United States of America et al v. Alpine Land & Reservoir Company et al

Filing 19

ORDER denying 9 Motion to Stay and setting briefing schedule. Please see attached for specific details and deadlines. Signed by Judge Lloyd D. George on 3/26/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
Equity No. D-183-LDG

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Plaintiff,

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v.

Case No. 3:73-cv-00183-LDG
Subfile No. 3:73-cv-00211-LDG

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ALPINE LAND & RESERVOIR CO., et
al.,

ORDER

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Defendants.
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Re:

Nevada State Engineer Ruling
No. 6226

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The State Engineer moves to stay (#9) this action, arguing that the petitioner,

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Stillwater Farms, also filed a petition for judicial review in the Tenth Judicial District Court

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for the State of Nevada. The United States of America opposes the motion, and is joined

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in opposition by the Truckee-Carson Irrigation District. Having considered the arguments

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of the parties, the Court will deny the motion and will instead set a briefing schedule for this

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matter.

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The State Engineer argues that the Court should defer to the state court’s
jurisdiction pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S.

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800 (1976). However, this Court has exclusive jurisdiction over appeals of State Engineer

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rulings on water rights subject to the Alpine Decree because it was this Court that first

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established jurisdiction over the res — Carson River water rights –– when it adjudicated the

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Alpine Decree. See United States v. Alpine Land & Reservoir Co., 174 F.3d 1007, 1013

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(9th Cir. 1999) (“Alpine III”). Under the Alpine and Orr Ditch decrees, the administration of

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water rights generally follows Nevada state law. See United States v. Alpine Land &

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Reservoir Co. [“Alpine II”], 878 F.2d 1217, 1223 (9th Cir. 1989); United States v. Orr Water

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Ditch Co., 914 F.2d 1302, 1308 (9th Cir. 1990). Nevada state law recognizes that

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jurisdiction is meant to lie in the federal court in this instance, by providing that one “feeling

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aggrieved by any order or decision of the State Engineer . . . on stream systems where a

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decree of court has been entered,” must initiate action for review of the State Engineer

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decision “in the court that entered the decree.” Nev. Rev. Stat. § 533.450(1). A court

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retains exclusive jurisdiction over the administration of the water decrees it adjudicates.

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See State Engineer of State of Nevada v. South Fork Bank of Te-Moak Tribe of W .

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Shoshone Indians of Nevada, 339 F.3d 804, 809 (9 th Cir. 2003).

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While the State Engineer argues that its ruling concerns “a state permit right to drain

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water that may not be enforced against or affect the decree rights adjudicated by this Court

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in any way,” the petition for review goes beyond this narrow argument. Stillwater Farms

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seeks to reverse the denial of Application 47786. In so doing, the petitioner concedes that

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the United States Fish and W ildlife Service has permits to appropriate water in the

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Newlands Reclamation Project, but argues that the USFWS must call for the water.

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Perhaps presciently, the State Engineer stated in its ruling that “if [Stillwater Farms] truly

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believes that illegal use of water is taking place within the Project without the benefit of a

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water right, that issue should be taken to the decree court w ith jurisdiction and not resolved

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by the State Engineer.” Stillwater has indicated that its appeal of the denial of Application

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47786 concerns decreed waters rights, thus creating exclusive jurisdiction within this Court.
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In addition, in appealing the limited permit granted for Application 48476, Stillwater

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Farms asserts Ruling #6226 improperly limits the scope of protection to be afforded to the

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water right that was granted, and asserts that limited scope of protection afforded by the

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State Engineer should be reversed to allow protection against, inter alia, illegal diversions.

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In light of State Engineer’s language concerning the illegal use of water in regards to the

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the USFWS diversion of water, and Stillwater Farms’ assertion that the USFWS can only

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exercise its decreed rights by making a call, Stillwater Farms has further invoked the

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exclusive jurisdiction of this Court over its appeal.

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Therefore, for good cause shown,

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THE COURT ORDERS that the State Engineer’s Motion to Stay (#9) is DENIED;

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THE COURT FURTHER ORDERS:

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a.

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That Stillwater Farms (Petitioner) shall file its opening brief within 40 days of
entry of this order.

b.

That the Nevada State Engineer, and any other Real Party in Interest

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(Respondents) opposing the petition for judicial review shall file their briefs

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within 30 days after service of Petitioner’s brief.

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c.

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That Petitioner may file a reply brief within 14 days after service of opposition
briefs.

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That the briefs of the parties shall comply, to the extent practicable, with

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Federal Rule of Appellate Procedure 28; provided, however, that the length of

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the principal briefs shall not exceed 30 pages and the reply briefs shall not

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exceed 15 pages, exclusive of pages containing the table of contents, tables

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of citations, and any addendum or exhibits. In addition, the form of the briefs

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shall comply with Local Rules 10-1 through 10-5.

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e.

That each party shall prepare and file, with its respective brief, an appendix
that shall contain any portion of the papers or record considered by the State
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Engineer that the party believes is necessary for the Court to review in

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considering that party’s arguments.

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f.

That any motions seeking leave for additional time, leave to file over-length

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briefs or other similar motion shall be filed no less than seven days prior to

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the scheduled submission date of the brief for which such leave is sought.

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g.

That, in addition to the filing of original briefs with the Clerk of the Court, each

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party shall deliver a courtesy copy of its brief and appendix to the Chambers

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of the Honorable Lloyd D. George, Lloyd D. George U.S. Courthouse, 333

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Las Vegas Boulevard South, Room 6073, Las Vegas, Nevada, 89101.

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DATED this ______ day of March, 2014.

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Lloyd D. George
United States District Judge

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