. Walker River Irrigation

Filing 1595

ORDER granting ECF No. 1594 Stipulation. See order pdf for further details. Signed by Judge Miranda M. Du on 7/1/2019. (Copies have been distributed pursuant to the NEF - LH)

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KAREN A. PETERSON, ESQ.
Nevada State Bar No. 0366
ALLISON MacKENZIE, LTD.
402 North Division Street
Carson City, NV 89703
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for the UNITED STATES BOARD
OF WATER COMMISSIONERS and
CHIEF DEPUTY WATER COMMISSIONER/
WATER MASTER

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ALLISON MacKENZIE, LTD.
402 North Division Street, P.O. Box 646, Carson City, NV 89702
Telephone: [phone] Fax: [phone]
E-Mail Address: [e-mail]

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,

Plaintiff-Intervenor,

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In Equity No. C -125

WALKER RIVER PAIUTE TRIBE,

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3:73-CV-00125-MMD-WGC

vs.
WALKER RIVER IRRIGATION DISTRICT,
a corporation, et al.,
Defendants.

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/

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STIPULATION TO RESOLVE NATIONAL FISH & WILDLIFE
FOUNDATION’S PETITION FOR WRIT OF MANDAMUS
DIRECTING CHIEF DEPUTY WATER COMMISSIONER OF THE
UNITED STATES BOARD OF WATER COMMISSIONERS TO
COMPLY WITH WALKER RIVER DECREE; AND [PROPOSED] ORDER

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The NATIONAL FISH AND WILDLIFE FOUNDATION1 by and through its attorneys,

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WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP, and the UNITED STATES BOARD

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OF

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WATER

COMMISSIONERS

(“Board”)

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and

CHIEF

DEPUTY

WATER

The National Fish and Wildlife Foundation purchased the decreed water rights at issue in the Petition for Writ of
Mandamus in the course of its administration of the Walker Basin Restoration Program (“Program”). Subsequently,
management and administration of the Program were transferred to the Walker Basin Conservancy. These entities will
hereafter be referred to collectively as “Petitioner”

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COMMISSIONER/WATER MASTER (“Water Master”), by and through their attorneys, ALLISON

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MacKENZIE, LTD. stipulate to resolve Petitioner’s Petition for Writ of Mandamus Directing Chief

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Deputy Water Commissioner of the United States Board of Water Commissioners to Comply With

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Walker River Decree (ECF No. 1560) as follows:

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1. The Water Master shall immediately start delivering and/or administering Petitioner’s

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Permit 80700 decree rights when in priority. The USGS Walker River Below Yerington

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Weir Gage (No. 10301115) (“Yerington Weir Gage”) will be used to measure water per

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Permit 80700 when in priority during the irrigation season. If the Yerington Weir Gage

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is not funded during the term of this Stipulation, a measuring gage at a suitable location

ALLISON MacKENZIE, LTD.
402 North Division Street, P.O. Box 646, Carson City, NV 89702
Telephone: [phone] Fax: [phone]
E-Mail Address: [e-mail]

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to the Board will be established at the expense of the Petitioner.

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2. The Petitioner agrees to fund the reactivation by the United States Geological Survey

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(“USGS”) of the Walker River at Miller Lane near Yerington Gage (No. 10301120)

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(“Miller Lane Gage”) by July 15, 2019 for a trial period of three irrigation seasons for the

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Water Master’s administration of instream flows under Permit 80700 for the

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approximately ten miles from the Yerington Weir to the USGS Walker River Near

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Wabuska Gage (No. 10301500) (“Wabuska Gage”). In order to reduce the costs of

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operating the Miller Lane Gage, the Petitioner, the Board, and the Water Master agree

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that the USGS will only operate, and will therefore only charge for costs of operation of,

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the Miller Lane Gage during the irrigation season.

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discounted cost-share rate for such gages available to governmental entities. These

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discounts in the costs of gage operation are a principal condition upon which Petitioner

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has relied for its agreement to this Stipulation in light of Petitioner’s position as set forth

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in the Petition and Reply that additional gages are unnecessary for administration of

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Program Water under Permit No. 80700. Should such cost discounts not be available

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during the term of this Stipulation, the parties agree to meet and confer to attempt to

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address Petitioner’s concerns regarding the Miller Lane Gage, including alternative

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means to reduce Petitioner’s financial obligation.

