FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff,

and

PYRAMID LAKE PAIUTE TRIBE OF

INDIANS,

No. 04-16032 Petitioner-Appellant,

D.C. Nos.

v. 

CV-73-00003-LDG

TRUCKEE-CARSON IRRIGATION EQUITY A-3

DISTRICT; CITY OF FALLON; CITY OF

FERNLEY,

Defendants-Appellees,

NEVADA STATE ENGINEERS,

Respondent-Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

and

PYRAMID LAKE PAIUTE TRIBE OF No. 04-16033

INDIANS, D.C. Nos.

Petitioner,  CV-73-00003-LDG

v. EQUITY A-3

CITY OF FERNLEY, OPINION

Defendant-Appellee,

NEVADA STATE ENGINEERS,

Respondent-Appellee. 

15467
Appeal from the United States District Court

for the District of Nevada

Lloyd D. George, District Judge, Presiding

Argued and Submitted

July 7, 2005—San Francisco, California

Filed November 21, 2005

Before: Mary M. Schroeder, Chief Judge,

Michael Daly Hawkins and William A. Fletcher,

Circuit Judges.

Opinion by Judge William A. Fletcher

15468 UNITED STATES v. NEVADA STATE ENGINEERS
COUNSEL

Katherine J. Barton, Fred R. Disheroon, James B. Cooney,

U.S. Department of Justice, Washington, D.C.; Stephen M.

MacFarlane, U.S. Department of Justice, Sacramento, California, for plaintiff-appellant United States of America.

Robert S. Pelcyger, Fredericks Pelcyger Hester & White,

Louisville, Colorado, for petitioner-appellant Pyramid Lake

Paiute Tribe of Indians.

Michael J. Van Zandt, McQuaid Bedford & Van Zandt, San

Francisco, California, for defendant-appellee Truckee-Carson

Irrigation District.

Steve King, Mackedon & McCormick, Fallon, Nevada, for

defendant-appellee City of Fallon.

Paul G. Taggart, King & Taggart, Carson City, Nevada, for

defendant-appellee City of Fernley.

Michael L. Wolz, Office of the Nevada Attorney General,

Carson City, Nevada, for respondent-appellee Nevada State

Engineers.

15470 UNITED STATES v. NEVADA STATE ENGINEERS
OPINION

W. FLETCHER, Circuit Judge: 

This appeal arises from efforts by the Pyramid Lake Paiute

Tribe of Indians to apply some of its Truckee River water

rights, as established under a 1944 federal court decree, to instream use rather than irrigation. The district court held that

the Tribe was entitled to change the use of the water rights,

but was not entitled to apply the transportation loss portion of

the rights. We affirm. 

I. Background

The Truckee River originates in California, flows into

Nevada, and terminates in Pyramid Lake. The lake is the principal natural feature of the Pyramid Lake Reservation. Acting

under authority granted to it by the Reclamation Act of 1902,

32 Stat. § 388, the federal government initiated the Newlands

Reclamation Project to divert water for irrigation from the

Truckee and Carson Rivers. Because private landowners and

the Indians of the Pyramid Lake Indian Reservation held preexisting water rights, the United States brought suit in federal

district court in 1913 to quiet title to all water rights in the

project area. More than thirty years later, the federal district

court in Nevada entered a final decree adjudicating water

rights in the Truckee Division of the project. United States v.

Orr Water Ditch Co., Equity No. A-3 (D. Nev. 1944). Known

as the Orr Ditch Decree, it allows owners of water rights to

change the “place, means, manner or purpose of use of the

waters to which [the owner is] so entitled,” as long as they do

so “in the manner provided by law.” 

The Pyramid Lake Paiute Tribe of Indians and the United

States, as trustee for the Tribe, sought in 2001 to make temporary changes to two water rights provided by the decree,

Claim Nos. 1 and 2. They sought to change the use of water

formerly used for irrigation of Indian lands so that it would

UNITED STATES v. NEVADA STATE ENGINEERS 15471
flow unimpeded into Pyramid Lake, where it would help preserve the Tribe’s fishery. Following the procedures specified

in the Orr Ditch Decree, the Tribe and the United States

applied to the Nevada State Engineer for an initial adjudication. On December 6, 2002, the Engineer issued a ruling

granting the applications in part. The Engineer allowed the

Tribe to transfer the majority of the acre-feet it had requested

to fishery use (approximately 85 percent of its request under

Claim No. 1, and approximately 73 percent of its request

under Claim No. 2), but did not allow the Tribe to transfer the

remaining portion of the claims. These remaining portions

were transportation losses which, in the view of the Engineer,

could not be transferred to a use that did not entail such

losses. 

