our efforts into issues and time and the issue division is nevada related issues than california related issues than it is the lake in the bas and as to the lawyers i am going first on the nevada side representing the national fish and wildlife foundation for eight minutes then mr bank will go second for five minutes representing the nevada state group will go for five minutes on the is the lake in the basin and we asked to reserve eight minutes for rebuttal and were prepared as judged by the mention to attempt to try prior pieces of the total but taking that as my cue this is an enormous range of complicated issues on which you've received hundreds of pages of briefing for the whole morning i would like to skip the usual introductory remarks and factual background because you have all of that in the briefs i proposed to drill directly on to what i suggest is the core issue at least for this first group of cases and where the nevada issues in particular and that is does state water law apply and govern the change applications under the walker  and the there are about seven words that really matter in the order of the district court we refer to it as order thirteen forty because that is the docket number under the e c f system so for shorthand that's the best way we came up with and talking about it no matter the respective priorities one hundred words and historical use that's the second and i went back and forth many times in trying to decide and how to argue to you about whether the district court simply misapprehended nevada water law on these subjects or whether this district court intended to subvert or jettison nevada water law on these subjects but the briefing from the court's enforcement arm because that's what the board of water commissioners is supported by the court to implore says the decree the briefing by the board makes absolutely clear that it intends to argue and have it be the position on the order that state water laws should not apply that the walker river decrees should be this little fiefdom of decree law which is untethered to nevada water law california water law much less ninth circuit law and us supreme court law all of which teach us that we should be looking to state water law both procedure and substance when dealing with change applications under these interstate decrees in to the first point in the order the court wrote a user need only show that another users use impairs his own rights no matter the respective priorities and then the court commanded the re manned to the state engineer and that the state engineer quote determine the average total number of days per year historically called for water and to limit  approval of the change application accordingly those two pieces absolutely are one hundred eighty degrees wrong as to nevada water law for you to because without a water law allows the water user with a creek right holder whole exercise of his or her right even with a lapse and that is in trying to and in nevada water law both in statute and in supreme u s season about a supreme court decisions and then multiple decisions of the record judges on the secular of a decree of the alpine decree and this court the quantity of precedent involving the application of nevada water law to decree changes and decree issues in general is pretty astonishing when you search the or ditch decree or the alpine decree or t consumptive use means right now in amman so i don't think so your honor the state engineers ruling already defined and quantified the consumptive use in a specific amount both quantity and flow but what about timing well timing is allowed under the decree from the first day to the last day of the earth geishas season and the state engineers scientific evidence which resulted in the three point one acre foot breakers limitation on consumptive use took into account all of these variables we're now discussing in the briefing and first in the briefing i might point out not raised in attacking  study at the state engineers hearing or even at the district court level because the phone in the record is the description of what's contemplated in that quantification variable starting times different cuttings different weather all of that is envelops into that three point one and then the conclusion of the state engineer and the limit the stablished by nevada law is really in phrase the other way around we're not allowed to enlarge our right and the three point one and its conversion into the flow rate establish exactly that consumed that it would be sort of miss administered because there had been a cutting because he historically cut in the mason valley on june third and therefore didn't call for the water on june third so does that is that significant in any way to the farmers it is not for several reasons your honor one of the primary ones being the principle of rotation them to perth well what rotation that being that water is running down the do it i use it to flood  field i stop my flooding it flows down the ditch to the next guy he floods his field it's not like there's a delivery of a certain number of molecules to my farm and then that delivery stops and then something else happens upstream rotation is one of the founding principles of the fission use in western water law so you have both rotation and the contemplation in the state engineers study that the three point one limitation is what was used by the plants that's what's gone from the system when the irrigator has used his water and so having that depart from the system by staying in the system in other words running in stream down from the point of law on the verge of going hurt nobody but if if if you if every june third a junior user knew that the senior user was planning on taking the first c because in the first place there is no such thing as an always on june third if it's raining on june third they may do it on june fifth and if there's not enough water in the system they may only get three cuttings there is no water for fourth cutting the variability of all these factors is is built into the total figure that's allowed under the state engineers ruling and the water master himself stated that he was able to administer the quantities allowed in the state on behalf of the nevada state engineer this morning i plan to address three factors first the district courts why the district court's order erroneous lee ri man's back to the state engineer to conduct the very analysis which the process and gave by the state into near and making his findings