Appeal from the United States District Court for the District of Nevada. D.C. No. CV-D-184-BRT. Bruce R. Thompson, District Judge, Presiding. Original Opinion Reported at,
Before: J. Clifford Wallace, Chief Judge, Charles Wiggins and Melvin Brunetti, Circuit Judges. Opinion by Judge Brunetti.
AMENDED OPINION AND ORDER
The Pyramid Lake Paiute Tribe of Indians (the "Tribe") protested the application of farmers in the Newlands Federal Reclamation Project (the "Project") to transfer water rights. The Nevada State Engineer (the "Engineer") approved the applications and the district court affirmed. We affirmed in part, reversed in part, and remanded in United States v. Alpine Land & Reservoir Co., 878 F.2d 1217 (9th Cir. 1989).
On remand, the district court again affirmed the Engineer's approval of the application. The Tribe again appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and remand.
In 1980, the District Court of Nevada approved a proposed decree ("Alpine Decree" or "decree") submitted by a Special Master declaring the rights of all interested parties to water from the Carson River and its tributaries. United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877 (D. Nev. 1980), aff'd as modified, 697 F.2d 851 (9th Cir.) (" Alpine I "), cert. denied, 464 U.S. 863 (1983). Once the decree became final, many Project farmers filed applications to transfer water rights appurtenant to other Project land ("transferor properties") to their land ("transferee properties").*fn1 While the transferor properties are not presently using their appurtenant water rights, the transferee properties are lands "lacking water rights but which long have been irrigated with Project water." United States v. Alpine Land & Reservoir Co., 878 F.2d 1217, 1219 (9th Cir. 1989) (" Alpine II ").
The Tribe filed timely protests to the transfer applications in accordance with the provisions of the decree and Nevada statutes.*fn2 The protests were based on several grounds. Relevant to this appeal is the Tribe's claims that twenty-five of the applications involve water rights which were never perfected or were abandoned or forfeited under Nevada law.
The Engineer rejected the Tribe's protests and approved all applications. The Engineer made no specific findings regarding the transferor property water rights. Rather, the Engineer considered the issues of perfection, abandonment, and forfeiture on a Project-wide basis only. "The record of evidence," the Engineer found,
indicates that the water has been used continuously by project farmers. The fact that individual project farmers were not using the water on the exact acreage for which they contracted on an acre-for-acre accounting was addressed and disposed of in Alpine [I].
Engineer's Ruling at 14 (Sept. 30, 1985). The Engineer, relying on Alpine I, thus found the transferor property water rights were valid regardless of the alleged failure to perfect the water rights on the transferor property so long as water was beneficially used, albeit improperly, somewhere on Project land. Based on this Project-wide analysis, the Engineer concluded "there was neither intent to abandon nor intent to forsake the water or the right to use it." Id. at 15. The Engineer also held that the transferor water rights were not subject to Nevada's forfeiture statute because they had vested in the United States upon the creation of the Project in 1902, prior to passage of Nevada's forfeiture statute.
The Tribe, pursuant to the procedures set forth in the decree and approved by us in Alpine I, appealed the Engineer's decision to the district court. The district court did not discuss the merits of the Engineer's ruling on perfection, abandonment, and forfeiture, finding these issues "were improperly raised before the Engineer." The district court reasoned that, under the decree, these claims should have been brought before the Water Master. The Tribe then appealed the district court's decision to this court.
In Alpine II, we found that the Engineer could, under the decree, "consider the Tribe's objection that the applications should be rejected due to alleged forfeiture or abandonment," Alpine II, 878 F.2d at 1225. We found that it was error for the district court to conclude that Nevada law is wholly irrelevant and that it is inappropriate for the Engineer to adjudicate the issues of perfection, forfeiture or abandonment, and we remanded to the district court with instructions to evaluate the Engineer's ruling on the applicability of Nevada's statutory forfeiture provisions and lack of intent to abandon. Id. at 1229.
We also rejected the Engineer's validation of the transferee properties' use of water. The Alpine decree, we stated, did "not determine[ ] whether the particular Project properties involved in this case are entitled to receive Project water." Id. at 1220-21. Alpine I did not, as the Engineer believed, recognize an informal transfer of water rights to the transferee properties or the inapplicability of Nevada's forfeiture statute. Id. at 1228-29. Although we stated in Alpine I that "historically, no distinction was made between landowners with and without limiting contracts," Alpine I, 697 F.2d at 856, our analysis "was premised on the contractual rights of the farmers to receive Project water in some amount, rights [the transferee property landowners] simply do not have." Alpine II, 878 F.2d at 1228.
On remand, the district court, without further briefing, fact finding, or a hearing on the matter, affirmed the Engineer's findings. The court quoted the Engineer's ruling at length, including those aspects of the ruling rejected in Alpine II, and concluded that the Engineer's analysis was "eminently correct." The district court did not address the Tribe's claim that the water rights were not perfected. The Tribe timely filed this appeal.*fn3
The Tribe protested the transfer applications on the ground that the "applications involve the transfer of alleged water rights that were never perfected in accordance with federal and state law." The Tribe argues that the district court, on remand from Alpine II, improperly failed to consider the Engineer's findings regarding this allegation. Appellee TCID argues that the district court had no obligation, under Alpine II, to ...