In January 2003, the City of Fallon and the Truckee-Carson

Irrigation District appealed the State Engineer’s ruling to federal district court. In their appeal, the City of Fallon and the

Irrigation District invoked Nev. Rev. Stat. § 533.450(5),

which allows a party to obtain an automatic stay of the State

Engineer’s ruling on a change application upon timely request

and the posting of a bond. The district court issued the

requested stay. The United States and the Tribe appealed,

objecting that the Federal Rules of Civil Procedure, rather

than the Nevada water law statute, should apply. We affirmed,

holding that the stay procedure was an inseparable part of the

Nevada water code and was thus applicable to proceedings

under the decree. United States v. Orr Water Ditch Co., 391

F.3d 1077 (9th Cir. 2004), amended by 400 F.3d 1117 (9th

Cir. 2005). 

On March 9, 2004, the district court decided the merits of

the underlying appeal from the State Engineer’s ruling. See

United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245

(D. Nev. 2004). The district court largely affirmed the Engineer, upholding his decision that the Tribe is entitled to transfer its water rights under Claim Nos. 1 and 2 from irrigation

to in-stream use in furtherance of its fishery in Pyramid Lake.

15472 UNITED STATES v. NEVADA STATE ENGINEERS
Parties on both sides appealed. This court dismissed the

appeal of the Irrigation District pursuant to a stipulation of the

parties. All that remains is the appeal by the Tribe and the

United States. 

II. Mootness

[1] The period encompassed by the temporary transfer in

this case ended in November 2004, but the question at issue

in this appeal will almost certainly arise again. As we noted

in Orr Water Ditch, 391 F.3d at 1080, the United States and

the Tribe are “repeat players” who have stated that they intend

to file virtually identical temporary transfer applications in the

future. Temporary transfer applications may involve changes

in water use that are of brief duration such that the period will

inevitably expire before any appeal can be heard. Thus, for

reasons similar to those stated in our previous opinion, this

case falls into the exception to mootness for cases “ ‘capable

of repetition, yet evading review.’ ” See id. at 1080-81 (quoting S. Pac. Terminal Co. v. Interstate Commerce Comm’n,

219 U.S. 498, 515 (1911)). 

III. Standard of Review

In proceedings under the Orr Ditch Decree, we review the

State Engineer’s factual determinations to see if they are

“supported by substantial evidence.” United States v. Alpine

Land & Reservoir Co., 291 F.3d 1062, 1071 (9th Cir. 2001).

We uphold the State Engineer’s legal conclusions as long as

they are not contrary to law. Id. Although we consider the

State Engineer’s interpretations of Nevada statutes “persuasive,” they are not controlling. United States v. Orr Water

Ditch Co., 256 F.3d 935, 945 (9th Cir. 2001). We review de

novo the district court’s conclusions of law. Id.

IV. Discussion

[2] The only question squarely presented in this appeal is

whether the Tribe may transfer the transportation-loss compoUNITED STATES v. NEVADA STATE ENGINEERS 15473
nent of its decreed water rights under Claim Nos. 1 and 2.

Under the Orr Ditch Decree, the Tribe is entitled under Claim

No. 1 to a maximum of 14,742 acre-feet of water per year to

irrigate 3,130 acres of Reservation bottom lands. It is entitled

under Claim No. 2 to a maximum of “one-fortieth of one

cubic foot per second.” This equals a maximum of 15,344.55

acre-feet of water per year to irrigate 2,745 acres of Reservation bench lands. Orr Water Ditch, 309 F. Supp. 2d at 1247.

These maximum figures include an estimated amount of water

that will be lost in the process of transporting the water from

the river to the irrigated land. 

The Decree specifically provides as to Claim No. 1 that its

allocations are based on “an estimated transportation loss of

fifteen percent.” It further provides that the maximum amount

of “water . . . diverted shall not exceed 4.71 acre feet per year

for the aggregate number of acres . . . irrigated,” while “the

amount of water applied to the land shall not exceed four acre

feet per year for the aggregate number of acres . . . irrigated.”

(Emphasis added.) The Decree provides as to Claim No. 2

that the maximum amount to be “diverted” from the river is

5.59 acre-feet per acre per year, and the maximum amount to

be “applied to the lands,” after taking into account transportation loss, is 4.1 acre-feet per acre per year. 

