Heavirland v. State

Heavirland v. State, 311 P.3d 813 (Mont. 2013) (holding (i) Montana case law applies retroactively in determining sufficiency of evidence rebutting the presumption of abandonment of water rights founded on a prolonged time of nonuse, and (ii) claimants provided sufficient evidence to defeat the presumption of abandonment and excuse twenty-four years of nonuse of irrigation rights).

Frank Truchot filed and perfected the subject water right in 1904. The right granted Truchot water from Muddy Creek for irrigation. Christina and Henry Weist purchased the water right in 1913. Their son, Ray Weist, took over the farm and continued to utilize the water right for flood irrigation, when available, from the mid-1940’s until 1961. Utilization of the right was particularly difficult because of the slope and heavy clay soil of the Weists’ fields. Ray stopped irrigating in 1962. His son, Lyle, stated that his father’s age and the inefficiency of flood irrigation were the reasons Ray stopped irrigating. Lyle also testified that, in the event that they used pivot irrigation in the future, Ray had three-phase power connected to the farm.

Lyle returned to and purchased the family farm in 1975. After researching the farm’s water rights history, in 1981 Lyle and his wife, Linda, filed a statement of claim in the Montana general stream adjudication. Lyle installed a fourteen-tower Valley Center Pivot and resumed irrigation in 1981–82. He continued to use the pivot until 1991, when he sold the water right and property to Loren and Sue Heavirland. The Heavirlands thereafter irrigated every year but one when water was unavailable.

Lyle and Linda Weist’s claim was in the Temporary Preliminary Decree for Basin 41O with attached Department of Natural Resources and Conservation (“DNRC”) issue remarks. The remarks noted that the 1962 Teton County Water Resource Survey and the 1978 USDA Aerial Photography indicated zero acres irrigated at the farm. Meetings between DNRC and the Weists did not resolve the issue remarks. DNRC Water Resource Specialist Kraig Van Voast (“water master”) reviewed the documentation and found that he did not have information that could resolve the lack of proof of irrigation from Muddy Creek. The water master therefore joined the State of Montana to the adjudication, pursuant to Mont. Code Ann. § 85-2-248(7) (2013). The State moved for partial summary judgment regarding the issue of abandonment, and the water master granted the motion. The water master found that the period of nonuse from 1962 to 1982 raised a rebuttable presumption of abandonment; this finding moved the burden of proof to Lyle Weist and the Heavirlands (“claimants”) to rebut the presumption.

At an evidentiary hearing, the water master found that the claimants had abandoned the water right, stating that the claimants’ evidence did not overcome the burden to rebut the presumption of intent to abandon the water right. Claimants then filed an objection with the Chief Judge of the Montana Water Court (“water court”). Claimants presented two central arguments: (i) the law as it stood in 1973 applied to the abandonment of then-existing water rights, meaning the water master erred in retroactively applying 79 Ranch, Inc. v. Pitsch, 666 P.2d 215 (Mont. 1983), to their existing water right; and (ii) even if 79 Ranch applied, the claimants offered evidence sufficient to rebut the presumption and excuse the twenty years of nonuse.

The water court first held that 79 Ranch applied to the case at hand. 79 Ranch states that a long period of nonuse creates a presumption of intent to abandon a water right and causes the burden of explaining the nonuse to shift to the claimant. 79 Ranch also requires that a claimant present concrete facts or conditions, not just wants and wishes to utilize the right, to rebut the presumption of abandonment. The water court then applied 79 Ranch and concluded that the water master erred in not finding that the evidence was sufficient to rebut the presumption of intent to abandon. The State appealed to the Montana Supreme Court (“Court”).

The first question the Court examined was whether the water court correctly found that 79 Ranch applied to the abandonment of a water right that predated that case. The Court noted that the 1973 Montana Constitution, as well as the Water Use Act, protects “existing rights.” But the Court went on to hold that 79 Ranch did not run counter to the state constitution’s protection of those rights and did not change or create new law. Rather, 79 Ranch clarified the standard for abandonment, meaning its retroactive application did not offend the claimants’ rights or Montana law.

The second question the Court addressed was whether the water court properly held that the claimants presented adequate evidence to show that they did not intend to abandon their water right. The State argued that the evidence presented was insufficient because (i) the claimants did not offer adequate evidence to show that Ray stopped irrigating his property because of his age or health, and (ii) the connection of three-phase power to the property did not necessarily indicate intent to install a pivot irrigation system.

The Court held that the claimants’ presentation of the difficulty of flood irrigation on the property, coupled with Lyle’s testimony regarding his father’s age and health, were sufficient to overcome the presumption of abandonment. The Court stated that there was no reason to doubt Lyle’s statements about his father and the property. The Court also found that Ray’s installation of a pivot irrigation system was proof enough of his father’s belief that Lyle would want to use that type of system. The Court also stated that Lyle’s continued irrigation with the new system supported the notion that the Weists did not intend to abandon the water right. Weighing the evidence presented in its totality, the Court held that the water court correctly concluded that the water master erred in finding a lack of sufficient evidence to rebut the presumption of intent to abandon the water right.

