district court in this case summarily dismissed all of the claims of the united states and local river piute tribe for modification of the one nine hundred thirty six water rights to create in this case to reflect certain federal reserve and other federal water rights most of which could not have been and none of which were let in gated prior to the decree in doing so the district court invalidated important property interests of both the united states and the tribe without ever allowing those claims to be litigated the district court commits three significant legal errors first the court acted sue a spontaneous to dismiss the claims precluded then it improperly concluded that the that the claims constituted a new action and were not therefore properly within its jurisdiction to modify the decree and finally without making any of the appropriate findings it dismissed the claims as precluded because of the cavalier and arbitrary way in which the district court dismissed the claims against and the stablished record of hostility to federal officials and policies united states has taken the extraordinary step in this case of requesting that this court instruct the district court to reassign the matter on remand and if it's reassigned she would require reassigned in all of the other cases of the us as request affects all other cases here that is correct your honor and the and the principal grounds for that is because of the hostility to individual attorneys that was issued or at least we should appoint an opinion on that that's correct and that was a fairly strong rebuke of the judge's attitude toward federal policies and official right is there any evidence that that you put into the record that indicates that that there that i honestly don't know that he would have allowed them to present their case had they been from the united states attorney's office or somewhere else i think he has a particularly strong personal view about the matters that issue here and that that may have resulted for example in his remarkably unreasonable conclusion that the lake is not within the walker river basin i think that i think that the district court simply brought his personal views too much to bear in this case for him to be impartial and we therefore believe that reassignment in this case would be appropriate in this case that none of the claims has been adjudicated previously and the the claims were brought as a request to modify the one nine hundred thirty six to create the previous district judge judge jones along the way made clear that the case is a unity and that these claims were also properly brought within the unity of this one case it then judge jones then therefore conclude his his considering them all the claims were never heard but the facts of those other those claims show that substantial change circumstances gave rise to the most significant claims raised here for example the united states expanded the reservation in one nine hundred thirty six substantially and the rule in federal law is that when the united states reserves land it also reserves water rights but the claim for those water rights was precluded according to judge jones by a decree that was issued before the reservation occurred similarly reservoir right here was never litigated and it was clear that everyone assumed that the united that the tribe did have the right to store water in the reservoir that was constructed by the united states for it and the only way that that issue was raised in litigation was through rids challenge to the winters right for the reservation on the ground that the united states didn't intend to reserve a direct flow right because it instead had the idea that it might eventually be able to build a reservoir so the claims here finale and repose in ordinary circumstances should be allowed some degree of modification for equitable reasons and here have a substantially changed circumstances which also include nevada as one nine hundred thirty nine recognition of diversions of ground water which can substantially reduce the water that is now reaching the reservoir in the river should have we believe qualify these of the united states and the tribe to have previously litigated these claims which are substantial property rights of the of the tribe in united states should at least have been examined and considered and we believe that there are appropriate modifications and should be recognized in the  there is no other appropriate forum for those claims so by concluding even by concluding as the police have proposed that those claims simply are not appropriate modifications there are some other kind of claims and should be heard in the state court tribe in the united states are left without those rights they have good claims that cannot be litigated because of the order in this case which needs to be reversed and these need to be given proper consideration by an impartial judge in the district court and the the district court is under this court's rules the only place where that consideration can be given in our view because of the district court's apparent difficulty in taking seriously the significant interests that are reflected by these claims and its cavalier dismissal of all of them we think address in its motions to dismiss i believe probably the opposing parties are equally shocked to meet their motions were granted on issues they did not raise and in the hearings before judge jones they address the issues mr the polling specifically asked jones whether he would have the opportunity in the future to raise residue to current in an equitable defenses and judge jones agreed that those could be  nevada vs the united states and that these issues would be lazed in later motions now if you look at and that department while life's refiled in this case it's based on those exact issues and focuses on the case of nevada vs the united states those are issues that no one expected to be addressed and the court's decision and it would have been so simple for that the tribe to address restored to the reservation occurred in september of that year september of one hundred thirty six weber is or was completed the following year so those claims arose after the the effective date of the decree so they could not have been raised in the ability to modify the decree and he said that he the court has continuing jurisdiction to increase or decrease of parties rights and to change the decree which may be based on yet unlit a good planes those are issues that were not appealed in this case opposing parties going on the pill that in stead what they focused on is other clause of the decree that says that the parties are enjoying from claiming additional rights however that clause also says that you're enjoying from claiming additional rights except for rights stated in the decree well that's exactly what we're seeking in this case we're seeking to amend the decree so that the these rights that we're claiming are stated in the  are these claims i want to i want to to the issue of that the district court did not make a sewer sponte decision on whether the court had jurisdiction under the decree or should treat these claims as new actions that was an integral part of the motion to dismiss that the district made we specifically contended that the court should this not have jurisdiction under the decree and if the court determined that its only jurisdiction was under that it created had no jurisdiction but that it was appropriate for the court after these many years and all the service to treat the claims as a new action and look at the jurisdictional bases that were alleged for motion to modify the decree on change circumstances or anything else if the other thing about these claims is that we're not just talking about claims to water from the water river we're talking about claims to water from every source of water in the entire walker river basin in both nevada and california ground water seeps in springs that don't reach walker any tr streams that flow off the waseca reigns directly into walker lake in our view the reservation of jurisdiction to modify the decree could not give the court jurisdiction in areas where it never had jurisdiction in the first place this case involved both nevada and california in the district of nevada as an in person an action pursuant to a what i would refer to as a federal long arm exists how a district court with a decree on the walker river can get jurisdiction over water in california by a provision to modify it is simply  case in terms of the the position that we have taken if we did take position that if the courts only jurisdiction is is to modify that a korean or paragraph fourteen  of the decree then it didn't have jurisdiction over these claims and that if that's if it's inappropriate for it to treat it as a new action and the only way it can look for jurisdiction is there it had no jurisdiction it properly dismissed for lack of subject matter jurisdiction and we didn't need to cross appeal to take that position because we're not going to lessen the rights of the united states in the tribe once the court had no jurisdiction it couldn't decide anything more in the united states  claims that i think they could start some of them in the u s district court in that they could start some probably in california but i think with a lot of these claims the state law claims might be to the united states offer any other basis for jurisdiction honor i would say what he said was any claim that could have been made prior to the decree is barred by race you to cut any post decree claim all have to be filed before state administrative agencies whether they're based on state or federal law the basis for that is i don't know where that basis would come from but that's that's what he that's would be my interpretation of what he did and in our brief we have that the district has acknowledged that your honor what i said that that that the court's decision to treat the claims as a new action rather than as jurors as having jurisdiction out of the decree that was an issue that we filed our motion litigating whether or not there was a claim for a water right to store water and whether aggressive war that has nothing to do with the federal implied reserved right claim what is important there is the fact they did purpose of preservation an eight hundred fifty nine congressional appropriation an expenditure of funds either then or later doesn't change what the reserve right is the united states is not constrained and limiting a claim for reserved right because congress has or has not appropriated money to put the water to use that that the united states is claiming there was no right  for a c right to store water in whatever resident or under the implied reservation of doctrine or law or principle any more than there was an implied reserve right for a fishery a fishery water right for pyramid lake what the nevada with the united states supreme court looked at in that case is did the united states litigate the fall implied reserved water right for the reservation and it found that it did and it relied very heavily on the complaint in the order which litigation you can compare the complaint there to the complaint here and and with the exception of the quantities of water sought and the in the names pyramid lake and seek and here the united states sought a lot more water than they got which would have required a lot of expenditure of funds in order to put the land in a couple of eight thousand acres they weren't limited by the fact that they didn't have congressional appropriations to develop all of that land and the fact that during the litigation the united states came up with money to build a reservoir doesn't change the claim that if the united states came up today with one hundred million dollars to build an even bigger as for that's not going to give rise to an implied reserved right just or more water for the reservation it's simply not relevant the focus is on what was intended when the reservation was set aside and that's the quantity and it doesn't go up or down based on the size of congressional appropriations to to build facilities so we think that the one potential exception that these would be briefed further down the line that the however once judge ruled on that i mean it was it was so clear in this case i think that it was proper for judge jones to rule on that issue and if you look at the headwaters case which is relied with the parties that had the previous litigation because they had a new name and or it was a different groups that were that were suing although they were using the same lawyer in the court said well that's a question of fact but in this case you still have the united states and the tribe and the other water users including the department of wildlife on the system but so there's no question interest could possibly be served by just tricked by just a court deciding this question with out even allowing the parties to brief well i think it's a it's a matter things if you look at justice brennan's concurrence in the nevada versus united states case i think you said it very well there he said he said in the final analysis our decision today is that thousands of small farmers in northwestern nevada can rely on the specific promises made to their forebears two or three generations ago solemn nies than a judicial to create and despite the strong claim of the pyramid like client and what he's talking about there is this this this water sued again for their federal reserve rights so that all these rights have been through to decree proceedings that each lasted about fifteen years and it's time to put a stop to that none of the cases cited how it's the supreme the united states  court allowed the united states to keep coming back over and over again i mean who wants to to wonder whether they're going to have water in their house and have to you know litigate against high powered attorneys like these these people here all the time over their water rights this is the third go around for the united for these water rights and so you know under the so and that's that's the reason for the timing is because it's just not fair for the united states to keep dragging these people into that because it wasn't part of the earlier case the only thing the court allowed to be litigated in the arizona versus california case where the disputed boundaries they were specifically called out in the decree so everybody knew those were still and the supreme court didn't allow anything else to be litigated and in nevada versus california turn nevada versus united states i mean that's that's the seminal case where the where the supreme court said that we need to have phonology in these cases  that it's you know they said the very object the civil courts are stablished is to secure the peace and repose of society and they said in a footnote that there's nowhere where this is more important than in the area of water rights because we all know nobody can live this court has even held in in the one nine hundred thirty nine opinion that the this is the only source of water for the people on the walker river and so it's our position that you know although the timing is somewhat awkward it was appropriate for judge jones to in this litigation and stop stop the united states from continuing to claim more and more water rights and i think i have just a few seconds to go through the other elements residue caught in that there was a final judgment on the merit in this case when only one final judgment on the merits we've been through two and then finally whether they involve the same nucleus of facts the same nucleus the facts are obvious because they're claiming they need more water from the walker river and as a thank been discussed by the prior speakers we believe that the decree itself the decree itself bars united states from asserting its claims for additional water rights and i refer to paragraph eleven of the united states to assert the additional rights claimed rights paragraph fourteen of course provides research or a section for the court to quote modify the decree but in our view the word modified whatever it means  mean a claim for additional water rights because that talking is covered clearly and expressly and in paragraph a living of their creed usually usually end to a kind of we're referring to some kind of a prior case something at at a different number ok so there was a period of time in which in which the parties were able to come in and seek a modification some of the claims that the u s has here are based on modifications to the to the to the reservation that were gotten what the day after that's not to say that united states does not cannot pursue its claims in some other form there are assuming the doctrines of resident caught and lashes you know by the claims perhaps united states can initiate an action in a federal district court or state court or before a stated ministry body to assert its claims but our view is that the degree itself freezes the rights as of a period of time the date of the decree whatever that decree date happens to be and it doesn't because of the importance of the principle i talked about in the last case which is the principle of the finality and repose of water rights to create the decree obviously did not contemplate parties coming back before the court again and again would like first to address the question what was going on in the race do the kind of analysis here the the main issue is whether the same claim was being adjudicated in the counterclaims that had already been adjudicated in the degree litigation and there was no identity of claims because the court didn't allow development of the record here we weren't in a position to show that but as numerous references to the expansion of the reservation have established there there were new federal reserve water rights those new federal reserve water rights whether for all of these  only for the reservation only for the reservation and its reservoir whatever the district court did not distinguish among all these many many claims and simply threw them all out and said that they could be brought in some other forum under this court's law that incorrect first those rights didn't exist when the when the decree certainly didn't exist when the amended complaint was filed in one thousand twenty five and therefore were not reflected in the decree  did not for the most part even occur until after the create south became final they obviously should have been considered as appropriate subjects for modification of the decree if there the factual development of those individual claims suggested that the circumstances did not render them appropriate for modification of the decree the court was free to make that conclusion obviously this is equitable discretion that bridgette enough to serve to respect the rights that have been previously litigated in the water water rights decree now in this particular water rights to curry the the claims that were brought in nine hundred twenty four were only one claim to allow that reservation to use sufficient water to be a homeland for the tribe and to enjoin upstream uses that would interfere with that mr dipali mentioned the that the claims that have been brought in include sources that may or may not even affect the flow of the walker river but all that says is that even if those rights were incorporated into the creek there would be no impact on existing uses so there really isn't a good reason not to incorporate them and under this court's clear invocation in the more for case of th doctrine of prior exclusive jurisdiction only the district court could consider or administer those right so by suggesting that there are other appropriate forms or that it was appropriate to which is supposed to be to administer all of the rights that are that are raised by virtue of the existing decree after the crease entered as to whether certain rights should have been brought in the in the one nine hundred twenty four complaint in this case that's exactly the error we're talking about the district court should have considered on a case by case basis the very the individual claims that were raised here many of them as i mentioned may not have had impact on any other users many of them may not have existed at the time that the complaint was filed if those circumstances if that if the circumstances of those claims were such that they did not constitute appropriate subjects for modification the court was free to exclude them or an individual basis but the wholesale rejection of all of them was clearly erroneous and should be reversed and this court as we emphasized earlier does not appear to believe that its duties go to that kind of level of detail it seems to want to move things along get things accomplished and i believe one of the eight minutes that was just made was that the difference between the claims here that were raised after the decree and the ones in arizona against california that were allowed to be incorporated were that everybody knew that the claims in the arizona be california case were as yet undetermined well nobody knew that with respect to things that hadn't even happened yet in this case like the expansion of the reservation and i don't think that that distinction appropriately excludes federal reserve water right for those later reserve lan