IN EQUITY C-125-B: UNITED STATES OF AMERICA V. WALKER RIVER IRRIGATION

• Court: District Court, D. Nevada
• Decided: September 21, 2021
• Docket: 3:73-cv-00127
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 UNITED STATES OF AMERICA, et al., Case No. 3:73-cv-00127-MMD-WGC

7 Plaintiffs, ORDER v. 8 WALKER RIVER IRRIGATION 9 DISTRICT, et al.,

10 Defendants.

11 12 I. SUMMARY 13 This is an approximately 100-year-old case regarding apportionment of the water 14 of the Walker River, which begins in the high eastern Sierra Nevada mountains of 15 California, and ends in Walker Lake in Northern Nevada. See U.S. v. Walker River 16 Irrigation Dist., 890 F.3d 1161, 1165-69 (9th Cir. 2018) (“Walker IV”) (reciting the history 17 of this case); see also Google Maps, Walker River, 18 https://goo.gl/maps/jJsuqbBJB7KbrBaW8 (last visited Sept. 20, 2021) (showing the river). 19 Before the Court is Plaintiffs the United States of America (“United States”) and the Walker 20 River Paiute Tribe (“Tribe”)’s motion for summary judgment on four affirmative defenses 21 asserted in response to Plaintiffs’ counterclaims, which essentially seek to reopen a 1936 22 decree governing water rights in the Walker River to secure increased water rights for the 23 Tribe.1 (ECF No. 2638 (“Motion”).) Because the Court finds Plaintiffs are entitled to 24 25

26 1Principal Defendants filed a consolidated response (ECF No. 2649), and Plaintiffs filed a reply (ECF No. 2659). Principal Defendants are “the Walker River Irrigation District, 27 Desert Pearl Farms, LLC, Peri Family Ranch, LLC, Peri & Peri, LLC, and Frade Ranches, Inc., Lyon County and Centennial Livestock, the Nevada Department of Wildlife, the 28 Schroeder Group, and Mono County.” (ECF No. 2649 at 16 n.1.) The Court will refer to them collectively as “Defendants” in this order. 2 explained infra—the Court will grant the Motion.2 3 II. RELEVANT BACKGROUND 4 The Court again incorporates by reference the factual and procedural background 5 of this long-running case provided in Walker IV. See 890 F.3d at 1165-69. Briefly, the 6 parties’ rights to use water from the Walker River are governed by a decree entered in 7 1936, as modified following a Ninth Circuit Court of Appeals remand (the “1936 Decree”). 8 See id. at 1162, 1166-67. The dispute currently before the Court involves claims filed by 9 the United States as counterclaims in the 1990s to effectively reopen the 1936 Decree to 10 secure additional water rights for the Tribe. See id. at 1167-68. Defendants have filed 11 answers to those counterclaims, in which they assert certain affirmative defenses. (ECF 12 No. 2659 at 5 (proffering ECF No. 2523 as a representative answer containing affirmative 13 defenses common to most answers filed in this case).) Plaintiffs’ Motion seeks summary 14 judgment on Defendants’ Third, Seventh, Twelfth, and Fourteenth Affirmative Defenses. 15 (ECF No. 2638 at 49.) Slightly over a year ago, on the United States’ motion, the Court 16 granted judgment on the pleadings to Plaintiffs on five other asserted affirmative defenses. 17 (ECF No. 2626.) In that order, the Court declined to rule on certain affirmative defenses 18 raised by Defendants, but not in the United States’ motion. (Id. at 10.) Plaintiffs 19 characterize their Motion as primarily seeking summary judgment on the affirmative 20 defenses the Court declined to rule on last year. (ECF No. 2659 at 6.) 