The 9th Circuit Court of Appeals has backed the Nevada state water engineer's decision barring the Pyramid Paiute tribe from transferring 100 percent of its irrigation water rights to in-stream use.
The court agreed with the state engineer and a district judge who ruled the total irrigation rights include water to make up for "transportation losses" that are not transferable.
The engineer allowed the tribe to move about 85 percent of the total amount of water to in-stream use instead of irrigation to help support the tribe's fishery at Pyramid Lake. The city of Fallon and the Truckee-Carson Irrigation District sued to block the transfer altogether but lost the argument because the Orr Ditch Decree sets up a procedure for changing the use of water rights.
The court, however, backed the engineer's decision not to allow the transfer of 100 percent of the water because the Orr Ditch Decree sets a maximum amount of irrigation water, which includes "an estimated amount of water that will be lost in the process of transporting the water from the river to the irrigated land."
That amount in the decree is 15 percent and the court agreed with the state engineer that the percentage is over and above the amount of water the tribe is actually entitled to for irrigation and, therefore, non-transferable.
"The amount of water to which the tribe is entitled for transportation loss fluctuates depending on real-world conditions while the amount of water the tribe may use to apply to the land remains constant," the opinion states.
The actual transfer was temporary and occurred in 2004, but the appellate judges said the issue is not moot because it is likely to come up again in the future when the tribe or other users seek to change the use of irrigation water rights. Water rights on the Truckee and Carson Rivers have been the subject of almost constant litigation for more than 100 years.
n Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.
