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Pyramid Lake Paiute Tribe of Indians v. Nevada

ELR Citation: 43 ELR 20172
Nos. 11-16470 et al., (9th Cir., 07/30/2013)

The Ninth Circuit affirmed a lower court decision vacating the Nevada state engineer's approval of the state wildlife agency's application to transfer water rights from agricultural land in the Newlands Reclamation Project to the Carson Lake and Pasture, a wetlands-containing wildlife refuge, in order to sustain habitat. The wildlife agency contended that they only sought to change the water's place of use, but not its manner of use. Because they wanted to use the transferred water to support the growth of plants used by wildlife, they argued that the intended use of water at the refuge constitutes irrigation. The state engineer granted the transfer application, but a lower court properly vacated the approval. Diverting water to wetlands in order to sustain wildlife habitat does not constitute "irrigation" under the federal court decree governing water rights in the Newlands Reclamation Project. Though it does not define "irrigation," the decree expresses a singular concern with the provision of irrigation water for agricultural use, and its references to irrigation uniformly relate to agriculture. Moreover, the state water code speaks of irrigation solely in the context of agriculture and distinguishes such use from the application of water for recreational, aesthetic, and wildlife purposes. The agency's application to transfer water rights therefore seeks a change in the manner of use to a non-irrigation purposes. As such, the state engineer's approval of the application violates the decree.