three for rebuttal i'll focus my argument on the issue of transportation loss i mean issues that the transportation lost one of the main issues that we prefer and that issue involves fifty six hundred acre feet of water  and not only that but the water would then return to the river and flow on to pyramid lake to the additional benefit of the tribe and the fish but here the eco is maintaining that just because the tribe sticks to change the purpose of use of the water from agriculture to in stream flows that that fifty six hundred acre feet should no longer go to the tribe and instead should be available available to them for though their benefit and in the new ones project even though they have no there's not another provision in the decree except look the change provision which clearly is the provision that governs what happens when a water rights including irrigation water right is put to a follows the general principles of common law of appropriate of water rights where it decreases diversion right which includes the transportation loss amount and if you want to change that right then  no injury rule and that's the general general rule now the district court made the decree this is just irrigation adjustment provision to somehow required provide that you only point if you change the use of water you only get the amount of water you need for the new use i mean there's no principle like that in the common law and you would think that if the court if the decree was going to deviate in that manner it would have said so  i might need mr but here we go i can i can see it in claim to right off the bat if you go to the second column if you start four lines from the bottom of the first paragraph and claim to the amount and then if you continue reading says and then further provided that the amount of water applied to the land shall not exceed four acre feet per acre so that difference that's the transportation loss water yes and actively i think there may have been some adjustments same problem from the provision you're trying to escape from both of us are assuming that the water is being used for irrigation now i'm not arguing from that of the water can only be used for gauging but the numbers here in terms of how use that irrigation adjustment provision they just recognizes that there are estimates in the decree that because the water runs through a bunch of ditches and they had to allocate water among users and the dish operations could change the water to deliver to the land for irrigation to go up and down but it only provides that's a special provision for irrigation for the management of irrigation rights and if they wanted that to be a more general provision they didn't have to certainly not there it doesn't say anything about what happens to non irrigation right and you think you would find in the change provision but there's nothing like that in the change provision either the change provision simply applie look question well i think it's a new question because usually and i i think this is part of what is going on for everybody involved in this case you cannot you cannot transfer a return flow on a stream because it would you cannot increase the consumptive use you cannot change your use to take that return flow out of the river because the people downstream are counting on that return flow but the tribe is at the bottom of the stream now this is the first time that maybe the reason why those questions numbers on exactly it's presented fairly uniquely in this case and i and i do think that's why are there any other users on the river who might seek who change from gets the transportation lost is that the number of the tribe they get to keep it no matter what whether they're actually transporting it in the fields or not or if they don't use of the transportation or simply goes back into the river and any other user has a claim on we but no i think the tribe wants the water for the fish everybody knows the tribe wants the water for the president needs it for the fish last year actually we when we first operated our first temporary transfer permit the one that was approved we used all the water that was given to us by the state engineer and we needed this water for the fish so that's and i will now if you let m thirty acres which is the first line of the second paragraph and to claim one and then the claim through its and then they are somewhat different words as an addition to the above mentioned thirty one hundred thirty acres there's an additional amount of twenty seven hundred forty five acres so that's the total acreage and then what you have the second set of figures which is spartan referred to are the amount per acre both in terms of the amount that you can that number is actually there it's fourteen thousand seven hundred forty two acre feet which is kind of in the middle of the first of the second paragraph and a clean one they didn't do the multiplication in claim two but it's about the same amount so it's about thirty thousand  why don't we sell the first of all the tribes out in the business of selling one of the tribe is trying to actively to acquire water rights to answer another question there are other water users in fact that the tribe has an agreement with water uses in reno and farmers and washoe count of uses who are also interested in maintaining the water quality of the truck you river for their own reasons and the best way to maintain water quality and to meet both state and tribal water quality standards is to increase the flows particularly during low f conditions like we had last year now this year for example when we wouldn't need the water we don't have a permit expired it was a temporary permit we don't we didn't we don't have one but even if we had one this year we wouldn't have utilised the temporary transfer because there was sufficient flow in the in the river to to provide enough to meet claims one and two without calling on it's already there without calling on somebody to reduce their diversions without making hall on water that's subject to somebody else's water rights so right now as we speak there's probably no more than five hundred cubic feet per second flowing in the