21 /// 22 /// 23 /// 24 25 26 2Defendants requested oral argument on this Motion, and Plaintiffs opposed. (ECF 27 Nos. 2660, 2661, 2662.) The Court declines to hold oral argument on the Motion because it finds it unnecessary. See LR 78-1 (“All motions may be considered and decided with or 28 without a hearing. . . Parties must not file separate motions requesting a hearing.”). 2 Winters3 rights on behalf of the Tribe in its counterclaims. (ECF No. 2626 at 6.) Winters 3 rights are “federal reserved water rights” that apply to Indian reservations, based on the 4 implication that the federal government “reserves appurtenant water then unappropriated 5 to the extent needed to accomplish the purpose of the reservation” when the government 6 creates an Indian reservation. Agua Caliente Band of Cahuilla Indians v. Coachella Valley 7 Water Dist., 849 F.3d 1262, 1268 (9th Cir. 2017) (“Agua Caliente”) (citations omitted). As 8 Plaintiffs characterize their counterclaims in their Motion, they seek: “(1) a storage water 9 right associated with Weber Reservoir; (2) a groundwater right associated with lands 10 added to the Reservation by executive and congressional action in 1918, 1928, 1936, and 11 1972; and (3) a groundwater right underlying all lands within the exterior boundaries of the 12 Reservation, some of which have been held in trust by the United States for the Tribe 13 since 1859.” (ECF No. 2638 at 7.) Plaintiffs proffered an illustrative map with their Motion 14 showing the lands added to the Walker River Reservation to which Defendants did not 15 object. (ECF No. 2638-3.) The Court includes a copy of the map here for reference. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 27

28 3Winters v. United States, 207 U.S. 564 (1908). 1 2 oR | |] [eT a] STEERER Hae 3 n|2t e] *| eae Pilea» Pe Lel= [ots] [98/2 Es PSHE 4 Persie [= [lle [= [= lm □□□ Te ne erat fete tate ela Res fe a ae pelea lef fl rel 6 [elo fo [fof els [a | [a ae Allotments and Tribal Reserves (TR) 1-5 ri | «ele [ela os (acl [reel ol Pal ae as Fe rae] 7 ||| | Sees tele telat ae reserves were appraved by Secretarial Order, August 13, 1906 The i uh w]e) wl al Ty 7] fas | ww | y, Gomes wine | LT eebe 1 nioge le e |" ee 8 Secretarial Order August 13, 1906 Ft ee | =| | Billet tel | 2 | zm | = | a es Le f= to | (= > [= [= [| > | Beenie pete [l= [= fof [=] eee ve geen = T= = [= ef] 10 HH | 29E| | «| w]e = SH 2 [=|= (St! eM Re eee =| (ns Sr Spee Sut 2 □□□ [of] 12 Ba aed ese nomen a ete □□□ Bye rele fw fe lone papel bcos mek ol Goce ekg my SR /ptceere Paeneet Tame fer Ween Lamy ana omer □□ Sisssssue’ Sa en ee ee 44 D, Scena Sources: BIA, BLM PLSS CadNSDI, ESRI, USGS N Figure 8 16 16 17 || (/d. at 2.) 18 The parties provided statements of fact in their briefing on the Motion supported by 19 || various exhibits. (ECF No. 2638 at 25-26, 2638-2,4 2649 at 17-50.) The Court incorporates 20 || by reference both parties’ statements of fact for context but does not fully adopt either 21 || side’s recitation of the facts. 22 The following facts—the only material facts for resolving the Motion—are 23 || undisputed unless otherwise noted. The initial complaint in the proceedings culminating 24 || with the 1936 Decree only discussed surface water and explained that the purpose of that 25 || litigation was to prevent upstream water users from diverting water from the Walker River 26 || before it reached the Walker River Reservation—the river was running dry before it hit the 27 28 ‘Plaintiffs provided their statement of undisputed material facts as a separate document.