[3] The Decree’s “general provisions” similarly state that

the maximum total allocation of water, described above, is

based upon an estimate of transportation loss. It explains that

the allocation may be modified depending on actual transportation loss: 

If it shall appear at any time in regard to the actual

use and need of water for irrigation that the amount

hereinbefore estimated and allowed to be diverted

from the river or stream into any ditch or canal is not

sufficient after transportation loss to deliver to the

land the flow allowed by this decree for application

to the land, the allowance or flow as fixed by this

15474 UNITED STATES v. NEVADA STATE ENGINEERS
decree for application to the land shall control, and

there may, and hereby is allowed to be diverted from

the stream a larger amount than the amount hereinbefore estimated for diversion from the stream, to

the extent necessary to supply to the land, after

actual transportation loss, the flow of water allowed

by this decree for application to the land. Whether

more or less than the amount hereinbefore estimated

for diversion from the stream by any ditch, the quantity of water diverted for irrigation shall in every

case be only such an amount as will supply to the

land, after actual transportation loss, the amount of

water allowed by this decree for application to the

land and the quantity needed for irrigation thereof. 

Thus, the constant maximum amount established by the

Decree is the “amount of water allocated by this decree for

application to the land.” In addition to this amount, the Decree

accounts for transportation loss by allowing an additional

“amount . . . estimated for diversion,” such that the water

applied to the land remains constant after taking into account

transportation loss. This additional amount may be adjusted

up or down based on actual conditions. 

The estimates for transportation loss in the Orr Ditch

Decree are based on the assumption that the water will be

used for irrigation. Water rights holders under the Decree are

not, however, restricted to that use. Instead, they are permitted

to change the use of their water rights, subject to the requirement that the change is accomplished “without injury to the

rights of other persons whose rights are fixed by this decree.”

1

Under the Decree, the baseline for the determination of injury

1The district court held that irrigation and in-stream uses were both “primary purposes.” It did not reach the question of whether the Tribe was

entitled to transfer its use from irrigation not merely to another “primary

purpose” but to “any lawful purpose.” 309 F. Supp. 2d at 1253. We also

do not reach that question. 

UNITED STATES v. NEVADA STATE ENGINEERS 15475
to junior appropriators is the conditions that existed at the

time of their initial appropriation. Notwithstanding this right,

however, the Tribe is entitled to use the total amount to which

it is entitled under the Decree, regardless of whether it has

historically put the water to beneficial use. See United States

v. Adair, 723 F.2d 1394, 1406 n.11 (9th Cir. 1983) (declaring

that “reserved water rights are established by reference to the

purpose of the reservation rather than any actual beneficial

use of water”). 

In this case, the Tribe applied to transfer temporarily the

place and manner of use of 9,941 acre feet per year of Claim

No. 1 and the entirety of Claim No. 2 (15,344.55 acre feet per

year) from irrigation to in-stream fishery use. The State Engineer allowed the transfer of 8,420 acre-feet for Claim No. 1,

and 11,254.5 acre-feet for Claim No. 2. These figures represent the amount of water the decree allows for actual application to the land. They exclude the amount allocated to

transportation loss. 

Both the State Engineer and the district court refer to the

portion of the water right actually delivered to the land as the

“water duty.” Compare United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 854 (9th Cir. 1983). In holding that

the Tribe is entitled to transfer only the “water duty” component of its Orr Ditch rights to an in-stream fishery use, the

State Engineer did not resolve the issue of whether the Tribe’s

water rights under the Orr Ditch Decree included the water

allocated to transportation loss. Instead, the Engineer relied on

the Decree’s “no injury” provision, finding that there would

be a “potential of impact to storage and consequently injury

to other water right holders”

2

 if the transportation loss amount

2Appellants dispute this finding. Appellants acknowledge that, in general, the “no injury” rule would preclude the transfer of transportation

losses to other uses because it would reduce the return flows to the

Truckee River. However, in this case, they argue, there are no downstream

users from the place of diversion of the Tribe’s water right who would

receive return flows from the Tribe’s use of water for irrigation. Because

we do not decide the case on this ground, we need not resolve this issue.

15476 UNITED STATES v. NEVADA STATE ENGINEERS
were to be included, and that, because the transfer application

was for one year only, the Tribe would not be harmed by temporarily denying it the transportation loss amount. The State

Engineer noted that this ruling was “not prejudicial to consideration of the issue on future applications.” 

