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Copar Pumice Co. v. Tidwell

ELR Citation: 40 ELR 20127
Nos. No. 07-2211, (10th Cir., 04/19/2010)

The Ninth Circuit affirmed in part and vacated in part a lower court decision related to the United States’ effort to recoup under the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990 (Settlement Act) excess diversions of water that an irrigation district permitted over many years. Specifically, the United States sought to recoup over one million acre-feet of water diverted from 1973 to 1988 in excess of certain operating criteria and procedures (OCAPs). Based on the language, history and purpose of the Settlement Act, the lower court did not err in finding that the Settlement Act unambiguously authorizes the United States to seek recoupment for the district’s past violations of OCAPs through the present action. The court nonetheless remands the case to the lower court to explain the basis in the record for its legal or equitable award of “water interest” – that is, water over the amount wrongfully diverted each year. Because neither case authority nor statutory authority authorizes the lower court’s award of water interest, there appears to be no legal basis for an award. Although the court does not foreclose the possibility of an equitable basis for such an award, water interest is not appropriate unless there is some factual basis for awarding more water than was originally taken so as to provide complete relief. The court therefore vacates the award of post-judgment interest and remands for further consideration by the lower court. As to the challenges to the amount of water ordered recouped, the court affirms all of the calculations except for the calculation of gauge error. The court remands for the lower court to recalculate the amount of the diversions without regard to confidence intervals.