2 adjudication of groundwater rights, or a storage water right regarding water in a reservoir. 3 (See id.) This understanding persisted through the initial litigation. For example, when a 4 potential reservoir came up during cross examination in the initial litigation before the 5 special master, the government objected to the relevance of those questions and the 6 special master tentatively agreed that the reservoir was immaterial to the issues in the 7 case. (ECF No. 2652-8 at 7-9.) The Court’s initial decision confirmed as much, noting that 8 a report prepared by the Department of the Interior recommended the creation of a 9 reservoir, and opining that the United States should build one, but simultaneously 10 indicating that reservoir was outside the scope of the initial phase of this case. See United 11 States v. Walker River Irr. Dist., 11 F. Supp. 158, 165-66 (D. Nev. 1935) (“Walker I”), 12 decree rev’d, 104 F.2d 334 (9th Cir. 1939). In addition, after the initial litigation concluded, 13 the parties appeared to retain the same view—that the litigation had not addressed the 14 question of water storage in Webber Reservoir. (ECF No. 2638-18 at 4-5.) This history is 15 important to the Court’s discussion infra of the parties’ arguments regarding the Third 16 Affirmative Defense. 17 III. LEGAL STANDARD 18 “The purpose of summary judgment is to avoid unnecessary trials when there is no 19 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 20 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate when 21 the pleadings, the discovery and disclosure materials on file, and any affidavits “show 22 there is no genuine issue as to any material fact and that the movant is entitled to judgment 23 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 24 “genuine” if there is a sufficient evidentiary basis on which a reasonable factfinder could 25 find for the nonmoving party and a dispute is “material” if it could affect the outcome of the 26 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 27 (1986). Where reasonable minds could differ on the material facts at issue, however, 28 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 2 resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 3 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 4 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and 5 draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement 6 Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation omitted). 7 The moving party bears the burden of showing that there are no genuine issues of 8 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 9 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 10 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 11 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 12 but must produce specific evidence, through affidavits or admissible discovery material, to 13 show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 14 1991), and “must do more than simply show that there is some metaphysical doubt as to 15 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 16 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 17 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]” 18 Anderson, 477 U.S. at 252. 19 IV. DISCUSSION 20 The Court first addresses the threshold issues of Defendants’ concessions in 21 response to the Motion, followed by the parties’ arguments on the Third Affirmative 22 Defense, and then addresses the Seventh and Twelfth Affirmative Defenses together. 23 A. Threshold Issues 24 Defendants conceded the applicability of the Fourteenth Affirmative Defense, and 25 noted they are not asserting the Third Affirmative Defense, finality and repose, as it 26 “applies to the claims for the 1936 and 1972 lands.” (ECF No. 2649 at 89.) There is 27 accordingly no dispute as to these issues, and the Court will grant Plaintiffs summary 28 2 Defense as to the 1936 and 1972 lands. 3 B. Third Affirmative Defense 4 Defendants’ Third Affirmative Defense is that the principles of finality and repose 5 articulated in Arizona v. California, 460 U.S. 605, 619 (1983) (“Arizona II”) prelude the 6 Court from reopening the 1936 Decree to recognize the water rights Plaintiffs seek in their 7 counterclaims.5 (ECF No. 2649 at 20.) Plaintiffs argue they are entitled to summary 8 judgment on this affirmative defense because Arizona II’s principles of finality and repose 9 only preclude claims that were actually litigated—and their counterclaims were not actually 10 litigated in the initial phase of this case litigated in the 1920s and 30s. (ECF No. 2638 at 11 26-39.) Plaintiffs further argue that finality and repose can be overridden by changed, 12 unexpected circumstances. (Id. at 26.) Defendants counter that Arizona II’s principles of 13 finality and repose bar not only claims that were actually litigated, but those that could 14 have been litigated. (ECF No. 2649 at 50-53; see also id. at 54-72.) Defendants 15 alternatively argue that the water rights claims Plaintiffs seek in their counterclaims were 16 actually litigated. (ECF No. 2649 at 52, 72-76.) The Court agrees with Plaintiffs. 