The district court affirmed the State Engineer’s ruling on a

different ground. The court noted that the Decree’s General

Provisions provide that the amount allocated to transportation

loss is only an “estimated” one, which can be increased or

decreased as conditions demand. The court thus reasoned that

under the Decree the Tribe is entitled not to the total amount

of water it is entitled to divert, but only to the maximum

amount of water it is permitted to apply to the land. Orr

Water Ditch, 309 F. Supp. 2d at 1256. 

Appellants argue that the Tribe is entitled to the transportation loss water based on the language in Claim No. 1 providing that, for irrigation of the Pyramid Lake reservation, the

United States is “entitled and allowed to divert . . . an amount

not exceeding 14,742 acre feet of water in any calendar year.”

They also base their argument on similar language in Claim

No. 2 providing that the United States “is hereby and will be

allowed to divert water . . . to the amount of one-fortieth of

one cubic foot per second.” This language, they argue, creates

an unqualified entitlement to divert water up to the overall

maximum. As discussed above, however, this entitlement is

modified by the requirement that the amount applied to the

land not exceed four acre-feet per acre for Claim No. 1 and

4.1 acre-feet per acre for Claim No. 2. 

[4] We disagree with Appellants (and agree with the district

court). The specific provisions of Claim Nos. 1 and 2 set forth

maximums both for water that may be diverted and for water

that may be applied to the land. The General Provisions cited

above further clarify that the maximum diversion allowances

are merely “estimated,” and that if they are either overly generous or insufficient in light of actual transportation losses,

“the allowance or flow as fixed by this decree for application

to the land shall control.” Thus, under the Decree, if the Tribe

UNITED STATES v. NEVADA STATE ENGINEERS 15477
incurs a smaller transportation loss than the decree’s estimates

allow, the Tribe does not gain the right to apply the unused

portion of the transportation loss to the land. Conversely, if

transportation losses are greater than the Decree’s estimates,

the Tribe is not required to reduce the amount of water it

applies to the land; instead, it may increase the amount of

water it diverts. That is, the amount of water to which the

Tribe is entitled for transportation loss fluctuates depending

on real-world conditions, while the amount of water the Tribe

may use to apply to the land remains constant. 

[5] The Tribe’s transportation loss right is thus inseparable

from the actual conditions of irrigation. In consequence, if we

were to agree with the Tribe that it is entitled to transfer to instream use the water allocated to transportation loss for irrigation, we would have to direct the State Engineer to make a

year-by-year assessment of how much water, under current

weather and soil conditions, would actually be lost if the

Tribe used its water right to irrigate its lands rather than to

support its fishery. Such a rule would be difficult to administer and would create considerable uncertainty. Moreover,

because such a rule would require the State Engineer to apply

beneficial use principles in estimating the amount of water

that would reasonably be lost from year to year, it would also

be in tension with our general approach to the Tribe’s water

rights under the Decree, under which we do not subject the

Tribe’s rights to any beneficial use requirement. We think it

unlikely that such a result is contemplated by the Orr Ditch

Decree. 

In part because the transportation loss amount changes

from year to year, the Water Master responsible for administering the Decree has taken the position that the transportation

loss component is not transferrable. Before the State Engineer, the Water Master testified that, in his judgment, the

water available to the Tribe for transfer was “the duty as allocated, the water times the number of acres, so it would be the

amount of water that’s actually decreed for use and I do not

15478 UNITED STATES v. NEVADA STATE ENGINEERS
believe that the loss in the various canals would be subject to

transfer.” The Water Master based this opinion on the variability of the transportation loss “from ditch to ditch based on

the length of the ditch, et cetera,” and his understanding that

in the past “the State Engineer . . . when they’ve made transfers has [not] allowed for the loss.” The Water Master thus

also construed the Decree as limiting the Tribe’s entitlement

to the amount of water decreed for application to the land,

supplemented by transportation losses only to the degree that

such losses are actually incurred. 

[6] This understanding is also supported by explicit provisions in the Alpine Land Decree, an adjudication of water

rights in the Carson River portion of the Newlands Project.

See United States v. Alpine Land & Reservoir Co., 503 F.

Supp. 877 (D. Nev. 1980), modified by 697 F.2d 851 (9th Cir.