truckee river below derby dam into pyramid lake and the combined amount that we're seeking under claims one and two was about one hundred cubic feet per second so the water is already in the river when can't we don't when we when that's all right the water's already in the river there's no need to implement this change the other provision i'd like to point out to you is the change vision itself which i had yes which is on page ninety one of the excerpts of record in this i think is is the key provision  shall be entitled as a matter of right to change in a manner provided by law of the past the point of diversion a place means man or a purpose of use of waters to which they are entitled or any part their own and this is the key so far as they may do so without injury to the rights of other persons whose rights are fixed by this decree so that's the no injury rule and that's the that's the requirement of the decree and that is a requirement of standard appropriate of what growth of the west is to a very large extent fueled from abroad a standpoint by agricultural water rights being sold to municipal purveyors here we're doing the same thing only it's going to enshrine flows an environmental use instead of it in a civil use what was the purpose of the transportation last the purpose of the transportation laws and this is again very common for agriculture is that the water right is quantified in two ways  one is the amount of water that you divert from the stream how much you're entitled to divert from the stream and the other is how much you are entitled to apply to your land so there are two different measuring points that's that's what's referred to in both claims one and two you have t my understanding is that its purpose is to ensure that that has purgation the tribe has been anough water taking into consideration the loss that naturally occurs in transferring from the river transportation loss even if there isn't  the rights of that that are decreed in so far as they can do so without injury to the rights of third parties and the tribes position here is very unique when you have for example on the truckee river the water passes through reno and sparks which used to be heavily agricultural and is now have all the urbanized and then from there the water through reno once lost and went down to her mid like and there was also a diversion to the newmans project below reno in sparks well there when you have an agricultural water right and it gets converted to municipal industrial use the common practice is that they can only change the consumptive use the amount of the water right that would be actually consumed by the crops depleted from the river because downstream water uses and on the return water rights and therefore if you could if you if you were able to consume the entire amount of the water right including the transportation loss then the downstream water users would be injured the right to be injured because they would be getting less water than they got under the agricultural regime what makes this case different is that for it in we are at the bottom of the stream and so what what's happening here is that in our view if you if you do not allow the transportation boss to be transferred what you have is a fifty six hundred acre foot windfall to the newlands project what the winter windfall in terms of what of that they would not be able to receive if the water was used for agriculture under the guise of the no injury rule which doesn't make any sense but ok thank you the engineer first of all the engineer made a provisional ruling and said i want to say this my interpretation was out of an abundance of caution i'm not going to allow the transportation  temporary change but i'm going to leave it open for the future because to reconsider that and what the state engineer said was that he wanted to ensure that they would be no injury and he was struggling i want to try to be fair here but he pointed to an analysis of computer runs that were done in an environmental assessment by the federal government for federal purposes that was introduced into evidence and he indicated that well these computer run show that there could be circumstances under which there would be less carryover storage let me point out here that last year for example  the full amount of twenty thousand acre feet that was allowed by the state engineer was used for in stream flows there was that much less diversion to the newest project but nobody was shorted because that deficit or that hole in storage was made up in subsequent months and they got back to where they would have been if it hadn't been done but the point i want to make is that the computer that the state engineer didn't analyze it in terms that we're talking about here which is that how can they possibly be injured if there's nobody downstream who depends on these return flows and the reason the state the reason the computer runs which is in the record the reason that the computer and showed what they did and it was discussed during testimony was because when they were comparing the results on their own agricultural regime versus initially inflow regime for agriculture they assumed that the return flows in the tributaries that came into the river below drove me down would be used for agriculture but they picking up some where we left off it appears to me that the that what is at the center of this dispute is some language that falls there on page ninety one and that change  provision they are allowed to change water to which they are entitled the united states in the tribe interpretation of the no injury rule is inconsistent with the terms of the order to create an improper improperly limit the scope of the no injury rule to downstream users only nothing in the battle law limits no injury rule in this matter the transportation right well injury that's what they're entitled to and worth discussing what you're entitled to so we're coming back to the question that in the end that's exactly right the transportation loss provision is a contingent right it rises and falls depending on the factual circumstances on the ground as a matter of fact at hearing the federal water master testify that he has at times increased the diversions for the tribes agricultural land because there was insufficient transportation water to get the duty to the actual physical land if the fact likewise indicated that there was getting is that the last transportation water was needed because of geology the distance any other number of factors that amount under the decree would also have to be then decreased only the consumptive portion of the right can be transferred specifically states that so if you want us to read i think it is and it is certainly a part of the no injury rule and the transportation lost as written in this decree since it moves according to need when there is no there is no right to transportation last and that is in fact what they're arguing here is that there's this this absolute right to a certain amount of transportation loss regardless of the facts it doesn't seem to make sense to me that on the one hand if you use this water for agriculture that the transportation loss can adjust but if you then change the manner of use that you now three is the transportation loss becomes an absolute right here indicate there's going to be zero transportation lost there's no law to support the idea that it was worse in that situation and that this is not consistent with your argument i understand it's also not compelled reading of the decree but it seems to me if the tribe were year after year after year going to use this water for agriculture and year after year they would get the same and amount that is to say water duty is you're now using the term and the transportation last number would go up and down depending on circumstances ok that that's what they're fully entitled to do yes why is it not a plausible reading of the degree to say ok let's assume that they're using the land the water limit and the extent of the right using more water than you're entitle to for the beneficial use is considered wasteful that's true under the decree as well and then that's when you start bumping into the no injury rule again granted if they want to use that water for agriculture and if you do go there the are there be a higher amount there and he said id and other users may be impacted by that however they don't necessarily th have the right to change that to another use that would be more consumptive than it otherwise would have been well and then injure upstream users but now the question is what you mean by consumptive they will consume the same amount of water from your standpoint as to say the amount of water that they would have been using for agriculture is what the end used is the duty and the transportation they're going to consume exactly the same amount well i'm afraid that comes back around to the water to which they're entitled as that definition i get is it is somewhat circular unfortunately but i'm afraid that that's the nature of the transportation right it isn't it is a factually unusual circumstance you only have so many terminal rivers in the nation and nevada gets most of them but at the heart of that as well a water user at the end of a terminal river be that the tukey the carson the walker the humboldt have a different water right than every other user on the system there's nothing in the decree that would indicate that that would be the case they have the same type of water rights as everyone else and by changing the nature of that right changing what they are entitled to it will impact was no evidence of what the historical transportation loss was or would have been that's a failure of proof from the state engineer was correct under those circumstances in saying absent that proof that water ice  point certain of these questions may likely come up again there is append there is another pending change application sitting before the state engineer as we speak that's in publication and will be heard by him so that is correct the state engineer decided that on an evidentiary issue that there was no no evidence of what the historical use was the district court went further and said the nature of this right is such that they cannot transfer and he relied on the language of the korean doing so if i might touch just quickly on the issue of the choice of was the question of whether the the tribes reserved water rights are to be administered pursuant to state law wasn't previously addressed by discord as part of the with the decreases i'm not sure i understand your question your honor that that the federal or state law when are you telling me that i read to be treated differently depending on whether i apply federal or state law i'm just trying to construe th no i don't i don't think you do that well there's no federal law to interpret on the transfer issue and there in lies the point however the pyramid lake tribe argued is part of the interlocutory appeal is argued here the state law should not apply now that they are not subject to state of ministr the manner provided by law is the language in the decree this court has consistently interpreted that to mean state water law substantive and procedural there is no federal water law that applies to try and understand this issue between the diversion rate that is the five point five nine for claim to versus the four point one as applied to the land for going to and in the plane one four point seven one versus the four point zero the very fact that the or ditch court made the distinction in issuing its the creed between the transfer to what can be diverted from the river and what actually can be applied to the land is a very important distinction because it really does define what the water right is and later on a quote from language from the decree that talks about that five point five nine and the four point seven one those diversion rates are merely estimates and you don't have a right absolutely to that amount of water if you don't need it and i'll probably point the court to that provision in just a second but it's it's very important to read claims one and two very carefully because the very important language that that is really the definition of beneficial use for the water right is the language that says the amount of water so diverted during any such year shall not exceed four point seven one and further provide the water applied to the land shall not exceed four acre feet per acre so the portion of the water right that we're talking about that is actually beneficial use as applied to the land is the portion that cannot be exceeded that four acre feet per acre or for a claim to which the four point one again repeating that nor exceed during any calendar year four point one acre feet for acre and when you look at the the transportation last provision that is up the records page ninety page eighty seven of the or ditch decree that language is very important and it's in the third full paragraph on page ninety of the edge and then the last sentence i believe is the operative one whether more or less than the amount you're in before estimated for diversion from the stream by any death the quantity of water divert shall in every case speak only such an amount as will supply to the land after actual transportation lost the amount of water allowed by this decree i'm sorry it's the third one thir for us here pacific so that's why they zeroed in on irrigation for this but the issue is if you don't need it for the use for which you are claiming then there's no reason for you to divert water for that purpose and it really does address the issue that the numbers that are in the decrease if you go up to the beginning of that paragraph and talks about the amount  before estimated and allowed to be diverted if it's not sufficient after transportation that's what the what the or disagree saying there that they really are just estimating what this transportation loss component would be and it can go up and down depending on the on the circumstances at your owner's right if if you if the tried to use all this water for irrigation clearly you know they could take the transportation component that is that is in the decree if they need the entire amount but let's say that they want to transfer the the water right to a another place of use for your geisha and that is further up in their system then there was there would need more transportation water to do that and there'd be a question about whether or not that transfer might cause an injury to other water users on in the system and i want to address the the injury in just a second here  you answer the court's question though about why don't they do that others actually physical limitation right now on the reservation in terms of the number acres that that can be irrigated they're going out between one thousand and twelve hundred acres roughly in the cannot be assured and that's the standard that the state engineers using can be assured will be made up during the remainder of the calendar year for the next year a geisha a season now whether or not it is made up was not the issue is the question is whether the change  rights to be protected the transportation loss component could not be transferred not the finding of fact by the state engineer there's a presumption of correctness to that it was affirmed by the district court and and so we believe that the clearly erroneous standard  only issue of schedule for in stream flow that has been addressed is in the briefs and we just want to point out that the that both the united states and the and the tried filed applications that included the that the tribes rights in that case could be affected by state law and that this happened in the or disagree as well and one of the things that the court intervene on was the priority of right well priority right is determined under state law not under federal law there's no federal law to apply here with regard to priority right and the other right than that of your mentions is the precise quantity of water protected must be determined in accordance with state techniques and procedures and they also say colorado river for that so i think it's very important when you're looking at these cases to understand that there is no federal law substitute and you must look to essentially state law to flesh out the the decree and the way that the state has applied the transportation loss issue as mr walsh stated in the alpine decision in particular they want to allow even transfer anything but consumptive use portion of the water right thank you very much cited many cases in our brief for that and we've also cited many cases in our brief for the principle that beneficial use includes the transportation loss right otherwise you can only take the water that's required for beneficial use and that requires the amount to get it through the use and there are numerous below and maybe there was some confusion about some data provided or something but this is just a clear there's no factual question here that if the alpine decree says only consumptive portion can be transferred they could have put that provision that's exactly what we're saying this decree doesn't have in it the kind of provisions that the district court just very briefly on the on the choice of law issue there is choice of law the risk for a law this court and the supreme court have said for example that once an indian water right is decreed unquantified it can be you was quote for any lawful purpose that's what we're trying to do here because the need for the reserve water right that's correct the risk federal law to apply the same engineer in fact did not apply that savings and this is very interesting the state engineer says there's no federal law to apply the state engineer applied federal law but it was the wrong law because the state engineer said well we have this distinction between primary and secondary uses and that's a creature of federal law and he will allow the transfer from agriculture one primary use to another primary use which was the fishery because it's primary to primary but he said i'm not so sure whether we can do that from a primary to a second there were used there's nothing in state law to that effect that's a federal rule it's the wrong rule because this court and the supreme court as stated in our brief have has held and i would ask this court to uphold the rule that once you have quantified and decreed federal reserve want to right it can be used for any lawful purpose subject only