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United States v. Orr Water Ditch Co.

ELR Citation: 31 ELR 20791
Nos. 99-16812, -16817, 256 F.3d 935/(9th Cir., 07/05/2001)

The court reverses and remands a district court decision that a town had neither forfeited nor abandoned water rights to 280 acre-feet of water from a federal water reclamation project on a Nevada lake. After acquiring surrounding water rights that had been historically used for irrigation, the town sought to change the manner and place of use for the water rights in order to meet its growing water needs. The federal government and a Native American tribe whose lands surrounded the lake opposed the change and argued that the water rights at issue had been forfeited or abandoned. The state engineer ruled that the rights had not been forfeited or abandoned. The engineer determined that the water rights had not been forfeited under state law despite five years of non-use because they fell within the exception for water rights that vested or for which appropriations were initiated before the state law took effect in 1913. The engineer assigned the day the U.S. Congress initiated the project in 1902 as a vesting date for all of the water rights from the reclamation project. The district court affirmed the engineer's decision.

The court first holds, however, that in order for a given water right to receive the protection of the exception, the water right must have vested, or an individual landowner must have initiated appropriations of that right, before 1913. In practice, this means that an individual must have contracted with the federal government prior to 1913 for the delivery of reclamation project water. The court next holds, therefore, that a parcel-by-parcel determination of the initiation date of the water rights at issue must be conducted on remand. Likewise, on remand the district court must determine on a parcel-by-parcel basis if the prolonged non-use of water and permanent improvements on the land covered by the water rights indicate the abandonment of those rights.

Counsel for Plaintiff
Katherine J. Barton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Michael J. Van Zandt
McQuaid, Metzler, Bedford & Van Zandt
221 Main St., San Francisco CA 94105
(415) 905-0200

Fletcher, J. Before Schroeder, J., with Noonan, J., dissenting.