Home » Case Summaries » 2007 » United States v. Alpine Land & Reservoir Co.


United States v. Alpine Land & Reservoir Co.



The Pyramid Lake Paiute Tribe of Indians (Pyramid) challenged a decision to approve ten transfer applications for water rights in Nevada’s Newlands Reclamation Project (Project).[1]The Nevada State Engineer approved applications by landowners within Project boundaries to transfer water rights to new parcels of property. Pyramid appealed, claiming the water rights could not be transferred because they were abandoned or forfeited, and that the water itself should remain in the Truckee River to benefit the ecology of Pyramid Lake, located within the Pyramid Lake Indian Reservation. The United States District Court for the District of Nevada affirmed the State Engineer’s decision, determining that the Engineer’s findings were supported by substantial evidence and that his conclusions of law were consistent with prior Ninth Circuit decisions.[2]The court affirmed in part, reversed in part, and remanded in part, noting this case presented no substantial new legal issues and merely required application of the Ninth Circuit’s prior interpretation of Nevada law.[3]

The distribution of water rights and federal water policy are determined by state substantive and procedural law to the extent not preempted by a federal directive.[4]In Nevada, applications to transfer water rights are made to the State Engineer. The Engineer’s determination “shall be prima facie correct, and the burden of proof shall be upon the party challenging the . . . decision.”[5]On appeal, the Engineer’s factual determinations are upheld if they are supported by substantial evidence,[6]but legal determinations are reviewed de novo.[7]

The court began by summarizing the law governing abandonment and forfeiture of water rights before considering in turn each of the ten transfer applications. Nevada law does not presume abandonment from nonuse alone, and instead mandates consideration of all the surrounding circumstances.[8]

In Nevada, a party asserting abandonment must make an initial showing to the State Engineer of a substantial period of nonuse on the parcel to which the water rights were attached. When the challenger makes this showing, the transfer applicant must rebut with evidence of one of the following to show a lack of intent to abandon: 1) the water was in fact beneficially used on the parcel, 2) the water was continually used on another parcel and the applicant presents evidence demonstrating that he or she tried to transfer the water rights or inquired about the possibility but was “thwarted” or told it was impossible by the government or irrigation district, 3) the taxes and assessments were paid during the period of nonuse and no improvements inconsistent with irrigation were made on the land to which the rights were attached, or 4) the previous owner sold the rights before his actions qualified as abandonment, and the new owner demonstrates a lack of intent to abandon.[9]The State Engineer considers all information presented by the applicant and the challenger; but the burden of persuasion is on the contesting party, who must demonstrate abandonment by clear and convincing evidence.[10]

Under Nevada law, nonuse for “any 5 successive years” results in forfeiture,[11]but forfeiture does not apply to rights “that were vested or for which appropriations were initiated before . . . March 22, 1913.”[12]Where water rights are apparently subject to forfeiture, equitable relief may be available if: 1) steps were taken to transfer the rights during the period of nonuse,[13]2) the applicant attempted to or inquired about the possibility of transfer, but was thwarted by the government or irrigation district,[14]and 3) the balance of hardships favors the applicant, which, in keeping with the Orr DitchDecree, is likely when there is no increased diversion of water from the river.[15]

After summarizing applicable Nevada law regarding abandonment and forfeiture, the Ninth Circuit considered each of the ten transfer applications in turn. The court affirmed the State Engineer’s approval of application number 49999 (Workman) because the owner’s sale of water rights demonstrated no intent to abandon. The Engineer found a sale by the prior owner took place before abandonment would otherwise have occurred, and the buyer requested a transfer request that demonstrated he did not intend to abandon. The court rejected Pyramid’s assertion that a thwarted attempt to transfer must always result from substantial period of nonuse. Noting its prior cases had not discussed a sale alone, the Ninth Circuit determined that a “mere sale after an abandonment would otherwise be found would not, itself, suffice” to avoid a finding of abandonment.[16]The court stated, however, that a sale of water rights by an owner is the “antithesis of intent to abandon.”[17]In the Workman application, such a sale avoided a finding of abandonment despite six years with no beneficial use, use of the parcel inconsistent with irrigation, and no government-thwarted attempt to transfer.

