FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff,

and

PYRAMID LAKE PAIUTE TRIBE OF

INDIANS,

Petitioner-Appellant,

v. No. 03-16654

ORR WATER DITCH COMPANY, D.C. Nos.

Defendant, 

CV-73-00003-LDG

and A-3-LDG

CHURCHILL COUNTY; TRUCKEECARSON IRRIGATION DISTRICT;

CITY OF FALLON; CITY OF FERNLEY;

TRUCKEE MEADOWS WATER

AUTHORITY; NEVADA STATE

ENGINEER,

Respondents-Appellees. 

2331
UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

and

PYRAMID LAKE PAIUTE TRIBE OF No. 03-16941 INDIANS,

Petitioner, D.C. No.

CV-73-00003-LDG

v.

ORDER ORR WATER DITCH COMPANY,

 AMENDING Defendant-Appellee, OPINION AND

and DENYING

CHURCHILL COUNTY; TRUCKEE- REHEARING AND

CARSON IRRIGATION DISTRICT; AMENDED

CITY OF FALLON; CITY OF FERNLEY; OPINION

TRUCKEE MEADOWS WATER

AUTHORITY; NEVADA STATE

ENGINEER,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of Nevada

Lloyd D. George, District Judge, Presiding

Argued and Submitted

June 24, 2004—San Francisco, California

Submission Withdrawn July 13, 2004

Resubmitted December 7, 2004

Filed December 14, 2004

Amended March 1, 2005

Before: Mary M. Schroeder, Chief Judge,

Michael Daly Hawkins, and William A. Fletcher,

Circuit Judges.

2332 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
Opinion by Judge William A. Fletcher

PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2333
COUNSEL

Robert S. Pelcyger, Fredericks, Pelcyger & Hester, Louisville,

Colorado, for the petitioner-appellant.

Richard G. Campbell, Senn Palumbo Meulemans, Reno,

Nevada; Michael J. Van Zandt, McQuaid, Bedford & Van

Zandt, San Francisco, California; Michael F. Mackedon,

Mackedon & McCormick, Fallon, Nevada; Rebecca Ann Harold, Fernley, Nevada; Gordon H. DePaoli, Woodburn and

Wedge, Reno, Nevada; Michael L. Wolz, Office of Nevada

Attorney General, Carson City, Nevada, for the respondentsappellees.

ORDER

This court’s opinion, filed December 14, 2004, slip op.

16855, is hereby amended as follows: 

At slip. op. 16864, in the second paragraph of subsection C, change “We have consistently held that

PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2335
state law governs applications to change the use of

water rights under the Orr Ditch Decree.” to “We

have consistently applied state law to applications to

change the use of water rights under the Orr Ditch

Decree.” In the third sentence of the same paragraph,

change “In reaching this conclusion, we have been

guided by the policies underlying the 1902 Reclamation Act, which the Supreme Court has construed to

require that “state water law . . . control in the appropriation and later distribution of the water.” to “In

doing so, we have been guided by the policies underlying the 1902 Reclamation Act, which the Supreme

Court has construed to require that “state water law

. . . control in the appropriation and later distribution

of the water.” 

With the opinion as amended, the panel has voted to deny

the petition for rehearing. 

The petition for rehearing, filed January 28, 2005, is

DENIED. No subsequent petitions for rehearing or rehearing

en banc may be filed. 

OPINION

W. FLETCHER, Circuit Judge: 

In this case, we consider whether a Nevada statute providing for an automatic stay of the State Engineer’s decisions

applies to federal proceedings under the Orr Ditch Decree.

Because we find that Nev. Rev. Stat. § 533.450 is an integral

part of Nevada water law rather than a generally applicable

rule of civil procedure, we conclude that it does.

I. Background

The underlying case arises from a 1944 federal court decree

quieting title to certain water rights in the Truckee River. The

2336 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
Truckee River originates in California, flows into Nevada,

and terminates in Pyramid Lake, 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 established 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 possessed pre-existing

water rights in the rivers, in 1913 the United States sued in

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

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

court in Nevada entered its 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, this decree allows parties to change

the “place, means, manner or purpose of use of the waters to

which [the party is] so entitled” as long as they do so “in the

manner provided by law.” Id.

Pursuant to this decree, 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,

Claim No. 1 and Claim No. 2 of the Orr Ditch Decree, in

order to allow water formerly used for irrigation of Indian

lands to flow into Pyramid Lake, where it would help preserve the Tribe’s fishery. Following the procedures mandated

by 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. Although the Engineer

allowed fewer acre-feet than the Tribe had sought, his ruling

was largely favorable to the Tribe and the United States. 

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

Irrigation District appealed the State Engineer’s ruling to federal district court in Nevada. In their appeal, the City of Fallon and the Irrigation District sought to invoke Nev. Rev. Stat.

