case turns on the concept of water law and that is the basis the measure in the limit of water right under the one who are commission act is beneficial use any attempt by the secretary of the interior to reduce water duties the federal water master who was appointed by the court has always extended the three and a half and the four and a half acre feet to the entirety of the newest project in the alpine case in one thousand nine hundred five there was a temporary restraining order that was issued and that the right so here's i have in front of me page eighty eight of that opinion and it says that and then later it says that you have to enter in order to figure out what the actual uses  five of the water to the field so that you can achieve the consumptive use portion of the two point nine nine people am i not right since the notion of beneficial use which is the controlling one here and these limits that are set the limits that are set our maximum potential they don't necessarily continue on forever as i i was looking at the alpine court of appeals opinion by  judge kennedy and and i have over here at page eight fifty five the one that talks about beneficial use being a dynamic concept which is a variable according to condition and goes on to say that looking that's a district court in that case was correct in looking at what was then current as the basis for determining beneficial you i simply  question of you whether since this is not really before us at this point the way the district court dealt with that whether or not the quantification is something that is really for the future so far as the owners of the rights are concerned i think contrasted with it being graven in stone and some of the numbers that were applicable let's say under alpine alpine land farmer during the irrigation season has the right to call on three and a half or four and a half acre feet during that season and in reality the farmers will use a little bit less about seven percent less just depends on the temperature of the wind all kinds of different things like that they don't have an incentive to over your gate their fields but in this case because the two point one two what happened was the fear of reclamation care to report and they indicated that if the two point one two  applied to the newest project for that two hundred eighty eight thousand one hundred twenty nine acre feet number that was the maximum allowed allowable diversion only forty six thousand acres could be irrigated in the newest project when there are seventy three thousand seven hundred acres under contract and about sixty three to sixty five thousand that are actually irrigated so you have something like fifteen to seventeen thousand acres that were just received no water under the two hundred eighty eight thousand on landowners and therefore as i said at the end i don't really know how it is that we're going to get the water back from the irrigation district and still not affect me the water  the water flows so how so i don't know how you're going to do that he says but we'll figure it out later that's not our problem right now it isn't and you know what i want to say is that that's the two point one two was embedded into that  restraining orders in the nature of an injunction so when the alpine decree came out and changed the three and a half to four and a half abrogating the two point one two that's a complete novelty at that point it's as if i was the district judge that property and i get the judgment now that the injunction cannot be then used to enforce a time period where i've may have used that property during the period of the injunction it's a complete no will thing i could have been held in contempt going the time  injunction was in place but that didn't happen here at the the injunction itself is is dissolved it's abrogated and now we have a decree that says three to have been four and half is the water duty and the historical time period that was used or falls with the validity or invalidity of the order and the opposing party should be compensated only if he was entitled to the order united states here does not have responded this argument so what we have is a classic injunction that is resolved in the favor of the water right owners yet the united states here as it has done it many times in the past is attempting to reallocate water away from the district to the pyramid lake tr while but they also say that they're not going to interfere with any vested right in that you know they creep under to tenby thirteen one hundred sixty eight same contradictory things but it certainly doesn't mean that they may be them saying contradictory things but some effort to reconcile them seems to be regulation does not make it any more of a legal legally valid position by the by the secretary as i indicated the united states knew that there was going to be shortfalls in deliveries  to comply with the federal laws which is the reclamation act that requires them to comply with the beneficial use requirements it also requires them to comply with the battle which also has that same beneficial use recoupment as a concept that is a defensive action if point a violent act get somebody in defensive defensive action we koopman yes by by the death penalty this whole meaning of the term recoupment as well in the in the dictionary that you know it says to refer to obtain something that the belongs to you from someone else that's essentially what that what the definition is and here the united states is not only the water somebody else has taken an excessive something and of equitable restitution that's that's ultimately how decided the cause of action was played and in but requital restitution requires that the property belonged to the person who was claiming they should be restored and the united states does not own this property or it's not that not exactly that if someone has taken an excessive amount as was found here and there is an authorization to seek recruitment isn't that  permissible you not only permissible but as i say the most logical use of the the term recoupment well you talk about you know you're you're accepting you're asking out so i kept the premise it please the court and michael walton your deputy attorney general for the state of nevada appearing today on behalf of the state of nevada in this department of wildlife and division of water resources the one hundred seventy three zero cap was inconsistent with the findings of the decree court this court has noted that the district