1983). Because the Alpine Land and the Orr Ditch decrees

concern the same reclamation project, we have often used

interpretations of one to construe the other. See, e.g., Orr

Water Ditch, 391 F.3d at 1081; United States v. Alpine Land

& Reservoir Co., 341 F.3d 1172, 1180 (9th Cir. 2002). We

find it significant that the Administrative Provisions of the

Alpine Land Decree explicitly exclude transportation loss

amounts from the water right that may be transferred, providing that “[c]hange of manner of use applications from use for

irrigation to any other use and changes in place of use applications shall be allowed only for the net consumptive use of

the water right as determined by this decree.” (Emphasis

added.) 

[7] At oral argument, Appellants contended that the

absence of such an explicit provision in the Orr Ditch Decree

could be construed to suggest that change applications under

that Decree are not similarly limited to consumptive use.

However, because the Orr Ditch Decree clearly limits the

water right to the amount allocated for consumptive use plus

actual transportation loss, Appellants’ interpretation is

implausible. Instead, we think it more likely that the Alpine

UNITED STATES v. NEVADA STATE ENGINEERS 15479
Land Decree simply makes explicit what the Orr Ditch

Decree assumes — that the transportation loss component of

the right becomes irrelevant when water is transferred to a use

that does not involve transportation loss. We note that a

Supreme Court decree adjudicating water rights in western

states has also taken this approach. See Arizona v. California,

439 U.S. 419, 422 (1979) (decree establishing priority of use

of Colorado River water providing that if water was used for

non-consumptive purposes, the amount used could not “exceed the consumptive use that would have resulted” if the

water had been used for irrigation). By contrast, Appellants

have not pointed to any cases or decrees clearly allowing

transfer of transportation loss allocations to uses that do not

incur any actual transportation loss. 

Appellants’ final argument is that the rules for adjusting

transportation loss in the General Provisions of the Decree are

intended only to restate the “no injury” rule as it applies to

junior appropriators, whose rights are limited by the amount

of water that is put to beneficial use. A junior appropriator

who wishes to transfer an irrigation right may only transfer

the portion of her right that, historically, she has beneficially

used, including only the amount actually incurred in transportation loss. If she uses less than the total granted to her under

the Decree, she cannot increase her use to the total without

being found to have injured other users. Appellants argue that

the Tribe, by contrast, is not a junior appropriator and is not

subject to the beneficial use requirement; therefore, this portion of the Decree does not apply to it. 

The terms of the General Provisions contain none of the

limitations Appellants seek to read into them. The transportation loss provision is not limited to junior appropriators.

Instead, the provision states that “in every case” the maximum

quantity of water to be used is limited to “the amount of water

allowed by this decree for application to the land.” (Emphasis

added). It is true, as Appellants argue, that this part of the

Decree speaks in terms of irrigation use and does not specifi15480 UNITED STATES v. NEVADA STATE ENGINEERS
cally provide that the same standards will apply to nonirrigation use. But the General Provisions must be read

together with the language of Claim Nos. 1 and 2, which limit

the amount of water the Tribe may apply to the land regardless of the amount of transportation loss. There is nothing in

the Decree to suggest that the Tribe’s water rights are greater

when water is used for a purpose other than irrigation. 

This case does not present the question of whether, if a

non-irrigation use results in losses analogous to transportation

losses for irrigation, the Tribe should be permitted to divert

additional water to account for such losses. The record does

not indicate whether an in-stream use such as fishery would

result in any losses at all. The Water Master did not rule out

the possibility that in-stream use might result in some loss,

although he did note that the amount of loss would be “difficult to determine.” The district court found based on the

record before it that “as the transfer applications establish the

Tribe will be applying the water to the proposed use starting

at the point of diversion, no actual transportation losses can

occur.” Orr Water Ditch, 309 F. Supp. 2d at 1257. However,

if the Tribe can demonstrate in future proceedings that such

losses occur for in-stream fishery use, it should be permitted

to argue that it is entitled to divert additional water such that

the amount actually applied to in-stream fishery use is the

same as the amount of water the Tribe is permitted to apply

to irrigated acreage pursuant to the Decree. 

Conclusion

[8] We hold that the district court correctly concluded,

under the terms of the Orr Ditch Decree, that if a new use

entails no transportation loss, the water allocated to transportation loss for irrigation use may not be transferred to that

new use. We do not decide other questions raised by Appellants. 

AFFIRMED. 

UNITED STATES v. NEVADA STATE ENGINEERS 15481