9th Circuit OKs plan to restore Walker Lake
May 28, 2018
The 9th Circuit Court of Appeals has reversed a Las Vegas judge and approved a trial program that could pump more water into Walker Lake.
As part of the ruling, the appellate justices also ordered U.S. District Judge Robert Clive Jones in Las Vegas be removed from the case because of his bias against the federal government and its attorneys.
The opinion authored by Judge Jay Bybee overturned Jones who barred the water transfers arranged through the National Fish and Wildlife Foundation saying that would injure existing water rights holders.
The foundation was authorized by the 2009 Walker Basin Restoration Program to lease or purchase water from "willing sellers" and convey the water downstream to Walker Lake.
What they set up is a one-year trial to move the water downstream to the lake to determine its impact while they prepare a permanent agreement with the holders of the water rights to increase the flow to Walker Lake.
The lake, which in prehistoric times covered a large swath of northwest Nevada, has been steadily shrinking since farmers and ranchers arrived in the 1860s and began diverting water from the Walker River.
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The Nevada State Engineer and the California State Water Resources Control Board both approved the changes in where the water would flow after the foundation agreed to limit the amount of water it would take each year to "consumptive flow."
Consumptive flow is the amount of water actually consumed by farmer's crops. That agreement means the "non-consumptive flow" — the water that runs off from farmers' fields — wouldn't be taken since that water returns to the river and can be used by downstream users. In this case, nearly half the water used by the current holders returns to the river in runoff.
Because of that, the Nevada State Engineer ruled the downstream flow those farmers depend on wouldn't be impacted.
The foundation's plan is to add some 25,000 acre feet of water to the lake each year by moving surplus reservoir storage downstream from Topaz and Bridgeport.
The group of downstream farmers sued, arguing their share of water would be reduced. They also argued Walker Lake isn't actually part of the Walker River Basin.
Judge Jones agreed.
But Bybee's opinion rejected the logic in Jones's decision. He agreed with the foundation, Mineral County and other plaintiffs those farmers have New Land Stored Water Rights, not decreed rights under the Walker River Decree approved in 1936. As such, he wrote, those farmers have no legal right to the water and, "a downstream water user who does not have a right to stored water cannot be injured by changes in releases of the stored water."
The opinion says Jones erred by not deferring to state water law and decisions as required since there's no federal water law, that water law is controlled by the states.
The opinion forced the circuit court to actually do the math of converting flow into acre feet of water a year, concluding if the foundation used its maximum for the entire irrigation season, the total use would be the same as current use.
And it reversed Jones's rejection of the Paiute tribe to pursue its claims seeking added water rights for the lake and authorized Mineral County to pursue its claim protecting the lake is a Public Trust issue.
On the subject of Jones, the opinion concurs with federal lawyers Jones must be removed from handling the case because of his conduct.
He first attempted to bar the federal attorneys from participating in the case, relenting only after they went to the 9th Circuit. He also made statements in court about disallowing U.S. attorneys from participating in the case. Jones was previously chastised by the appellate court for similar bias against federal prosecutors in another case.
The decision was hailed by environmental advocates including the Walker Lake Working Group's Glen Bunch who said all who cherish the lake should delebrate the decision.
"We have been fighting for decades to protect and restore Walker Lake — a unique and beautiful environmental, recreational and economic resource for not just the local communities but for the state of Nevada and the entire nation," he said.