§ 533.450(5), which allows a party to obtain an automatic stay

PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2337
of the State Engineer’s ruling on a change application upon

timely request and the posting of a bond.1 The United States

and the Tribe opposed the stay request. They argued that the

stay was a procedural matter that should be decided according

to the relevant Federal Rules of Civil Procedure — principally

Rule 65, which governs the availability of injunctions.2

Unlike Nev. Rev. Stat. § 533.450(5), Rule 65 cannot be

invoked automatically. Before issuing a preliminary injunction under Rule 65(a), the district court must give “notice to

the adverse party” and conduct a hearing. Subsection (d) of

Rule 65 further requires that a court order granting an injunction must “set forth the reasons for its issuance.” The United

States and the Tribe argued that the district court was required

to follow the more demanding procedures of Rule 65 before

reaching the decision to grant a stay. 

The district court rejected this argument. Noting that “[t]his

court has previously ruled in the Orr Ditch litigation that ‘in

the manner provided by law’ means in accordance with

Nevada state procedure,” it held that Nev. Rev. Stat.

§ 533.450(5) governed the issuance of a stay of the State

Engineer’s ruling. Applying this statute, the district court

1Nev. Rev. Stat. § 533.450(5) provides that “[a] bond shall not be

required except when a stay is desired, and the proceedings provided for

in this section are not a stay unless, within 5 days following the service

of notice thereof, a bond is filed in an amount to be fixed by the court,

with sureties satisfactory to such court, conditioned to perform the judgment rendered in such proceedings.” In Turnipseed v. Truckee Carson

Irrigation District, Nos. 33945, 34134 (Nev. Sept. 13, 2000), the Nevada

Supreme Court held that this provision authorizes an automatic stay “condition[ed] . . . on nothing more than a timely request and the posting of

a bond acceptable to the court.” 

2The United States and the Tribe initially suggested that Fed. R. Civ. P.

62(c), which provides for discretionary injunctions pending appeal, and

Fed. R. Civ. P. 62(d), which provides for an automatic stay in appeals of

money judgments, might also potentially be relevant. However, their argument on appeal focuses on Fed. R. Civ. P. 65. The precise federal Rule at

issue does not bear materially on the resolution of this case. 

2338 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
issued the requested stay upon payment of two $1,000 bonds

by the City of Fallon and the Irrigation District. 

The United States and the Tribe timely appealed. On March

9, 2004, while this appeal was before us, the district court

decided the merits of the underlying appeal from the State

Engineer’s ruling. The district court largely affirmed the

Engineer, sustaining the Engineer’s decision that the Tribe is

entitled to transfer the water rights under Claims No. 1 and 2

from irrigation to in-stream uses in furtherance of the Pyramid

Lake fishery. The effect of this ruling on the merits is to dissolve the stay issued by the district court on August 1, 2003.

The City of Fallon and the Irrigation District contend that the

district court’s decision renders the appeal moot. 

The district court’s ruling that Nevada law, rather than the

Federal Rules of Civil Procedure, governs the motion for a

stay is reviewed de novo. Abogados v. AT&T, Inc., 223 F.3d

932, 934 (9th Cir. 2000). (“A district court’s decision concerning the appropriate choice of law is reviewed de novo.”).

II. Discussion

A. Mootness

[1] As a preliminary matter, we must decide whether the

district court’s decision on the merits, which resulted in a dissolution of the stay, has mooted this appeal. The district

court’s decision puts an end to the parties’ immediate dispute,

but the controversy over the applicability of Nev. Rev. Stat.

§ 533.450(5) is “capable of repetition, yet evading review.” S.

Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S.

498, 515 (1911). “A dispute is capable of repetition if there

[is] a reasonable expectation that the same complaining party

would be subjected to the same action again; it is likely to

evade review if the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration.”

Unabom Trial v. U.S. Dist. Court, 183 F.3d 949, 950 (9th Cir.

PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2339
1999) (en banc) (alteration, internal quotation marks, and citations omitted). 

All of the litigants in this case are repeat players who have

sought in the past, and will likely seek in the future, to change

water allocations under the Orr Ditch Decree. It is also likely

that, in any future proceedings, the losing party before the

Engineer will seek a stay of his ruling. This conclusion is supported by appellees’ statement in their stay request that the

district court “has on several prior occasions” applied Nev.

Rev. Stat. § 533.450 to similar motions for stays of rulings by

the State Engineer. 

[2] By its nature, a stay is temporary. As is apparent from

this case — in which this court expedited the appeal — the

Nevada district court will frequently rule on the merits of an

appeal from a State Engineer’s ruling before this court has an

opportunity to consider the district court’s prior stay order. As

a result, we find that the “capable of repetition yet evading

review” exception to the mootness doctrine allows us to consider the merits of this appeal.

B. Appealability of the District Court’s Order

[3] The Irrigation District and the City of Fallon next assert

that the district court’s stay order is not an appealable order.

Because the stay order was the functional equivalent of a preliminary injunction, we reject this argument. The order

restrained the State Engineer from issuing the permits he had

authorized in his December 2002 ruling. Regardless of how

a district court chooses to title an order, this court has jurisdiction to decide an appeal under 28 U.S.C. § 1292(a)(1) if the

“substantial effect” of the appealed order is that of an injunction. Tagupa v. East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th

Cir. 1981) (“In determining the appealability of an interlocutory order under 28 U.S.C. § 1292(a)(1), we look to its substantial effect rather than its terminology.”) (internal quotation

2340 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
marks and citations omitted). Jurisdiction is therefore proper

over this appeal. 