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Petitioner seeks to obtain the

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3. If the Miller Lane Gage is not operational by July 15, 2019, the Water Master reserves

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the right to stop delivering water under Permit 80700 and to not deliver water in priority

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under Permit 80700 until the Miller Lane Gage is in operation.
4. At the conclusion of the three season trial period at the end of the 2021 irrigation season,

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the Water Master and the Petitioner will convene a technical analysis, at which they are

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entitled to include any and all representatives of their choosing, to review and analyze the

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stream flow data generated by the Yerington Weir Gage and the Miller Lane Gage to

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discuss the hydrologic benefit, necessity, and/or effectiveness of the Yerington Weir

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Gage and/or Miller Lane Gage, including for administration of the instream flows under

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ALLISON MacKENZIE, LTD.
402 North Division Street, P.O. Box 646, Carson City, NV 89702
Telephone: [phone] Fax: [phone]
E-Mail Address: [e-mail]

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the Walker River Decree in the future. During the technical review, the Water Master

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and the Petitioner will also discuss the Water Master’s requirement in her November 1,

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2018 letter for additional gages between the Yerington Weir and the Wabuska Gage and

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the continued use of the existing Yerington Weir Gage.

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5. The Petitioner, the Water Master, and the Board reserve their respective rights and

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positions regarding the issues raised in the Petition (ECF No. 1560), Response (ECF No.

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1565) and Reply (ECF No. 1567), and each has not waived the right in the future to seek

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a formal determination from the Court on the issues raised therein going forward after the

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2021 irrigation season.

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6. Based upon this Stipulation, the Petitioner, Water Master and the Board request the Court

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vacate the hearing set for July 10, 2019 in the Court’s Minute Order on June 3, 2019 on

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Petitioner’s Petition for Writ of Mandamus Directing Chief Deputy Water Commissioner

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of the United States Board of Water Commissioners to Comply With Walker River

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Decree (ECF No. 1560).

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Dated: July 1, 2019
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By: /s/ Christopher W. Mixson ______________
Don Springmeyer, Esq.
Nevada State Bar No. 1021
Christopher W. Mixson, Esq.
Nevada State Bar No. 10685
WOLF, RIFKIN, SHAPIRO,
SCHULMAN & RABKIN, LLP
5594-B Longley Lane
Reno, Nevada 89511
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for National Fish & Wildlife Foundation
and Walker Basin Conservancy

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ALLISON MacKENZIE, LTD.
402 North Division Street, P.O. Box 646, Carson City, NV 89702
Telephone: [phone] Fax: [phone]
E-Mail Address: [e-mail]

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Dated: July 1, 2019

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By: /s/ Karen A. Peterson_________________
Karen A. Peterson, Esq.
Nevada State Bar No. 366
ALLISON MacKENZIE, LTD.
402 North Division Street
Carson City, Nevada 89703
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for United States Board of Water
Commissioners and Chief Deputy Water Commissioner/
Water Master

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ORDER

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THE STIPULATION IS APPROVED AND IT IS SO ORDERED.

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1st
DATED this _______ day of

July

, 2019.

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UNITED STATES DISTRICT JUDGE

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Case 3:73-cv-00125-MMD-WGC Document 1594 Filed 07/01/19 Page 5 of 5

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CERTIFICATE OF SERVICE

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I hereby certify that I am an employee of ALLISON MacKENZIE, LTD., and that I
electronically filed the foregoing document with the Clerk of the Court by using the CM/ECF
system, and that service will be accomplished on all counsel and persons requesting notice by the
Court CM/ECF system, which will send notification of such filing to their email addresses.

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And further I certify that I also served a copy of the foregoing document on the following
non-CM/ECF participants by U.S. Mail, postage prepaid:
Bryan Bowker
U.S. Department of the Interior
Bureau of Indian Affairs – Western Region
Division of Natural Resources, MS-460
2600 North Central Avenue, 4th Floor
Phoenix, AZ 85004

Tim Wilson, P.E.
Dept. of Conservation & Natural Resources
Division of Water Resources
901 South Stewart Street #2002
Carson City, NV 89701

Walker River Irrigation District
P.O. Box 820
Yerington, NV 89447

California Water Resources Department
1416 Ninth Street
Sacramento, CA 95814

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ALLISON MacKENZIE, LTD.
402 North Division Street, P.O. Box 646, Carson City, NV 89702
Telephone: [phone] Fax: [phone]
E-Mail Address: [e-mail]

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Bradley Crowell, Director
Dept. of Conservation & Natural Resources
State of Nevada
901 South Stewart Street #1003
Carson City, NV 89701

DATED this 1st day of July, 2019.

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/s/ Nancy Fontenot
NANCY FONTENOT

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4811-6685-9163, v. 1

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