The court affirmed the transfer of rights on application number 52335 (Ponte), noting substantial evidence supported the Engineer’s findings of continuous use of the water itself and a thwarted attempt to transfer the rights, despite a period of nonuse. The Ninth Circuit rejected Pyramid’s argument that the rights were abandoned because the transfer attempt
preceded the period of nonuse, noting that rigid rules of this sort are more likely applied to cases of forfeiture, not abandonment.[18]

Application number 50008 (Rambling River Ranches) raised issues of abandonment and forfeiture. The State Engineer determined no water rights were abandoned despite substantial periods of nonuse and in some cases, uses inconsistent with irrigation.[19]In support of this determination, all taxes and assessments were paid and all of the water itself had been continuously used. The Ninth Circuit determined that under the rules governing abandonment, these facts alone supported a finding against abandonment for the parcels with uses consistent with irrigation. In addition, given that the landowner’s attempts to transfer were thwarted repeatedly by the government, the record contained substantial evidence to support the Engineer’s finding of no abandonment on any of the parcels. On the issue of forfeiture, the State Engineer found that portions of parcels eight and nine and all of parcels two, eleven, and twelve were subject to forfeiture (following five successive years of nonuse). Rather than consider any attempts to transfer, the Engineer went directly to balancing, finding no forfeiture since the amount of water under consideration was of infinitesimal value to Pyramid Lake, therefore tipping the balance in favor of the applicants. The Ninth Circuit rejected the Engineer’s approach, pointing to the requirement that a transfer attempt be thwarted during the period of nonuse to reach any equitable balancing. With sufficient evidence in the record that no thwarted attempt to transfer on parcel two and portions of parcels eight and nine, the court reversed the Engineer and determined water rights on those areas were forfeited. The court remanded on the issue of forfeiture as to parcels eleven and twelve, finding the record lacking on whether attempted transfers were thwarted on those parcels.

As to application number 51043 (Stix), the court affirmed the Engineer’s finding of no abandonment. Although there was a substantial period of nonuse on the parcels to which the rights were attached, the use of the parcels was not inconsistent with irrigation and the taxes and assessments were paid. The Ninth Circuit also affirmed the Engineer’s decision in application number 51051 (Harriman). In that instance, the water rights were not abandoned because the water itself was continuously used and the record demonstrated a thwarted attempt to transfer. The court rejected Pyramid’s argument that the attempt to transfer should not count because it preceded the period of nonuse, determining this was not fatal to the landowner’s application.

The Ninth Circuit also upheld the majority of the State Engineer’s findings with regard to application number 51237 (Wolf). Pyramid presented witness testimony that the drainage ditch, a use inconsistent with irrigation, occupied one acre of the land. Both sides agreed it was in the middle of the parcel. With the exception of the ditch, the use of the property was not inconsistent with irrigation and all taxes and assessments were paid, which is enough to show lack of intent to abandon. In addition, the water was in continuous use. The State Engineer rejected Pyramid’s testimony as insufficient and found no abandonment. The Ninth Circuit reversed the Engineer’s findings only as to the land occupied by the drainage ditch, stating that, as to that land, the Engineer placed too high a burden on the challenger.

The Ninth Circuit reversed in part the Engineer’s findings on application number 51608 (DeBraga). The court upheld the Engineer’s decision on parcel two, on which the water rights had not been used for seven years and the use of the land was inconsistent with irrigation, although the water itself had been continuously used. The decision to approve the transfer was upheld only because the record showed the applicant inquired about transfer and was thwarted prior to or during the period of nonuse on parcel two.[20]This thwarted attempt to transfer, however, followed a twenty-five year period of use inconsistent with irrigation on parcels one and nine. The court held that because the request belatedly followed a twenty-five year period of inconsistent uses, it could not cure that twenty-five year period of abandonment. The State Engineer’s determination of no abandonment was therefore reversed as to parcels one and nine.

The eighth application considered by the court was number 53910 (Thomas), in which the Ninth Circuit upheld the State Engineer’s finding of no forfeiture because Pyramid submitted insufficient evidence to demonstrate a five-year period of nonuse. Some evidence demonstrated certain years without irrigation, but there was also evidence to the contrary. Pyramid failed to meet the clear and convincing standard, and the finding of no abandonment was affirmed.

On application number 52843 (Inglis), the State Engineer in that case determined water flowing through dirt-lined ditches absorbed water, resulting in growth of grass used as pasture that qualified as a beneficial use not inconsistent with irrigation. Rejecting Pyramid’s assertion that no finding of beneficial use was possible without a showing of the exact quantity of water consumed or vegetation growth, the Ninth Circuit affirmed finding of no abandonment.[21]In application number 51734 (Bright), the court affirmed the Engineer’s finding of no abandonment on the same rationale.

In conclusion, the Ninth Circuit upheld the vast majority of the State Engineer’s decisions on the ten applications for transfer of water rights. Pyramid’s appeal resulted in the reversal of rulings on parcel two and portions of parcels eight and nine of the Rambling River Ranches application, on land occupied by the drainage ditch in the Wolf application, and on parcels one and nine in the DeBraga application. The court remanded for further consideration rulings on forfeiture of water rights on parcels eleven and twelve of the Rambling River Ranches. All other portions of the ten applications were affirmed. In a final ruling, the Ninth Circuit awarded costs against Pyramid on all applications except Wolf, Rambling River Ranches, and DeBraga, for which the court determined each party would bear their own costs.