and finally to answer any questions of this court may have with respect to the state engineers process and procedures in this regard the district court's order irrigation water requirements for nevada and utilizing that scientific data and that scientific study the state engineer in looking at the totality of facts and circumstances was able to make the determination that do not injure existing rights the methods that were used in the study began at the state engineers experts at the record at page ten ninety eight and i would note that beginning a page eleven twenty one these calculations as was already addressed by mr springmeier include simulations of cutting periods of time when water is cut off and michelin late crop stages  crop surface crop geometry so oil characteristics root growth precipitation runoff simulated irrigations among many other factors and these factors were specific to the mason valley area it took into account the weather precipitation patters and many other factors so all of this data was included in making that determination of portion has not been challenged but what the but the issue of it is that that's not the three point one acre feet that's directly being attacked although that's now being raised with regards to this particular pill and that was a challenge below before the state  district court rockley but the issue is that what is happening is by judge jones as decision by the district court's decision what it's asking to do is there's already been a reduction in limitation and minimisation of that water right now what's happening is all those factors which were already considered the state engineer has been directed to go ahead and further reduce based upon some unknow and i'll get to that in just one more but before you do  saying it that you get to know both of you and then proceeds to list a whole bunch of factors which are all nearly identical to those found in the administrative procedure act and that's not a noble review so i'm in the same paragraph i've got mixed signals in that in those  to his particular decision to quit the district court under that did overall review standard seven point nine have decided to rehear all of the evidence that was heard before by the by the engineer i would challenge that that the answer would be no but but since he didn't isn't the obligated then to review it under more like an a p a like review look for substantial evidence that would be my position i'm out of time your honor ok storage it is not part of the rivers natural call and is not is not natural flow and is not subject to the call of the river the district court's ruling missed the point of mental difference between changes to a natural flow water right and changes to stored water and misinterpreted the relevant california statute which allows the amount of change to be either in mt consumptive the used or the amount story successful water marketing does the water district have read right the the water rights the district appropriated the water as allowed by the new that irrigation district act the there are the two california licenses for the ok maybe i'm not maybe i'm not don't understand us well enough to ask the question right i'm still what i'm still asking whether the water district itself is a decreed owner whether they have rights in the river itself i understand or storing water do they have  yes ok now are the are the lessees the people who are getting water from the district are any of them to create owners of water or they or the or they simply do they simply have leasing contractual rights to two parts to that your honor the district when it allocated the stored water it allocated some of that water to be supplemental to people who have natural flow rights so that their natural flow rights which aren't fully satisfied they can call on stored water to supplement the district also allocated water to what is referred to as new land which is people who have no natural flow rights so the answer is that  via the decree they come to that via the allocations under the air base and district act itself but whether they receive the water or not it's a matter of a contractual right now the words they don't receive  purposes of california yes but a law for when it crosses the state board i think you have to analyze it under california law but i do not think the law is different in either state your honor the california case law is pretty is very clear that the owner of stored water is not required to abandon any part of that water for the benefit of the natural flow a statute which specifically says that stored water may be placed into a natural stream mangel took with the water in that stream and then reclaimed and that's in my judgment absolutely consistent with the nevada law that the the district court here did not find any injury to natural flow rights even though the us board claims there was and the reason there no injury is what i just said that there is no requirement that return flow be in the stream for a natural flow rights and so there is no requirement that a natural flow rights  there's no requirement be limited to a consumptive used to satisfy natural flow rights what the district court seemed to be concerned with was the other parties who have stored water who might not participate in the stored water program somehow not getting their water if the amount wasn't limited to the consumptive use as i indicated california law in the relevant statute says it's but it's limited to either the artificial it wouldn't be there but for the storage districts rights are an example the water is stored during an irrigation season or when all other rights are being satisfied and so if it hadn't been stored it would have been all the way downstream it would not have served any water right in terms of injury to the storm water users of the district first of all the court treated their annual elevations by the district as if they were decreed rights or not but even if they were they're not injured and the best way for me to explain that is to give you an example of what would happen to ten acre feet in a reservoir if it's used for and compared to what happens to ten acre feet in the reservoir if it's used for in stream flow if it's used for occasion it's released from the reservoir ten acre feet reservoirs down ten acre feet you don't know what the consumpti non consumptive portion is until it gets downstream and somebody actually uses it the same result for the in stream flow the water is released ten acre