court below was correct in denying recruitment for the period of one nine hundred eighty to one hundred eighty four because it was inconsistent with that finalized decree hundred eighty five and significantly increased the amount of water that could be diverted in large part to account for the amount of water to which the decree the water rights holders were entitled under the decree tribe both alleged that the state of nevada and the other water right holders within the project would be liable for repayment of water that was wrongfully diverted since the district court determined that the state of nevada was not liable in recruitment and entered a judgment in the state of nevada favor the legal religion ship between the parties with materially alter and the baton must be considered of prevailing party for the purposes of this suit well depends on a factual question as to which there's a dispute and that is whether the government was ever seeking to get recruitment from the landowners including the state of nevada or was only ever seeking they specifically alleged in paragraph fourteen each and every water write user in the project will become liable to return such waters as were improperly diverted from the truckee river and stated elsewhere that they were seeking an order directing that the only reason that they wanted the water users the owners of the water to be in this thing was so that they would be bound and therefore wouldn't be able to sue later on claiming that they were not bound by the degree now in that sense when you talk about prevailing party didn't the government ultimately see cannot obtain what it was after these of the your client i don't believe that's correct first of all it wasn't merely the complaint that it sort of these facts the united states argued aggressively in its opposition to the motion for summary judgment that the individual water right holders would be liable for recruitment and that they could be not since they were part of g c id could not be heard to complain if their water rights were taken and so from that standpoint it was only until very shortly before trial that the united states decided that although it had alleged liability that it would not attempt to attempt to prove liability they allege that they failed to prove it and so that changed the state of nevada was involved in this lawsuit specifically because it was alleged that we would have to repay water if they were able to prove their case the judge made specific findings that the state engineer excuse me that the state of the matter was not liable and recruitment that makes the state of nevada a prevailing party and they were entitled to costs the matter should be remanded then tell out of court either order cause for the for the state or to explain why this is an unusual case where which is not appropriate if there are no further questions  most of my time on our appeal issues because the question of whether to see id is liable for any repayment of water i think is absolutely clear the settlement act directs the secretary to recover water that she went right but i mean that i don't think that has an effect that means and think i'm just talking about that are alpine argument it's what we are supposed to do is recover for violations of the  secretary affirming the district court decision when they sued to invalidate the ok had said that he intentionally violated the ok this court also in tribe versus hotel which we call stampede credit case in our briefs validated the recovery of the repayment of water as a remedy for the unlawful diversion of water so this is the whole their whole that you should get more from the district court because from kerry from eighty to eighty four we are we just have a small issue about the court should all we're appealing differently from the tribe is that there were if they used your numbers i think it'll be about one hundred fifty thousand additional feet of water it's very substantial to us this what seemed like a maybe a minor ten or fifteen percent reduction because it's carried across the board and zeros out some numbers and then for the eighty to eighty four period right and then there's the pre judgment interest right now i have major problems with the whole idea what her interest it doesn't make any sense to me so perhaps  defend it to begin with because interest it seems to me by definition deals with money the whole point is that you're dealing with the time value of money and the fact that money now and money then is different under the facts of this case if we as we have discussed in our reply brief the recovery plan for the qui explains that the less water early on earlier on in the  recovery means that more water is needed later on because the populations don't at that and i have to read it it's a little difficult for me to understand exactly how it works but you can see the charts and how if you have less water the que we make less progress and you're saying that you're saying that water later is it's valuable than water earlier water earlier is more value on store the other right the other way around exactly don't lie so i said c tonight pre judgment interest on two factors without talking at all about the interests of the tribe or the equities or fairness or any of that based on united states conduct that's the tribes conduct and the first factor that you considered was that the united states delayed in bringing suit well that is just wrong i mean the district court him self i actually recently discovered this isn't in our briefs but in this summary judgment ruling i believe it's on page twenty one and twenty and what was the last sort of destruction of records that somehow impact but this records determination that that that was relevant in terms of the light what were these records that are talked about the records are a separate restore the amount of water on lawfully diverted there's nothing about case brought by the united states and that right now it's that's that's what seems to preclude a suit brought by somebody other than the secretary any interest  well first of all this isn't i don't think falls in that category of i maybe i should need to look at that statute again i remember that provision provided to suits not dropped by the secretary yet ok but i think that there's nothing you know  that there's sort of a presumption and congress was enacted this law under the presumptions that existed that prejudgment and post judgment interest start order is there any case that anybody or