17 To start, the Court finds that the best reading of Arizona II is that the principles of 18 finality and repose described therein only bar claims that were actually litigated. And as 19 explained further below, Plaintiffs’ counterclaims were not actually litigated in the first 20 phase of this case. 21 Arizona II is the second in a trilogy of cases adjudicating water rights to the 22 Colorado River under the Supreme Court’s original jurisdiction. See Arizona v. California, 23 530 U.S. 392, 397-401, supplemented, 531 U.S. 1 (2000) (“Arizona III”). Arizona II 24 specifically focused on the claims of Native American tribes with reservation lands along 25 the Colorado River that they were entitled to water rights for certain lands omitted from the 26 initial adjudication of rights in State of Ariz. v. State of Cal., 373 U.S. 546 (1963) (“Arizona 27 28 5Though as noted supra, with the exception of the 1936 and 1972 lands. 2 relevant tribes’ water rights would be measured by ‘practicably irrigable acreage,’ instead 3 of some other measure such as the tribes’ population or their ‘reasonably foreseeable 4 needs,’ and determined how much water each tribe was entitled to based on the 5 determination of their reservations’ ‘practicably irrigable acreage.’ See Arizona II, 460 U.S. 6 at 617. In Arizona II, the tribes sought additional water rights based on additional 7 practicably irrigable acreage that was purportedly inadvertently omitted from Arizona I. 8 See id. The Supreme Court held that general principles of finality and repose prevented it 9 from reopening the existing decree resulting from Arizona I such that it could not 10 recalculate the practicably irrigable acreage it calculated for each tribe’s reservation in 11 Arizona I. See id. at 615-628. 12 But contrary to Defendants’ argument—which takes a single instance of the phrase 13 ‘could have’ out of context—the Supreme Court’s holding in Arizona II is that principles of 14 finality and repose preclude relitigating issues that were actually litigated, not those that 15 could have been. This is primarily because the tribes who intervened in Arizona II were 16 seeking recalculation of fixed amounts that had already been determined in Arizona I. See 17 id. at 626. So, while the lands at issue were characterized as ‘omitted lands,’ that was 18 because they had previously been deemed not practicably irrigable, not because they 19 were added to reservations or otherwise not at issue in Arizona I. See id. at 617. Therefore, 20 Arizona II focused on an attempt to relitigate an issue that was actually litigated—the 21 amount of practicably irrigable acreage in each applicable reservation. See id. at 615-628. 22 The language the Supreme Court used in the finality and repose section of Arizona 23 II supports this conclusion. For example, the Supreme Court discussed relitigation, not 24 issues that could have been litigated. See id. at 625-27 (discussing relitigation and 25 reopening). The Supreme Court also described as a fundamental precept of common law 26 adjudication the principle that, “an issue once determined by a competent court is 27 conclusive[.]” Id. at 619. The Supreme Court further described what the tribes were asking 28 it to do as “recalculating,” and noted that the paragraph of the applicable decree giving the 2 fundamental principles so as to permit retrial of factual or legal issues that were fully and 3 fairly litigated 20 years ago.” Id. at 620-21. And the Supreme Court concluded by stating 4 its belief that “the issue of practicably irrigable acreage was fully and fairly litigated in 5 1963.” Id. at 628. In sum, “the general principles of finality and repose” preclude only 6 issues that were actually litigated, not those that could have been—and are subject to the 7 additional caveat for changed circumstances or unforeseen issues not previously litigated 8 not directly at issue as to the Motion. Id. at 619. 9 The Court also agrees with Plaintiffs that dicta in Arizona III further supports the 10 view that Arizona II’s general principles of finality and repose only preclude issues that 11 were actually litigated. (ECF No. 2638 at 36-39.) The pertinent discussion in Arizona III is 12 dicta because it was unnecessary to the Supreme Court’s decision; the Supreme Court 13 rejected the state parties’ preclusion arguments because they raised them too late. See 14 530 U.S. at 408-09. However, the Supreme Court declined the state parties’ invitation to 15 raise the preclusion issue sua sponte, explaining that it plainly had not previously decided 16 the issue, stated that it did “not face the prospect of redoing a matter once decided[,]” and 17 stated that no judicial resources had previously been expended on the question. See id. 18 at 412-13. In other words, the Supreme Court stated that only an issue that had been 19 previously, actually litigated, would be precluded. See id. 20 Walker IV also supports this view. There, the Ninth Circuit wrote: 21 The better reading of Paragraphs XI and XII is that, together, they reiterate standard preclusion principles, i.e., that no party may relitigate a claim to 22 water rights in the Walker River Basin, in the Nevada District Court or any other court, that was litigated in the original case as of April 14, 1936. 