feet go out reservoirs in the exact same position it's down to ten acre feet the one thing that the district court was concerned with as well was releases after the or gate and seize and somehow causing injury that really is a red herring this water is going to be released if it can't be released in the or asian season it will be released after two years or during the year season and the reservoir is going to be the same that year in the next year as it would have been had there not been a program in exclusion under the district court's reading of the decree of walker lake from the walker river basin now as our priests have made clear our view is that there is literally no support in the law or in reason for an exclusion of the lake from the walker river basin it doesn't jibe with any hydrological data or information or source material it's not commanded or even indicated in the to create itself  and if there is a plain meaning of that to create should be relatively apparent from looking at dictionary definitions and uniform and serials that that a river basin includes the bottom of the basin which in a closed  point out that there are numerous this definitions in each general usage dictionary and certainly in webster's second which would have been the authoritative dictionary at the time of the original to create and its revision in one nine hundred forty and under webster's first and the current edition of webster's which are the more standard ones the definitions that apply to physical geography or geology both of which would be a political here clearly clearly explained that the bottom of the basin is contained within the basin so judge jones in our opinion  a dictionary and chose one among several definitions of the dictionary that through a strained reading could be made to justify a counterintuitive explanation for the language of the degree wunderlich were not terminal like but there was a pass through in other words to include the like right yes in every statutory definition as well as the dictionary definitions indicate that and don't leave any doubt about it a basin contains everything right down to the bottom of the basin now of course when you talk about a river basin the flows into the ocean you don't typically include the ocean because then you're talking about the larger basin and and that's that's where sometimes you might say that a basin and without including the destination of the water at the bottom of the basin but in any kind of closed basin that would have to include a lake or a wetlands or apply or sink at the bottom and certainly as you've said any reservoir or any natural lake within the drainage system on the way down towards the bottom would be contained and there would be no question about that  a ruling requiring greater recognition of the work of a prior tribes water rights bay those decisions those contemporaneous court rulings in views describe the walker river basin or valley as containing the lake and refer to historical materials going back to the mid and late one nine hundred century that also reflect a description that just took it for granted as you would think common sense would indicate that the lake was part of the basin was part of the valley of the walk and and as we pointed out the the standard materials that the u s geological survey and california and state water agency the state water resources control board in california and the state engineers office in valley they both have to find historically the walker river basin as including the lake and indeed including the the hills or mountains to the east of the lake that also drain into the lake so it's clear that they have adopted consistently and  the courts in their original rulings when the decree was issued adopted a view that makes more sense and is consistent with science namely that the entire area in which the drainage heads towards the bottom in the walker river basin includes the lake and  includes drainage areas to the east and to the north of the late in the don't drain into the river itself my time is up decree was written so that the water is used as many times as possible throughout the system by as many users as possible throughout the system and the water master stuff the priority every day under the decree and if for some reason a senior water right holder under that cree is not using his right depending upon the natural flows in the system depending upon that for the return flows in the system depending upon the demand the water master may be able to change priorities allow more priorities to be served under that creek and therefore serve more users under the decree and the thing that's important to remember about that you create is the refill right that set forth in the decree specifically for the two reservoirs and that refill right is during the irrigation season and the other thing to remember is that  farmers don't call for their water every day because they can't use their water every day and it's like your garden you don't put water on your garden twenty four hours a day seven days a week for weeks on end because your garden is going to die that's the same with farmers they're not able to use their water every day during the irrigation season and so the state engineer enlarged the right than if a fright that's on called national fish and wildlife foundation enlarged and then if with right in the  three point one determination i am not determining that at all talking about the timing issues and why the district court judge was correct about the timing and and what the state engineer did just so you know what his calculations were he he multiplied the four point one two so to see a fast which is the consumptive use amount and he multiply that by the conversion that you do for make a feat to her and then he want to play by two hundred forty five days which is the tire irrigation season march first through october thirty first and that comes out to two thousand and three acre feet this is that reads opening brief on page forty three to forty four and this year's a really good example because of so much water loses some the water ministers pretty much been on full decree for not have called for the water every day because the farmer can't use the water every day then why under the nevada water law they don't have the right to call on that every day because they're expanding the use and and let me show you i can show you with the example in the consumptive use example that in the state engineers report that he but the war a war