The Court therefore affirmed the water court’s decision to apply 79 Ranch retroactively. The Court also affirmed the water court’s conclusion that the claimants presented evidence that was sufficient to justify the decades-long nonuse and therefore to rebut the presumption of abandonment.


The title picture is of a Montana ranch and is licensed under the Creative Commons Attribution 2.0 Generic License to Tony Hisgett, who does not in any way endorse this blog.

Yellow Jacket Water Conservancy Dist. v. Livingston, 2013 WL 6800619 (Colo. 2013) (holding the Water Conservancy Act’s holdover provision, containing neither temporal nor reasonableness requirements, allowed district’s holdover directors to remain in office past their original term as de jure officers with authority to act on behalf of the district).

The Yellow Jacket Water Conservancy District (“Yellow Jacket”) held conditional water rights to several bodies of water located in northwest Colorado. Yellow Jacket’s board of directors met on September 29, 2009, and authorized the filing of diligence applications with the water court. On the date of the meeting, Yellow Jacket’s board of directors, normally a nine-member panel, had one vacancy as well as four directors whose terms had expired but who were still performing their official duties pending appointment of qualified replacements. After reviewing Yellow Jacket’s diligence applications, several parties (hereinafter “Livingston”) objected to the board’s authority to approve the filing these documents. Livingston argued that Yellow Jacket could not have assembled a valid quorum because only three of the nine directors were serving unexpired terms on the date of the board meeting. Livingston filed for summary judgment asking the Rout County District Court, Water Division 6 (“water court”) to cancel Yellow Jacket’s conditional water rights.

While the water court recognized that the WCA contained a holdover provision, the court relied on case law from other states in finding that the four holdover directors had remained in their positions for an unreasonable amount of time past the expiration of their terms. The four holdover directors’ terms expired on October 18, 2008, nearly one year before the board meeting. Consequently, the court found that Yellow Jacket’s board had not assembled a valid quorum and lacked the authority to approve the filing of the diligence applications. As a result, the water court granted Livingston’s motion for summary judgment, deeming Yellow Jacket’s conditional water rights abandoned and cancelled.

On appeal, the Colorado Supreme Court (“Court”) began its analysis by reviewing the purpose and procedure of Colorado’s Water Conservancy Act (“WCA”). In order to maintain a conditional water right, the holder is required to file an application for a finding of due diligence every six years. These applications help ensure that the holder is continuing to work toward completion of the project that initially led to the conditionally decreed appropriation. The water court then publishes the applications, allowing interested parties to contest the continuation of these conditional water rights.

The Court next examined the holdover provision of the WCA. Looking at the plain language of the statute and construing that language according to rules of grammar and common usage, the Court found that the WCA unambiguously allows a director to hold office for the original term, as well as any interim term, without limitation, pending the appointment of a duly qualified successor. The Court noted its longstanding position that when a statute provides that an incumbent may remain in office until a successor is duly qualified, the incumbent remains as a de jure officer, with all the authority vested in such position. Finding no legislative intent to impose temporal or reasonableness requirements on holdover terms, the Court declined to read either limitation into the statute.

The Court held that the water court had erred in its reliance on a standard of reasonableness, rather than the plain language of the holdover provision of the WCA. Accordingly, the Court reversed the water court’s decision to cancel Yellow Jacket’s conditional water rights and remanded the case for further proceedings.


The title picture is of the White River, which flows through the Yellow Jacket Water Conservancy District.

Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, No. 2:08CV447, 2013 WL 6091882 (E.D. Va. Nov. 18, 2013). (holding (i) the Corps’ extensive factual findings were not arbitrary and capricious and (ii) the Corps’ ultimate determination that a significant nexus existed between the relevant wetlands and the Northwest River was sufficiently persuasive to subject the wetlands to the Clean Water Act).

This case involved 4.8 acres of wetlands (“subject wetlands”) located in Chesapeake, Virginia for which Precon Development Corporation (“Precon”) sought a permit to develop. The development area contained a total of 658 acres, about half of those acres being wetlands, and 166 of the wetland acres flowed into the Saint Brides Ditch (“the Ditch”), including the subject wetlands. The Ditch ran along the western boundary of the wetlands area and fed into the Northwest River (“the river”). The second tributary to the river consisted of relatively permanent water that ran in the southwest corner of the wetlands and flowed into the Ditch. From there, the Ditch flowed to Pleasant Grove Swamp, joined Hickory Ditch, and finally entered the river.

The United States District Court for the Eastern District of Virginia (“district court”) received the case on remand from the United States Court of Appeals for the Fourth Circuit (“court of appeals”). The court of appeals determined the original administrative record contained insufficient information to evaluate the United States Army Corps of Engineers’ (“Corps”) conclusion that a significant nexus existed between the wetland and the river. Thus, on remand, the district court examined the Corps’ improved and amended record in accordance with the court of appeals’ direction.

The court of appeals based their suggestions for remand upon the “significant nexus” test in Justice Kennedy’s concurrence in Rapanos v. United States. Before remanding the case, the court of appeals provided guidance to the Corps regarding the nature of the report needed for reconsideration. The court of appeals noted that the report would not need to include laboratory tests or quantitative measurements but could instead include qualitative evidence like expert testimony about the functions of the relevant wetlands, adjacent tributaries, and the river. The court of appeals specifically stated that the administrative record should adequately address (i) the condition of the Northwest River, (ii) the actual flow rates of the two tributaries­, and (iii) the significance of that flow. The court of appeals also charged the Corps with documenting how the wetlands significantly, rather than insubstantially, affected the integrity of the navigable waters.

After the court of appeals remand, the district court also remanded the case to the Corps for additional administrative review. After the Corps developed a new record, the district court considered cross-motions for summary judgment. A magistrate judge first heard oral arguments for the motions before filing a Report and Recommendation (“R&R”) with the district court. The R&R recommended that the district court grant the Corps’ motion for summary judgment. Precon subsequently filed an objection to three of the R&R’s findings: (i) the condition of the Northwest River, (ii) the flow of the relevant tributaries, and (iii) the function of the wetlands in relation to these tributaries and the river. The district court analyzed each in turn.

In considering the condition of the river, the district court noted that the river was an impaired body of water due to low dissolved oxygen (“DO”) levels. Low DO levels are generally the result of high levels of nitrogen or phosphorus. Precon asserted that the evidence did not support a finding of excessive nitrogen because the record found only phosphorus as a nutrient of concern. As such, Precon contended that any role the Precon wetlands and similarly situated wetlands have on nitrogen cycling did not significantly impact the chemical or biological quality of the river.

The district court found that the record did not support Precon’s logic. The court determined that excess nutrient inputs from the wetlands cause eutrophication, which contributes to low DO levels in the river. Further, the court of appeals previously found that the wetlands and their adjacent tributaries trap sediment and nitrogen. Based on this record, the district court made two determinations. First, the court determined that the Corps’ finding that the wetlands prevent additional nutrients from reaching the river was not arbitrary and capricious because the record showed that both nitrogen and phosphorus levels were important to downstream water quality, and that the wetlands trap sediment and nitrogen. Second, the district court noted that it was not necessary for the Corps to demonstrate that there were high nitrogen levels in the river and its relevant tributaries on remand – it only needed to make general findings about the river’s impairment. Because the Corps provided evidence from both the Virginia Department of Environmental Quality and its own experts that showed that the river is an impaired body of water, the district court found that the Corps satisfied the court of appeals’ mandate to consider the condition of the relevant navigable water.

The district court next considered evidence regarding the flow of the river’s tributaries. Precon asserted that the magistrate judge’s evaluation of the flow in the ditch was meaningless. The district court interpreted Precon’s objection to be that the Corps arbitrarily relied upon hypothetical rather than actual flow rates. However, the district court found that the Corps’ reliance on hypothetical flow rates was appropriate and rational. Due to the lack of flow gauges in the river, the Corps had no actual flow rates, making a direct comparison of the flows from the river and the ditch impossible. The district court found that the Corps appropriately analyzed the available data points on the wetland and the navigable waterway and properly incorporated this information into the significant nexus determination. As the court of appeals instructed, the district court applied Skidmore deference and agreed that the analysis possessed the power to persuade.


Finally, the district court considered the Corps’ findings regarding the functions of the wetlands in relation to the tributaries and the river. Precon argued that the Corps’ experts simply expressed their opinions rather than provided quantitative and qualitative evidence to support a finding of a significant nexus. The district court found this objection meritless. The district court found that the Corps properly engaged in a lengthy discussion about the scientific validity of Precon’s experts’ findings and the conclusions drawn therefrom. The district court determined that Precon fundamentally misunderstood the district court’s role when faced with divergent expert opinions.  The district court relied upon the reasoning in Marsh v. Oregon Natural Resource Council, which states that courts should defer to the informed discretion of the responsible federal agencies. The Corps’ administrative record also emphasized the wetlands’ ability to support wildlife and the role tributaries performed in regulating water flows and quality. The district court therefore found that the Corps provided ample persuasive support for its finding of a significant nexus between the relevant wetlands and the Northwest River. The district court again found that the Corps’ determination was not arbitrary and capricious and that the ultimate determination of a significant nexus was highly persuasive.

Accordingly, the court adopted the magistrate judge’s R&R, granted the Corps’ motion for summary judgment, and denied Precon’s motion for summary judgment.


The title picture is of wetlands in Mattaponi Wildlife Management Area, located in Virginia. The picture is attributed to the U.S. Fish and Wildlife Service.

United States v. Hamilton, 952 F. Supp. 2d 1271 (D. Wyo. 2013) (finding on a motion for partial summary judgment that (i) no genuine dispute existed that Slick Creek is a water of the United States subject to the Clean Water Act; but (ii) a genuine dispute of material fact existed regarding whether Hamilton’s farming activities precluded application of the Clean Water Act’s recapture provision).

This is a case of first instance before the United States District Court for the District of Wyoming (“court”) regarding David Hamilton’s activities when he filled part of Slick Creek (“Creek”) and altered the course of the Creek’s progression. The Government brought suit against Hamilton under the Clean Water Act (“CWA”) because Hamilton filled Slick Creek without first obtaining a discharge permit from the Army Corps of Engineers (“Corps”). The Government filed for summary judgment on its prima facie case. Hamilton contested two major issues: (i) whether Slick Creek is a water of the United States that is subject to the CWA, and (ii) whether Hamilton’s filling activities were subject to any of the exemptions to the CWA’s permit requirements.

Slick Creek is a waterway sourced mainly by irrigation runoff but also from natural rainfall and melted snow. The Creek runs from Worland, Wyoming into the Big Horn River, which flows into the Yellowstone River and eventually the Missouri River. In 2005 Hamilton dug up the Creek so that it would run through a straight channel across his property. This allowed him to plant new crops where the Creek used to flow. The EPA subsequently discovered that Hamilton filled the Creek without the required discharge permit under 33 U.S.C. § 1311(a). The EPA then sent a compliance order to Hamilton, but he refused to return the Creek to its previous condition. Consequently, the Government filed suit and sought summary judgment to compel Hamilton to restore the Creek and pay civil fines.

The court first considered whether the Government was entitled to summary judgment on the determinative issue of whether the Creek was a navigable water of the United States. The court concluded that the Creek meets the requirements of a water of the United States under the Rapanos v. United States plurality test because, as the Government contended, it is a “relatively permanent, flowing body of water that connects to a traditional interstate navigable water.”

The court agreed with the Government because the evidence showed that the Creek had been full every year since 1962 and that it lacked vegetation along the waterway, as is consistent with yearly water flow. The court also concluded that the Creek connected to a navigable waterway because the Creek drains into the Big Horn River, which is navigable in fact. The court rejected Hamilton’s argument that the Creek was manmade because it was mostly filled by farming irrigation by noting that prior precedent – namely, Rapanos – shows that manmade water bodies can be waters of the United States. Additionally, the court rejected Hamilton’s argument that the Creek is not permanent because it fluctuates with farmers’ irrigation activities by noting that, regardless of the changing volume of flow, the Creek flowed continuously year-round. Consequently, the court granted the Government’s request for summary judgment on this issue because the Creek is navigable and therefore subject to the CWA.

The court next considered whether Hamilton was liable under the “recapture” provision of the CWA.The CWA contains a general prohibition against any discharge of a pollutant or fill material into waters of the United States without a permit. The CWA, however, contains exceptions for farmers carrying out normal activities and for the maintenance of an irrigation ditch. Hamilton argued his actions fell under both of these exceptions. The Government, however, argued that the CWA’s “recapture” provision trumps the exceptions in this case. The CWA recapture provision requires that, even if someone is exempted under those activities, they must obtain a discharge permit if the activity brings an area of the navigable waters into a new use that impairs water flow. Hamilton presented testimony that prior landowners used the filled portions of the Creek for farming activities. The court concluded that, given this evidence, it was still disputable whether the land Hamilton filled was previously farmland and therefore whether the recapture provision applied.

Accordingly, the court granted the Government’s request for summary judgment in part and found that the Creek is a water of the United States. However, the court denied the Government’s request for summary judgment on the applicability of the CWA’s recapture provision.


This title picture is of of the Bighorn Mountains located in Wyoming. This picture is attributed to Conniemod under the Creative Commons Attribution-Share Alike 3.0 Unported license, and the use this pictures does not in any way that suggests that Conniemod endorses this blog.

Hughes v. Hughes

Hughes v. Hughes, 305 P.3d 772 (Mont. 2013) (holding (i) the lower court had jurisdiction to adjudicate the alleged stock water easement; (ii) partition of land does not extinguish existing water rights on other land unless the parties intended such a result; and (iii) an implied easement was the appropriate remedy to allow continued use of the stock water right).

The Supreme Court of Montana (“Court”) reviewed four complaints Jack and Shirley Hughes (“Jack”) filed against their son, Johnny Hughes (“Johnny”). The Tenth Judicial District Court (“lower court”) consolidated Jack’s complaints, which concerned money he loaned to Johnny, an alleged stock water easement following a partition of jointly-owned land, and a disputed pasture lease. The lower court found in favor of Johnny on all matters except the water rights issue. Jack appealed the non-water issues and Johnny cross-appealed the stock water issue.

These disputes arose in the wake of a falling-out between Jack and Johnny and the subsequent referee-supervised property partition. In separate deeds dated 1984, 1985, and 1986, Jack granted Johnny an undivided 56% interest in Melby Ranch but retained a life estate in the buildings and improvements. Thus, at the time of partition in 2011, Jack and Johnny owned Melby Ranch as tenants in common. In light of their falling-out, the parties engaged three referees to partition the land. Jack and Johnny agreed that Johnny would receive the section of Melby Ranch that included Flatwillow Creek. However, they did not specify how this partition would affect Jack’s stock water right that he used to sustain his cattle business on land not subject to the partition. The parties agreed to fence their boundaries to better reflect the partition. In his complaint, Jack sought an easement either to allow his cattle access to Flatwillow Creek or to construct a pipe to bring water across Johnny’s parcel. Johnny opposed, arguing that the partition agreement did not provide for a stock water easement.

The lower court granted Jack a water gap through the fence and over Johnny’s land, but in the same order, determined that it lacked jurisdiction over the water issue. When the parties asked for clarification, the lower court stated that it did not believe it had jurisdiction to grant the water gap. Johnny thereafter appealed the original order granting Jack a water gap.

After resolving the non-water issues, the Court discussed the lower court’s jurisdiction and found it well established that district courts have jurisdiction to supervise already-adjudicated water rights. Jack possessed rights to use Flatwillow Creek for stock water through J&S Family Limited Partnership. The Court also stated that, regardless of the lower court’s jurisdiction over water rights, an easement is a legally distinct property right. For these reasons, the Court concluded the lower court possessed the jurisdiction to determine whether Jack held an implied easement to continue using Flatwillow Creek.

Jack argued he possessed an implied easement by existing use over Johnny’s part of the partitioned land. The Court first recited the three elements for the creation of an easement by existing use: (i) prior unity of ownership of the two parcels, (ii) severance, and (iii) an apparent, continuous, and reasonably necessary use for Jack’s beneficial use and enjoyment. Neither party disputed these factors, and the Court therefore held that Jack originally owned both parcels, the partition severed that ownership, and access across Johnny’s section was reasonably necessary for Jack to exercise his stock water right.

The crux of the dispute rested on whether Jack and Johnny intended for Jack’s use of Flatwillow Creek to continue after the land partition. Jack did not have access to any other source for stock water besides Flatwillow Creek. The Court observed that Johnny, at the time of the partition negotiations, knew Jack possessed the water right and had no other source from which to use it. The Court also noted that nothing in the record suggested Jack intended to stop using Flatwillow Creek for his cattle. The Court paid particular attention to the fact that if the partition excluded Jack from exercising his water rights, it would be inequitable and could not stand. As a result, the Court held that the record supported Jack’s implied easement by existing use because both he and Johnny intended the stock water use to continue after severance of the two parcels.

In opposition, Johnny further argued that Jack surrendered his water rights to Flatwillow Creek when he agreed to the partition. As Johnny argued, the partition identified and valued the two parcels of land as “dry pastureland” and “irrigated land.” Jack granted Johnny all of the available irrigated land, including Flatwillow Creek. As a result, Johnny argued that Jack consciously gave up his stock water right. However, the Court disagreed and found that Johnny’s argument overlooked the fact that Jack’s water rights benefited land not subject to the partition.

The Court therefore concluded that, by agreeing to the partition, Jack did not intend to give away his water rights used on land not included in the agreement. The Court remanded the issue to the lower court to determine the best and most equitable way to provide Jack access to Flatwillow Creek.


The title picture is of a Montana ranch and is licensed under the Creative Commons Attribution 2.0 Generic License by Tony Hisgett, who does not in any way endorse this blog.

Firebaugh Canal Water Dist. v. U.S., 712 F.3d. 1296 (9th Cir. 2013) (holding that the Department of the Interior is only required to provide drainage for lands within the San Luis Unit, has discretion to choose a drainage solution other than an interceptor drain, and is not liable under the Federal Tort Claims Act for failing to provide drainage to downslope lands).

In 1960, Congress passed the San Luis Act (“Act”), which authorized the Department of the Interior (“Interior”) to create and maintain the San Luis Unit (“Unit”).  The Unit was to provide irrigation water for five hundred thousand acres of land in three California counties as part of the Central Valley Project, the largest water reclamation project in the nation.  The Act required the Interior to construct a dam, reservoir, pumping plants, drains, and other facilities in the Unit, and authorized the Interior to participate in the construction of drainage facilities to serve the general areas affected by the Unit.  Concerned that the Unit would increase regional drainage requirements, Congress conditioned the creation of the Unit on adequate assurance that the State of California would provide for a master drainage outlet and the Interior constructing an interceptor drain.  Although California declined to provide a master drainage outlet, the Interior began constructing the interceptor drain. The Unit started making water deliveries in 1967.

However, the inability of federal and state governments to agree on environmental standards prevented the Interior from completing the endpoint of the interceptor drain.  Awaiting approval to finish the interceptor drain, the Interior constructed the middle portion of the drain and the Kesterson Reservoir (“Kesterson”) to receive the Unit’s output in 1975.  In 1983, studies revealed elevated levels of selenium in Kesterson drainage water.  The Interior closed Kesterson and the drains leading to it in 1986.  Nonetheless, the Interior continued to irrigate land within the Unit.

Several parties affected by the lack of drainage filed claims in the District Court of the Eastern District of California (“district court”), with the Firebaugh Canal Water District (“Firebaugh”) as the only party located outside the Unit.  In 1995, the district court heard these claims consolidated under Firebaugh and ruled that the Interior must provide drainage to the Unit.  The district court ordered the Interior to pursue a discharge permit from the California Water Resources Control Board for the completion of the interceptor drain.  The Interior appealed, and the Ninth Circuit Court of Appeals (“court”) heard Firebaugh I in 2000.  The court upheld part of the district court’s ruling, requiring the Interior to provide drainage within the Unit.  However, the court held that the district court could not override the Interior’s discretion on how the drainage requirements are satisfied.  Accordingly, the court gave the Interior authority to pursue alternative options rather than complete the interceptor drain. The court remanded the case back to the district court for further proceedings.

On remand, the district court ruled consistent with the court’s holding.  The district court ordered the Interior to provide drainage to the Unit immediately but gave the Interior broad discretion in selecting a drainage solution.  The district court required only that the Interior submit a plan describing anticipated actions and milestones.  After a reevaluation of the Unit’s drainage needs, the Interior announced in 2007 an in-valley solution that relied on water treatment and reuse, evaporation ponds, and restricting irrigation to some in-Unit areas.  The Interior had secured $7 million in appropriations toward the in-valley solution as of 2011, although the project is estimated to total $2.69 billion.

After all parties located inside the Unit settled with the Interior in 2002, Firebaugh was the only plaintiff to initiate a new suit against the Interior.  Firebaugh presented two pertinent claims.  First, Firebaugh sought damages under the Federal Tort Claims Act (“FTCA”), arguing that the Interior’s failure to provide drainage constituted a nuisance and trespass.  Second, Firebaugh, invoking the Administrative Procedure Act, argued that the Interior’s failure to provide drainage constituted (1) a final agency action that was arbitrary, capricious, an abuse of discretion, and otherwise, not in accordance with law; and (2) agency action unlawfully withheld or unreasonably delayed.  The district court dismissed Firebaugh’s first claim on two grounds, holding that under California law water, suppliers are not required to prevent drainage onto downslope lands, and that the Interior was immune from a FTCA claim due to the discretionary function exception.  The district court rejected Firebaugh’s second claim as well, holding that the Interior’s only discrete duty was to provide drainage within the Unit, and although its actions were frustratingly slow, the Interior’s actions did not presently constitute an unreasonable delay.  Firebaugh appealed the district court’s decision.

Addressing the first issue on appeal, the court reviewed the district court’s determination that both the private analog requirement and the discretionary function exemption barred Firebaugh’s claim.  Under the private analog requirement, a government agency is liable for negligence only if a private person would be liable for similar acts.  With no precedent on point, the court assumed the existence of a private analog and proceeded to the discretionary function analysis.  To determine if the discretionary function exemption applied, the court inquired whether the challenged actions involved an element of judgment or choice, and whether that judgment was the kind of discretionary function that the exemption was designed to shield governmental actions based on public policy concerns.  Firebaugh argued that the exemption should not apply because the Act imposed a duty on the Interior that was divorced from discretion.  The court rejected this argument based on its Firebaugh I ruling, holding that the Interior had broad discretion in providing a drainage solution.  Furthermore, the court reasoned that the Interior’s actions were grounded on multiple public policy concerns, and therefore, the discretionary function exemption applied, negating Firebaugh’s first claim.

For Firebaugh’s second claim to prevail, the court required Firebaugh to demonstrate that the Interior failed to take a discrete action that it was legally required to take.  Firebaugh argued that the Interior failed to make two specific actions required by the Act: (1) to provide drainage to lands outside the Unit, and (2) to provide drainage to lands inside the Unit.  The court rejected these assertions.  First, the court held that the Act merely authorized the Interior to construct drainage facilities outside the Unit, with no actual requirement to do so.  The court reasoned that the Interior’s discretion ended when it decided to construct the Unit as authorized by the Act.  Congress never gave the Interior the discretion to choose necessary drainage facilities, so providing drainage to lands outside the Unit was not a discrete action that the Interior was required to take.  Second, although the court recognized that progress on the in-Unit drainage solution was slow, the court held that the Interior was not withholding nor unreasonably delaying drainage within the Unit.  The court reasoned that the scope and cost of the project was the root of the delay, not the Interior failing to take action.  The court recognized that at some point the Interior’s sluggish progress could constitute a failure to provide in-Unit drainage; however, the court concluded that that point had not yet been reached.  Therefore, Firebaugh’s second contention failed as well.

The court affirmed the district court’s ruling that the Interior was not required to provide drainage to lands outside the Unit, the Interior was not unlawfully withholding nor unreasonably delaying drainage within the Unit, and that the discretionary function exemption prohibited a federal tort claim against the Interior.


The title picture is of Lake Casitas, a reservoir located in southern California.

Pyramid Lake Paiute Tribe of Indians v. Nevada, 724 F.3d 1181 (9th. Cir. 2013) (holding that diversion of water to wetlands for the preservation of waterfowl habitat is not irrigation within the meaning of a decree governing water rights but rather constituted a wildlife use; wildlife use is separate from irrigation use).

The Truckee and Carson Rivers flow through the Truckee River Basin.  The flow from the Truckee River terminates in Pyramid Lake, where it provides the sole source of water for the Pyramid Lake Paiute Tribe (“Tribe”).  The Nevada Department of Wildlife (“NDOW”) and the Nevada Waterfowl Association (“NWA”) applied to transfer both consumptive and non-consumptive water rights from agricultural land in the Newlands Reclamation Project (“Project”).  The Project irrigated a substantial amount of land with water from the Truckee and Carson Rivers in order to turn wasteland into farmland.  Prior to the Project implementation, over irrigation was destroying the lands now served by the Project.  The Reclamation Act of 1902 authorized the Secretary of the Interior to develop the Project in order to prevent the land from becoming wasteland.  Additionally, Congress authorized Nevada conservation agencies to acquire and transfer water rights within the Project.

The NDOW and NWA sought to transfer the water from the Project to a wetland located at the end of the Carson River in order to support the growth of plants used by wildlife and thereby sustain the wildlife habitat.  If approved, the demand for water from the Truckee River would increase, thereby reducing the water flow into Pyramid Lake.  The Tribe and the United States disputed the application, contending that the use was not for irrigation within the meaning of the Alpine Decree (“decree”) that governed water rights in the Project.  The decree does not permit transfer of the non-consumptive portion of water rights to a use other than irrigation.

The issue was whether the NDOW and NWA’s proposed use constituted irrigation as defined by the decree.  The NDOW and NWA argued that the intended water use constituted irrigation because the water would support plant growth.  The Tribe and United States claimed that NDOW and NWA did not seek to transfer the rights for irrigation purposes but rather for the purposes of sustaining wildlife, not plant growth.  The State Engineer (“engineer”) approved the transfer application and found that the proposed water use constituted irrigation use because it involved plant growth.  The Tribe appealed to the District Court for the District of Nevada (“district court”).  The district court disagreed with the engineer, finding that the proposed water diversion for waterfowl habitat was not included in the decree’s definition of irrigation.  The NDOW and NWA appealed to the Court of Appeals for the Ninth Circuit (“court”).

The district court noted that irrigation use as stated in the decree was only applicable to agricultural uses, specifically uses to grow cash crops and pasture, finding the NDOW and NWA unable to prove otherwise.  The decree incorporated portions of Nevada law, including the Nevada water code (“code”).  The code defines wildlife purposes to include the establishment and maintenance of wetlands.  On appeal, the court first noted that the Tribe established a cognizable injury; the water flow into Pyramid Lake is essential to the Tribe’s cultural and economic life. The court also noted that the wildlife purposes definition is precisely what the NDOW and NWA sought to accomplish with the water right transfer.  Both the decree and code discuss irrigation solely within the context of agriculture, and both distinguish agricultural uses from wildlife purposes. However, the court found that neither indicates a water transfer application to sustain wildlife habitat constitutes irrigation.

Accordingly, the court held that the district court correctly concluded that the proposed water diversion for waterfowl habitat did not constitute irrigation as defined by the decree and affirmed the district court.


The title picture is of Pyramid Lake, located in western Nevada.

Casitas Mun. Water Dist. v. United States, 708 F.3d 1340 (Fed. Cir. 2013) (holding that (1) the municipal water district’s compensable water right was constitutionally limited by the amount of water the license granted for beneficial use and (2) a diversion potentially constituting a compensable taking of the water district’s water right had not yet occurred, rendering the district’s claim not ripe for adjudication).

Constructed pursuant to a contract between the Casitas Municipal Water District (“Casitas”) and the U.S. Bureau of Reclamation (“BOR”), the Ventura River Project (“Project”) provides water to residential, industrial, and agricultural customers in Ventura County, California.  Ownership of the Project remained with BOR while the agreement gave operational responsibilities to Casitas as well as a perpetual right to all the water that became available through the Project.  The contract also required Casitas to apply to the California State Water Resources Control Board (“SWRCB”) to appropriate the water necessary for the Project.  SWRCB issued Casitas the requisite license in May 1956, and Casitas began operating the Project three years later.  The license stipulated that Casitas could divert up to 107,800 acre-feet per year into the Project and put up to 28,500 acre-feet per year to beneficial use.

In order to avoid civil and criminal liability under the Endangered Species Act (“ESA”) following the listing of the West Coast steelhead trout, Casitas began exploring ways to mitigate the Project’s impact on the steelhead population in the Ventura River.  Following consultation with local water agencies and the National Marine Fisheries Service (“NMFS”), Casitas concluded that the most effective way to achieve mitigation would be to improve upstream access to steelhead habitats.  In 2003, NMFS issued an incidental take permit allowing Casitas and BOR to avoid ESA liability if they agreed to construct and maintain a fish ladder to allow migrating steelheads to safely bypass the Project.  NMFS also required Casitas to divert sufficient water from the Project in order to allow passage through the ladder.  Casitas opened the fish ladder under protest on December 9, 2004.

On January 26, 2005, Casitas filed suit in the United States Court of Federal Claims (“trial court”).  Casitas first asserted that the United States had breached the terms of the 1956 contract by forcing Casitas to divert water through the fish ladder.  Alternatively, Casitas asserted that, by imposing the diversion requirement, the United States had physically taken Casitas’ constitutionally protected property without just compensation, in violation of the Fifth Amendment.  The trial court dismissed the contract claim under the sovereign acts doctrine and entered summary judgment for the government on the takings claim.

Casitas appealed and the United States Court of Appeals for the Federal Circuit (“court”) affirmed the dismissal of Casitas’ contract claim.  The court reversed the granting of summary judgment on the takings claim, however, and remanded for further proceedings on that issue.  On remand, the trial court held that, for purposes of a takings claim, California law limits a licensee’s compensable water right to its right to beneficial use.  Even though NMFS had forced Casitas to divert water into the fish ladder, the trial court held that the diversion had not forced Casitas to actually deliver less water to its customers than it would have otherwise.  The trial court dismissed Casitas’ takings claim on grounds that the claim was not yet ripe and Casitas appealed.

On appeal, Casitas claimed that, in its first appeal, the court had held that a physical taking had already occurred due to the fish ladder diversion, and thus the trial court erred by conducting its own takings analysis on remand.  The court held that Casitas had interpreted its opinion in the first appeal too broadly.  First, Casitas erroneously relied on concessions that the government had only stipulated to in order to put the case in a posture for summary judgment.  Second, the court held that neither it nor the trial court had addressed the actual scope of Casitas’ water right prior to the appeal at bar.  The court held that the trial court had not erred in conducting a complete physical takings analysis on remand.   Moreover, the court upheld the trial court’s holding that under California water law, a court will not find a compensable taking unless the government action complained of has actually impacted a licensee’s beneficial use.

Casitas then challenged the trail court’s holding that the diversion through the fish ladder would not impinge on Casitas’ right to beneficial use until such time as the diversion caused Casitas to deliver to its customers less water than it otherwise would have.  The court found that this was the correct measure of a physical taking in this context and that Casitas had failed to show that the fish ladder diversion had actually impinged on Casitas’ deliveries to its customers.

Casitas also argued that its water license was evidence that the SWRCB had already determined that Casitas could beneficially use all 107,800 acre-feet of diversions allowed to it under the license.  Thus, Casitas argued, it had a compensable right to this entire amount.  The court first confirmed the trial court’s holding that California does not recognize a compensable property right in water that a licensee diverts but never puts to a beneficial use.  The court then held that a maximum limit on diversion in the license did not establish that the SWRCB had determined that Casitas could in fact put that maximum amount to beneficial use.  The court likewise pointed to the fact that the SWRCB had expressly limited Casitas’ beneficial use under the license to 28,500 acre-feet per year, thus limiting Casitas’ compensable right to that amount.

Casitas next claimed that diverting water for storage was a per se beneficial use, compensable under a takings claim.  The court disagreed, holding that California water law does not recognize storage as a per se beneficial use, but simply as a means to a beneficial end.  Likewise, the license itself limited Casitas’ right to an enumerated list of beneficial uses, mere storage not among them.

Casitas also asserted that its takings claim had begun to accrue the moment that NMFS took the regulatory action requiring Casitas to divert water through the fish ladder.  Casitas argued that it was this regulatory action potentially causing a property injury, here the NMFS diversion requirement, and not the injury itself that gave rise to its takings claim.  However, the court held that a physical takings claim only accrues when the physical act constituting the taking occurs, not at the time of the regulatory action potentially causing a taking.  Under this rubric, Casitas would have had to show that the fish ladder diversion had physically impinged on its right to beneficial use, which is to deliver water to its customers.  Because Casitas made no such showing, the court affirmed the trial court’s dismissal of Casitas’ takings claim as not ripe.

In conclusion, the Federal Circuit held that California water law limits a licensee’s compensable water right to the right to beneficial use.  The court held that Casitas’ takings claim was therefore not ripe because a governmental action physically impinging on its right to beneficial use had not yet occurred.  The court affirmed the trial court’s decision to dismiss Casitas’ complaint without prejudice.


The title picture is of Lake Casitas, located in southern California.