23 24 890 F.3d at 1171-72. The Ninth Circuit refers to relitigation, and a claim that was litigated 25 in the original case—not a claim that could have been litigated. Overall, the Court finds 26 that Plaintiffs have the correct view of the principles of finality and repose described in 27 Arizona II—they preclude only issues actually litigated. 28 /// 2 instance of “could have” in Arizona II, Defendants also focus on the “full and fair 3 opportunity to litigate” language. (ECF No. 2649 at 54-58.) However, this argument ignores 4 that the Supreme Court was discussing an issue that was actually litigated in Arizona I— 5 the amount of practicably irrigable acreage in the respective reservations. See Arizona II, 6 460 U.S. at 615-628. Thus, this language tends to support Plaintiffs’ argument more than 7 Defendants. Moreover, Defendants’ suggestion that Plaintiffs had a full and fair 8 opportunity to litigate the water rights claims they now bring as counterclaims is 9 unpersuasive because Defendants concede this affirmative defense does not apply to 10 lands added to the Walker River Reservation later on. (ECF No. 2649 at 89.) Thus, even 11 Defendants concede that Plaintiffs did not have a full and fair opportunity to litigate at least 12 some of the water rights claims they are now attempting to assert. In addition, while 13 Defendants extensively rely on Nevada v. United States, 463 U.S. 110, 129-130 (1983) 14 (ECF No. 2649 at 58-61), the Ninth Circuit specifically distinguished Nevada from this case 15 in Walker IV. See 890 F.3d at 1172 n.13. Thus, Defendants’ reliance on Nevada is 16 unpersuasive. 17 So too is Defendants’ argument that adopting their view—principles of finality and 18 repose under Arizona II bar litigation of issues that could have been litigated—is sound 19 public policy. (ECF No. 2649 at 60-62.) Finality and repose as described in Arizona II 20 already accounts for the public policy concerns Defendants raised, but that does not mean 21 they apply to claims that could have been litigated. Indeed, the Supreme Court noted in 22 Arizona II that “[c]ertainty of rights is particularly important with respect to water rights in 23 the Western United States.” 460 U.S. at 620. And that policy concern may well have 24 motivated the Supreme Court to hold that principles of finality and repose precluded the 25 tribes involved in that litigation from relitigating an issue the United States had already 26 litigated on their behalf. See id. at 620-636. However, as described above, the Court is 27 unpersuaded that the Supreme Court sought to preclude all water rights claims that could 28 have been litigated in the pertinent portion of Arizona II. 2 asserted in Plaintiffs’ counterclaims were not litigated during the original phase of this 3 case. Thus, principles of finality and repose do not preclude Plaintiffs from pursuing them 4 here.7 5 To start, Defendants arguably concede their argument that the types of water rights 6 asserted in Plaintiffs’ counterclaims were actually litigated. Defendants themselves stated 7 that the United States did not pursue a storage right in the Webber Reservoir during the 8 original litigation, albeit characterizing that decision as a strategic one on the United 9 States’ part. (ECF No. 2649 at 51-52.) And this concession fits with a broader 10 characterization of Defendants’ argument in their response—Defendants’ argument that 11 Plaintiffs’ counterclaims were actually litigated is really an argument that they could have 12 been litigated. For example, consider this argument: 13 [T]he “claim” that was actually litigated from 1924 through 1939 was the United States’ entire water right under the implied reservation of water 14 doctrine for the Walker River Indian Reservation to meet the then and future needs of the Tribe quantified by 10,000 acres of irrigable land and with an 15 1859 priority date. For practical reasons, the United States sought to satisfy that right from the surface water of the Walker River, which was its choice. 16 However, having made that choice, it is not entitled, decades later, to enlarge its right by asserting the same claim against a groundwater source. 17 18 (Id. at 52.) Though Defendants characterize their contention as arguing that the United 19 States litigated a claim for their entire water right implied by the Walker River Reservation, 20 Defendants emphasize that the United States chose to pursue only a surface water right, 21 and then argue Plaintiffs should be held to that choice instead of being able to ‘enlarge’ 22 their rights. (Id.) Defendants are accordingly dressing their ‘could have been’ litigated 23 argument up as a ‘was actually litigated’ argument. And this example is consistent with 24 25

26 6Depending on whether the Court uses the three-part characterization that Plaintiffs offer of their counterclaims, or views Plaintiffs as seeking groundwater and a storage water 27 right.