anybody has ever given water interest i know there's a footnote in supreme court right but that's what it to get much money damages the wanted to try to get water and the united states in order to fulfill the united states trust responsibilities and for the benefit of the fish and i think congress clearly that you know that statute has revealed purposes it intends to make the whole and i think the record shows that t c id by not delivering the water earlier on requires more water to be needed for the for the fishery later on and i do think prejudgment interests that solves that problem award of post judgment interest in a situation or ever make a finding of the kind that you're suggesting that the border now and ward later that you need more water now to make up for was never it's a public document so it can be addressed and it was brought up but it wasn't included in evidence because the trial that the district court said well you can do that later when we're doing remedy and then we never did remedy so we never you know had an opportunity to really make these arguments we did a little bit you know a little small thing i post judgment performance trial brief in case you did something like this but it really was not addressed i'm still ok and i'm still trying to understand why we're here twenty years for this settlement  was a court done springmeier council for the tribe i would like to continue the discussion with the court on the interest subject the subject and the other questions you might have and i would like to start by asking you or or explaining to you what the tribe would like you to do about the interest subject and i'll try to get specifically to judge burhans discomfort with the question of to suggest the quantification for two percent at least that yes there is no explanation or justification or support in the record for two percent as opposed to the detail ra environmentally ascertainable thing not a monetary issue because it's not money but it is equitable and it is something that has been sanctioned i think it's you know it's in a footnote in texas versus new mexico but it is about as strong a thing as we could have without a holding from the supreme court saying yes water interest is upheld in this case they say nothing to the effect that it's not available that it's not appropriate on under public policy considerations under equitable consideration may have been frozen up to be appropriate under the facts of that case but then it would have to be programmed to be a provision of the facts of this case later yes because as the counsel for the united states alluded to and because we did not have a remedy phase in this case which we all expected and which the judge said we would have there was no opportunity to put in evidence of the kind we describe even though it's a public document but there is there are facts which can be introduced which justify the fact that more water is needed later than it was interest yes and pre judgment interest is certainly something that we request and requires a re man and if you agree that the reasons he denied it completely are not valid or supportable so what what we're asking for is that you hold that in kind interest in water can be awarded if it's supported by the record which has not been developed yet in this case and therefore must be remanded for that purpose second i would suggest that the mechanism found in twenty eight u s code one thousand nine hundred sixty one should be used by analogy by a court in equity because how else are you going to decide some particular rate of considerations which is what is the value in the market and this is about money in the market i agree and that's why i'm not saying it governs but it's appropriate by analogy because you have to use something and third we would ask  that you instruct on remand the district court specifically in regard to prejudgment interest to weigh the equities as between the tribes and t c id have to take into account a general be made whole and to develop a record which shows how the plaintiff the tribe the fish can be made whole and to take into account the remedial purpose of the statute in the public interest those are factors which we see developed in the supreme court case law and the ninth circuit case law now why water instead of money number one statute says that as regards the tribe certainly we can only ask for water and beyond that the tribe doesn't want the money it wants the water to benefit fish that's what this is all about we're not trying to get even money to buy water because that is much more difficult thing getting the water because of the limited total quantity of the resource so this case is about water and about the made whole possible and it has in fact been happening while this case has been on appeal and it works like this your honor under ok the district can conserve water by implementing measures as just to take one example concrete lining a delivery canal that makes the project more efficient under the present no cap they get a bonus it's called an incentive credit for making the project more efficient than a certain target of fission so he sat in the ok and that creates a theoretical puddle water in the reservoir called their incentive credit water and the way this has been working is that they make the election to turn over that incentive credit water to the truckee river that then benefits the fish repays part of the judgment and there has not been a lesser delivery of water under right and then there's another provision of the judgement which says it can be done through a measure such as purchasing retirement variegated land that's another possible mechanism so there are ways to do the united states set forth in the mathematical calculations in our briefs that the two point nine two dealt with in the temporary restraining order was not a duty it was the average of the various duties of all the different quantities of lands and when you look at what the alpine decreed did in one thousand nine hundred eighty it is not truly different by assigning three point five to the bottom the bottom lands and four point five to the well two point nine two was actually the average of two point seven three point zero three point five four point zero and when you take what the op point to create did you end up at pretty close to the same thing by having the lesser number of different duties but applied to only two categories of land and we go into that in detail in our brief and it is the reason that they are