[1] Water rights in the Project have a long litigation history, dating back nearly to the Project’s creation. Water from two rivers, the Truckee and the Carson, irrigated the land. The United States initiated litigation in 1913 to settle Truckee River water claims, leading to the Orr Ditch Decree. Similarly, the Alpine Decree resulted from a quiet title action initiated by the United States to settle claims to water from the Carson River. In this opinion, the Ninth Circuit declined to summarize the history of these conflicts, pointing instead to the background discussed in prior opinions. See United States v. Alpine Land & Reservoir Co. (Alpine VI), 340 F.3d 903 (9th Cir. 2003); United States v. Alpine Land & Reservoir Co. (Alpine V), 291 F.3d 1062 (9th Cir. 2002); United States v. Orr Water Ditch Co. (Orr Ditch), 256 F.3d 935 (9th Cir. 2001); United States v. Alpine Land & Reservoir Co. (Alpine II), 878 F.2d 1217 (9th Cir. 1989); United States v. Alpine Land & Reservoir Co. (Alpine I), 697 F.2d 851 (9th Cir. 1983).

[2] The water rights in dispute in this case were granted following the district court’s February 25, 2004 remand of pending transfer applications to the State Engineer in response to the Ninth Circuit’s decisions in Alpine V and Alpine VI. Alpine V, 291 F.3d 1062 (9th Cir. 2002); Alpine VI, 340 F.3d 903 (9th Cir. 2003). Some of the pending transfer applications remanded for consideration were denied. Pyramid appealed 10 that were approved. All of the water rights associated with these transfer applications are governed by the Orr DitchDecree.

[3] The Ninth Circuit had jurisdiction pursuant to 28 U.S.C. § 1291.

[4]Alpine I, 697 F.2d at 858; Alpine II, 878 F.2d at 1223.

[5]Alpine V, 291 F.3d at 1071.


[7]See Town of Eureka v. State Engineer, 108 Nev. 163, 165 (Nev. 1992)(per curiam).

[8]Alpine VI, 340 F.3d 903, 916 (9th Cir. 2003).

[9] United States v. Alpine Land & Reservoir Co. (Alpine VII), 510 F.3d 1035, 1038-39 (9th Cir. 2007).

[10]Alpine VI, 340 F.3d at 921-22.

[11] Nev. Rev. Stat. § 533.060 (1987).

[12]Orr Ditch, 256 F.3d 935, 941-42 (9th Cir. 2001).

[13]Alpine VI, 340 F.3d at 914; Alpine V, 291 F.3d 1062, 1078 (9th Cir. 2002).

[14]Alpine V, 291 F.3d at 1078; see also Alpine VI, 340 F.3d at 914.

[15]See Alpine VI, 340 F.3d at 915; Alpine V, 291 F.3d at 1078 n.21; Alpine II, 878 F.2d 1217, 1224 (9th Cir. 1989).

[16]Alpine VII, 510 F.3d 1035, 1040 (9th Cir 2007).


[18]See, e.g.,Alpine VI, 340 F.3d at 914; Alpine V, 291 F.3d at 1078.

[19] The period of nonuse on the parcels to which the rights were attached was 38 years on parcels 1-3 and 5-9, 24 years on parcels 11 and 12, and 40 years on parcel 13. Parcels 1-3, 5, and 6 had uses consistent with irrigation, parcels 7-9 had partially inconsistent uses, and parcels 11-13 had entirely inconsistent uses.

[20] The record demonstrated that the applicant served on the Board of the irrigation district from 1974 to 1998. The State Engineer believed he was sufficiently thwarted to avoid abandonment by way of knowing through his position on the Board that any request to transfer rights would be denied. The Ninth Circuit upheld the finding of no intent to abandon, but amended its rationale. Considering the State Engineer’s reasoning alone too close to a “futility claim” rejected by the Ninth Circuit, the court instead grounded its decision in the record, which showed the applicant did inquire about a water rights transfer and was “told no.” Alpine VII, 510 F.3d at 1043 (citing Alpine VI, 340 F.3d at 918; Alpine V, 291 F.3d at 1076; Alpine II, 878 F.2d at 1223).

[21] The court distinguished the Inglis application from its earlier rejection in Alpine VIthat a dirt-lined ditch is “ipso facto, a beneficial use,” noting that the Alpine VI court went on to say “[t]here is a possibility that along the course of a ditch, there may be some beneficial use and appurtenant rights if the water is used for lateral root irrigation.” Alpine VI, 340 F.3d at 924-25.

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