28 7The Court agrees with Defendants both that the Ninth Circuit left this issue for this Court to decide and that the Court has not previously decided it. (ECF No. 2649 at 53-54.) 2 Court that Defendants have conceded their ‘was actually litigated’ argument. 3 However, to the extent Defendants have not conceded this issue, the Court agrees 4 with Plaintiffs that the record supports their view that the water rights Plaintiffs seek in their 5 counterclaims were not actually litigated in the original proceedings leading to the 1936 6 Decree. The initial complaint in those proceedings only discussed surface water and 7 explained that the purpose of that litigation was to prevent upstream water users from 8 diverting water from the Walker River before it reached the Walker River Reservation. 9 (ECF No. 2638-5 at 30-33, 36-37.) The United States did not seek any adjudication of 10 groundwater or a storage right regarding water in a reservoir. (See id.) This understanding 11 persisted through the initial litigation. For example, when the reservoir came up during 12 cross examination in the initial litigation before the special master, the government 13 objected to the relevance of those questions and the special master tentatively agreed 14 that the reservoir was immaterial to the issues in the case. (ECF No. 2652-8 at 7-9.) The 15 Court’s initial decision confirmed as much, noting that a report prepared by the Department 16 of the Interior recommended the creation of a reservoir, and opining that the United States 17 should build one, but simultaneously indicating that reservoir was outside the scope of the 18 initial phase of this case. See Walker I, 11 F. Supp. at 165-66. In addition, after the initial 19 litigation concluded, the parties appeared to retain the same view—that the litigation had 20 not addressed the question of water storage in Webber Reservoir. (ECF No. 2638-18 at 21 4-5.)8 22 The record accordingly supports Plaintiffs’ view that the only water right actually 23 litigated in the litigation culminating in the 1936 Decree was a right to 10,000 cubic feet of 24 water per second of surface water from the Walker River and its tributaries (ECF No. 2638- 25 26 8The Court agrees with Plaintiffs that this is an admissible ancient document. (ECF 27 No. 2659 at 24 n.19.) See also Chemehuevi Indian Tribe v. McMahon, 934 F.3d 1076, 1081 (9th Cir. 2019), cert. denied, 140 S. Ct. 1295, 206 L. Ed. 2d 375 (2020) (finding that 28 a report prepared in 1907 was “plainly admissible as an ancient document, Fed. R. Evid. 803(16), which may contain multiple levels of hearsay.”) (additional citation omitted). 2 less, a: 3 continuous flow of [only] 26.25 cubic feet of water per second, to be diverted from Walker River upon or above Walker River Indian Reservation during 4 the irrigation season of one hundred and eighty days for the irrigation of two thousand one hundred acres of land on the reservation, and the flow of water 5 reasonably necessary for domestic and stock watering purposes and for power purposes to the extent now used by the Government, during the non- 6 irrigating season, with a priority of November 29, 1859, and enjoin[ed] the defendants from preventing or interfering with the natural flow of the 7 described quantities of water in the channels of the stream and its tributaries to and upon the reservation. 8 9 United States v. Walker River Irr. Dist., 104 F.2d 334, 340 (9th Cir. 1939) (“Walker II”). 10 In sum, the parties have not actually litigated the water rights claims Plaintiffs now 11 seek in their counterclaims and Plaintiffs are not precluded from doing so under Arizona 12 II’s principles of finality and repose. