Pyramid Lake Paiute Tribe of Indians v. Nevada

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.