C. Applicability of Nevada Law

Finally, we consider the central issue: whether the district

court properly applied Nev. Rev. Stat. § 533.450(5) rather

than Rule 65 in deciding whether to grant appellees’ stay

motion. 

[4] We have consistently applied state law to applications

to change the use of water rights under the Orr Ditch Decree.

United States v. Orr Water Ditch Co., 914 F.2d 1302, 1307

(9th Cir. 1990). In doing so, we have been guided by the policies underlying the 1902 Reclamation Act, which the

Supreme Court has construed to require that “state water law

. . . control in the appropriation and later distribution of the

water.” United States v. Alpine Land & Reservoir Co., 878

F.2d 1217, 1223 (9th Cir. 1989) (quoting California v. United

States, 438 U.S. 645, 664 (1978)). In addition, we have found

that the provision of the Orr Ditch Decree mandating that

changes to water use be made “in the manner provided by

law” requires us to apply “[n]ot only state water law substance . . . but procedure as well.” United States v. Orr Water

Ditch Co., 914 F.2d 1302, 1307 (9th Cir. 1990). 

[5] Based on this understanding of the Orr Ditch Decree,

we have previously held that other Nevada procedures for

adjudicating water disputes, including two subsections of the

same statute to which Nev. Rev. Stat. § 533.450(5) belongs,

apply to Orr Ditch proceedings. We have followed the appeal

procedures established by Nev. Rev. Stat. § 533.450(1),

which require that an appeal of a State Engineer’s decision be

initiated in the court that entered the decree. United States v.

Alpine Land & Reservoir Co., 174 F.3d 1007, 1011 (9th Cir.

1999) (noting that “we have interpreted Nevada law, which

provides for jurisdiction of appeals from decisions of the State

Engineer ‘in the court that entered the decree,’ as providing

PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2341
for federal court review under the Orr Ditch Decree”). We

have also applied Nev. Rev. Stat. § 533.450(9), which provides that the state engineer’s decisions “shall be prima facie

correct, and the burden of proof shall be upon the party

attacking the same.” See United States v. Alpine Land & Reservoir Co., 341 F.3d 1172, 1180 (9th Cir. 2003). 

[6] We do not believe that the Orr Ditch Decree provides

a basis for treating Nev. Rev. Stat. § 533.450(5) differently

from these other procedural provisions. Like the other subsections of Nev. Rev. Stat. § 533.450 that we have applied to federal proceedings, the stay procedure provided by Nev. Rev.

Stat. § 533.450(5) is part of a unified scheme to adjudicate

water issues in a fair and orderly way. It has no application

outside of water law cases. Absent a procedure such as Nev.

Rev. Stat. § 533.450(5), it would frequently be impossible to

remedy an error by the State Engineer because, by the time

the appeal was decided, the water at issue would already have

been used. We are mindful that Nev. Rev. Stat. § 533.450(5),

like the other provisions of the Nevada water code, is

designed to address such practical realities. See Application of

Filippini, 202 P.2d 535, 540 (1949) (finding it “settled in

[Nevada] that the water law and all proceedings thereunder

are special in character, and the provisions of such law not

only lay down the method of procedure but strictly limit[ ] it

to that provided”). 

[7] We find no conflict between Nev. Rev. Stat.

§ 533.450(5) and the Federal Rules of Civil Procedure. The

federal Rules “govern the procedure in the United States district courts in all suits of a civil nature.” Fed. R. Civ. P. 1.

Thus, “[w]hen a situation is covered by one of the Federal

Rules, . . . the [district court must] apply the Federal Rule, and

can refuse to do so only if . . . the Rule in question transgresses [ ] the terms of the [Rules] Enabling Act [or the Constitution].” Hanna v. Plumer, 380 U.S. 460, 471 (1965). In

this case, however, the specific question of stays of the State

Engineer’s rulings is not “covered by one of the Federal

2342 PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY
Rules.” Rather, it is covered by Nev. Rev. Stat. § 533.450(5),

an inseparable part of Nevada water law, which is made applicable to the rights at issue here by the express terms of the

decree that established those rights. 

Were we being asked to apply a generally applicable rule

of Nevada civil procedure — such as Nev. Rev. Stat.

§ 33.010, which provides for preliminary injunctions in civil

proceedings in state court — our analysis would be considerably different. Nev. Rev. Stat. § 533.450(5), however, is not a

part of the Nevada Rules of Civil Procedure. Rather, it applies

only in the narrow context of an appeal from the State Engineer’s decision. It is part of the Nevada water code, which the

Orr Ditch Decree and our case law direct us to apply in its

entirety to proceedings under the Decree. 

[8] We hold that the district court was required to apply

Nev. Rev. Stat. § 533.450(5) in order to resolve this case, as

the Orr Ditch Decree mandates, in the “manner provided by

law.” We therefore conclude that the district court was correct

to grant the appellees’ stay motion upon the posting of a sufficient bond. 

AFFIRMED 

PYRAMID LAKE PAIUTE TRIBE v. CHURCHILL COUNTY 2343