you know doesn't limit consumpti doesn't have the right to that amount of water that did the senior in this case and if with the senior decree holders going to be using more water then they are they don't believe the foundation is going to use three three point one acre feet at the end of the season which is how much  the prior appropriators would have used at the end of the season for as consumptive use correct that look at the timing of how the appropriator use that and you picked up on that in your question as my point there's nothing in it can you cite a case that has you know timing is a part of your you're right i can cite you to the real thing please i think we've got a june third problem because because prior because prior appropriators often cut their cut their alfalfa on june third and calling for its water every day when the water right isn't priority it's going to use its water more days per year than the irrigated use per year and if you look at the consumptive use but the overall water will be the same oh no no no no no no no no your honor no so if you look doesn't seem to jive with anything in that in the in the engineers report i thought that that i thought the three point the three point one and the four point one two to one being a flow rate one being a volume right we're going to be the same at the end of the year as the as the prior appropriators from which the foundation acquired its rights that's how much they're able to take per day and that's why the state and you multiplied it by two hundred forty five day right and so at the end of the grow at the end of the irrigation season the foundation w the simulations that they did for the consumptive use mr snyder use of the water that's the farmer that they used in mason valley he didn't start his use until march twentieth and he ended his use on september twenty eighth and then there were those four cuttings in between and under the decree nif the under the decree mr snyder would've called for his water until march twentieth every year and would have stopped using his water on september twenty eighth every year knew it was going to start calling for its water on march first of every year and it could be calling for its water until october thirty first of every writer but the calculation that is if from march first to the end of september or march twentieth to the middle of september the total water called for is going to be the same  of calling for those flows and by nif of calling for that right every day when it's when it's in priority it's using more water that the total number of days per year the judge took her total number of days i understand i understand but whether for water for four out of five days or call for water all five days if you still are calling for the same amount of water at the end by the end of the week what difference does it make but that's that was happening your honor if you call for four point one t c f s for four days versus four point one two two c f s for five days you're calling for more water and if that's true then at the end of the season your consumptive use would be for would be far greater wouldn't it totally that's the problem less each day then you would if you'd been the farmer because that's the only way to work out if you're calling for a more days but that's not the way that the state engineer granted the permit and that's not the way the state of near approved the transfer have the case in the state engineer prove the four point one to two times two hundred forty five days which is the entire your case right but it still gets you to three point one and that is the total consumptive you it gets to do way over three point one god i thought i did them i thought i thought we did the math in chambers i thought it came out you've got a farmer who says look i'm going to wear and will just use just use a five day week a five day watering week monday through friday says generally i only need water for five days because i don't want to over water so i'm going to call monday through thursday and i'm entitled to so much water so i'm only going to need twenty five percent each day and then the foundation comes in and purchases rights and says well we're going to call for the water we're going to call for every day so we only need twenty percent each day the end of the week same amount of water irrespective the user that there's a little bit a little bit difference there in the amount each day that's been taken i understand that right but that's not how they come for their water so they they can call for the whole consumes yes that's the amount that the crop consumed yes but they have stipulated they're only going to use three point one are you telling us that they're going to use more than three point one in the ever get they disagreed with the stipulation we disagreed with the stipulation so the total amount of water the end of the year is going to be the same i understand that it may change the flow rate each day or call each day but the total amount of water at the end of the year has got to be the same otherwise you just agree with the stipulation and the engineers findings are clearly erroneous is the farmer would have used four point one to two maybe times only one hundred days because of the variation and not being able to use the water if they're in they only use them one point one to two over a course of one hundred days then they would have used far less than three point one a at the end of the season right you know the crap would have consumed the same amount based upon the study that that's the that's just the crop part of i would i work through the math i thought i understood it and now i'm totally confused that's why you have to look at the days and the days that the farmer called for the water because the farmer is not going to call for the water every single day and so that that number that state engineer used the two forty five it's going to be a lot less and that's how the state order how many acre feet would be in effect attributed to consumptive use that the foundation is g  how the daily is very the target only amount to three point one no that's the part i disagree with well how much is going on to it depends on what the historical practices were for this   forty five days per year which is the irrigation season so if you look at mr snyder's let me can i try to explain it in the context of the state engineers study if you look at mr snyder use his his use for mason valley was using it from three twenty two did he ever call for more than four point one to two c f s welly on any given day well you would have but the consumptive use portion of that was only the four point one two two but if we had never get more than four point one to two minutes as as a as a flow rate well that was the amount that the crop use the flow rate would be a seven point seven four  five that's the amount that was delivered to the farm and then from the farm he used the consumptive use portion of that was the four point one two two and over the course of an entire season how much of that turned out to be an acre feet that that that the farmer use yeah well i actually haven't done that calculation but i can tell you how many days he uses water and it was a two hundred forty five days for the irrigation season i thought that the stipulation said that the prior appropriators had a use was three point one and is two different ways of sort of calculating that one is you can do it by the by flow times the number of days high or you can just go by total volume for focus on total volume that will tell us how much water they've actually used in the course of a season i thought the stipulation said that they used three point one that if they had if they had consumptive lee used all that they were entitled to it would be a whole lot more water than that right that's all correct ok so we only used so we used we took out of the system three point one acre feet across consume three point one acre feet doesn't none of that gets returned junior appropriators don't don't have any access to three point one acre feet per year correct and that's per day that forty five so you're multiplying the entire moment through the use times the number of days us why i'm confused where you're not saying it's either total or it's  a per day rate that's where i'm beginning to run well of course when they did the study they looked at the whole season and that's how they came up to three point one because they looked at what for the average but then of course it depends on honey acres you have that that's break and they multiply that by whatever was six hundred forty six acres in alfalfa right if that's what they preach was that that farmer had but but again the timing of it the judge was correct the timing of it is very important because it is again again as i just stated in the example we have a really long we have a really good water year right now and if we if we call for its water every day and the farmer wouldn't be calling for its water every day and this was going to be calling for the four point one to two c f s and and that's not what the previous irrigator that's not the amount of water that the previous irrigator used because they didn't use four point one to see a pass every day of the year you know but they did use three point one acre feet over six hundred forty six acres at the end of the year if yeah if that's if that's what they did if that's what they did but that's the maximum that's why the judge was so concerned about the timing and that's what the importance of the no injury rule is is that it is that junior appropriators can be harmed because of changes in the use by the senior appropriator that's going to impact the junior appropriators right and as we get back to the decree when the judge was concerned about is that there if there is an expanded use of this irrigation right by because they're going to be calling for the right every day then that's going to impact the users because they're not going to have an opportunity to store water under the decree under the refill right and rid did acknowledge it it's reply brief that the water right holder the storage right holder is the beneficial owner of that water right now what we're talking about we're talking about people who are who are leasing water the people lease the water the storage right owners right holders they're leasing the water to r decree because they're assessed like a natural flow right water right holder is that specifically called for under the decree that the assessments are made to all waters of the walker river including stored in storage water rights that the there is going to be unintended consequences if for some reason there is going to be a holding that those individual water right holders are not to create right holders because we have assessed them all for the last i don't know how it may be years under the decree as water right holders and we consider storage right water to be decree water the water minister operates the reservoirs the water minister is the one that allows releases from the reservoirs the water mastered keeps records of irrigated diversions from the river based on natural flow rights or whether there are storage water rights there is no distinction in the decree for the uses the irrigation uses as to whether it's a natural flow right or it's stored water right and there's no functional difference under the decree for the use of that irrigation water and i guess that's why the judge was very concerned moving over to the california decision because we make we make no distinction i mean it's all water used for irrigation purposes under that a creek in the system and that's why we're concerned about the california decision because the california decision apparently using california law decided that for that irrigation right in the transfer of the storage irrigation right that there didn't even need to be the deduction for the non consumptive use portion and that the whole nine consumptive use portion and the consumptive use portion of that irrigation right could be transferred to the industry blow and this court has held in the t c id case that you're a water right owner on a transfer large allowed to transfer the historical beneficial use specifically under irrigation right so it's confusing because we're transferring irrigation rights under california and  they have no functional difference under the decree and we're getting different rules from you know each agency as to how much can be transferred under that use and that's why it's really important that we get this all straight you know at the very beginning because there's a lot more transfers that i could be coming down through the years so the other thing i was concerned about with regard to who owns the water rights and ri and the topaz reservoirs and they were authorized to divert and store the water in the reservoirs for the benefit of its shareholders and that was the findings of fact it's on page twenty seven it's conclusion of law number nine and as i said r myths and it's brief that the story is right holders are the beneficial order owners of the water rights held by rid and the decree also recognizes that it's and section eleven that all persons claiming by through or under a party to the suit that they're in joint interest and from claiming any other right except as set forth in the decree and there are other water rights holders under th it creates that help hold their water rights for the benefit of well the valley mutual company they hold their their water rights for the benefit of their shareholders and of course the tribe hold water rights and the us for the benefit of the tribal members and i'm concerned about some unintended consequences that may occur if for some reason the people that we've been assessing and the water rights holders that we've been assessing for the last seventy years are now determined not to be decree right holders because for example one of our board members you have to be a board member you have to own water rights under the system and our tribal member that our tribal member that fits on our board you know doesn't is a allotment owner of water rights so there was no finding by the district court that the storage right holders were not junior right holders under that a creator there was no finding by california that the storage water rights holders were not junior water right holders under the decree there was no finding by the nevada state engineer that the water right holders stored right holders under the decree were not water right holders and then the last issue his to do with prohibition in the decree regarding water still not be sold or delivered outside the basin of origin and just going back to one nine hundred thirty six when these people were developing the language for that sabean later portion of that it created i mean they weren't using the term basin in a technical or a scientific sense because that they were writing some kind of hydrology report and obviously they judge this record judge was correct that the no export provision has to be read in light of the overall intent of the decree which was to preserve the waters of the walker river if they if the if the walker if walk lake were not a terminal lake but there were there was another extension of the walker river below that going at a down towards hawthorne you know question of the like would be part of the basin i totally agree ok totally why why is it not part of the bas was talking about who gets to take water out of the river but that doesn't mean that the lake is not part of the basin there may not be decreed rights in the in the water that makes its way into the lake but that doesn't mean is that sort of a practical whether we're talking about export rules to put water out of the river into the lake that it naturally flows into yet they would never allow that back then and the reason they would never allow that back then is because there's a multiple uses throughout the system of the water by as many users as possible and if and if the overall intent of the decree was to preserve the waters of the walker river for the beneficial owners of that of course they would have agreed yes that there is no water that's going to be sent over the hill to another basin except conway because that water then is taken out of this is sound and it's not allowed to be used for the used in the system and walker lakes the perfect example of that at the end of the system because it's downhill it's at the end of the system after all the other users there's no water right in walker lake there's no use on the other side of walker lake there's no way to pump water from walker lake back upstream so that there can be further uses by the what other water right holders in the system and so yes they never would have allowed water to be sold or delivered when it can be used up here multiple times they would never would have allowed it to be delivered or sold to walker lake because they would have been it would have been lost to the system it would and it would have been able to be further used in the system and that's why it's important that these in stream uses that well these irrigation rights that are you being transferred to in stream uses you're taking water out of the irrigation system and so it's really important when you're going to be taking water out of the irrigation system that you only take the quantity that the historical beneficial use a lot of the the the prior appropriators the senior cooperators from wh  that that some something or four point six would have come back into the system at least as of three point one i'm sorry that i'm sorry i'm sorry would have been three point three point six would have left us with four point one  four point one two two so they were taking some larger volume of water out of the river correct then then that then the foundational be taking out of the river that right we're taking out of the system that's available for irrigation for junior users downstream point one two two which is returning and the no the four point one is ice is what was i was what was used by the cross right and the that other number three point whatever that you said that was the amount that was returning as return flows to the system that could be for the use in the system right so that that water is still there today wouldn't it the three point one three point six three point six three the three point six is going to be still in the system will still be in a system that's that's what they that's that's what the junior users had with the prior appropriators was three point six right and they have three point six today right but the junior appropriators also had the senior water right holder not calling for their water on certain days so that they were able to use the water master was able to use the refill right if if there was he was on full decree and the water master was able to put water in storage in the water master it make adjustments to put water in storage today under under under this part of this proposal if there is not it create so that there's not as many people using not as many senior appropriators using their water rights and certain amount of days but if you're going to allow that in stream used to be every single day because you think the math works out like that then there's not going to be as much opportunity for the water master to put water in the storage reservoir can i clarify your point about the leg not being part of the basin because the t somebody is going to be extracting water from the lake but that's the whole endpoint of the river and so they've got to believe that once they've taken care of the users along the river flow that there's going to be a lake at the end of it and when they want to protect that lake well otherwise they could say ok we can use up all the water before you give store walker lake will find all sorts of uses for that what it what i am suggesting your honor is that they were concerned about their uses when the decree was being drafted they were concerned about their uses that were all upstream  saying they had no concern no thought about the end point of worth is water flowed through here i can just it's hard for me to believe that they didn't have in mind that at the end of the whatever the uses were up stream from the lake that there would be water running into the way we're going to get into that in the later case i know but the idea that somehow they were only focus and therefore the basin in their minds only  really part of the basin right because they were again they were there we're trying to preserve the waters of the off the river for the appropriate of beneficial uses that they had at that time  the yeah but i think that if they started at eight hundred sixty or where whatever they started you gating that and they were trying to protect the water right that they had established they were definitely trying to do that upstream you know and and again preserve because the water is reuse so much in the decree by buy as many users as possible depending on the conditions and also involve the public trust issue does reference in here to help to the walker river and seems to me that we have sort of three different terms to get used to walk a river walk or lake and walk or basin and it looks like in the way that congress use these terms but it assumed that the walker basin included both the like and the river basin right but it doesn't seem doesn't seem in it it seems that congress assumed that the that the lake was part of the basin and it doesn't it doesn't seem like that's not up not a common sense assumption you want argue that it's that we're going to have to do it that great idea to burke so the three point one takes into account all the things that the council was speaking of it takes into account the fact that the irrigation season may stipulation does is that it assures that at the end of the year the foundation has only taken the same amount of water out of the system that the prior appropriators would have taken out of the system is that correct it absolutely ok now if i if i understand this peterson's position on behalf of the of the board the board's concern is that what the that what the foundation is doing is taking and a flat line average amount every day and that the prior appropriators did not take a flat line average every day that varied and the fat will be will result in a sort of a misappropriation on a day to day basis for junior appropriators i don't think that's correct partly because when you think you don't think it correct you don't think that's your position or you think your position her position is not correct your honor that that the three point one takes into account that it's not a flat line every day and and so the fact that never with first of all no if we can only call for this water if it's in priority in the likelihood of it being priced in priority every day is is pretty slim with with the exception of years like this but but the three point one so there are other senior approach there are still thing your senior users of their senior foundation yes your honor and the other thing is is that mr springmeier mentioned rotation not only is rotational allowed by the decree farmers rotate with themselves so that so that if they're large enough they're not going to have all of their crops cut at one time they may have half the ranch cut and may still have the other half not caught in that so they can rotate water as long as  in priority they can use it every day on other land both of hope that the one point one to two is an average but so that that's an average flow rate for two hundred forty five days of irrigation season that adds up to the that converts to the three point one acre feet does that mean that the foundation won't necessarily get four point one to two c f s every day that likely will not because a priority do you help tell somebody they can irrigate because it's raining no do you tell someone when they should harvester crops know so the fact of the matter is people can call for their water when it's in priority but but that means then that the foundation may be calling for water on days in which it's prior appropriators wouldn't have called for water perhaps ok and that does represent a change that represents a change but not and on the ball off will change because a prior appropriators could have called for their water if they wanted to  may i quickly address the argument that we have two different rules here california and the state engineer did not apply to different rules they applied the same rule to different facts in the different facts were state engineer was dealing with the natural flow water right california state board was dealing with a stored water right and the difference between those water rights is the reason that one is limited to the consumpti no precedence here whatsoever first of all that was not a case dealing with stored water second the language of the judge quoted in that council quote is is language where the court was responding to an argument that the united states in the tribe made during oral argument it was had nothing to do with the holding in that case what so ever your honor would it be inappropriate for me to respond to your question on section seven point nine of the administrative rules no no it's been raised i was in a different spot when these rules were were written and the sent the first sentence of section seven point nine was added to the rules by judge read and the important part of that sentence is the last part where the court says the court shall conduct a dyno review of all the agency decisions regarding change applications which were recommend modification of the decree irrespective of whether any party files a formal request for judicial review and in my judgment what he was saying is i'm going to look at these  even if nobody's upset about it and as you point out your honor when you go on and read this it's pretty clear that he contemplates standard review under an a