Water Ruling Could Affect Nevada Farmers

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An appeals court has returned a long-running battle over water rights to a federal district judge and the state engineer in a ruling that could affect how much water some Northern Nevada farmers can use.

The Wednesday ruling by a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals overturned, upheld and remanded parts of a lengthy and complicated legal battle over how water rights can be transferred in Nevada.

The Pyramid Lake Paiute Tribe and the federal government have challenged hundreds on transfers that date to the 1980s when some farmers in the Newlands Irrigation Project applied to the state engineer for permission to move water rights from one place on their farms to another.

The Newlands Project is fed by water from the Truckee and Carson rivers to irrigate farms in the Fallon area. Water diverted from the Truckee River for irrigation means less water flowing into Pyramid Lake on tribal land.

The tribe challenged the applications, claiming water rights could not be transferred because they had been abandoned, forfeited or never exercised as required under Nevada law to remain valid.

The federal government later joined the tribe’s opposition.

After years of litigation, the state engineer rejected the tribe’s arguments and allowed most of the transfers after U.S. District Judge Howard McKibben ruled in 1998 that “intrafarm” transfers are not subject to abandonment or forfeiture.

In a ruling last year, the appeal’s court rejected a “blanket” exemption for intrafarm transfers in a previous case.

In its latest ruling, it said the state engineer or district court must re-examine those applications that were approved solely on that basis. The court said, “Equitable exemptions from forfeiture may be appropriate on a case by case basis.”

“In making these equitable determinations, the engineer should make explicit findings balancing the interests of the applicants with the negative consequences to the tribe resulting from any increased diversions from the lake,” the order said.

The order upheld the state engineer’s denied transfers and conclusion that water rights issued before 1913 are not subject to forfeiture provisions.

But it overturned the lower court ruling that affirmed the state engineer’s determination that the use of land for on-farm, dirt-lined supply ditches constitutes beneficial use of water rights.

In those cases, the court said the state engineer must make “individual findings” of beneficial use as it relates to all parcels served by the ditch.

The cases are 01-16241; 01-15665; 01-15814; 01-15816; 01-16224.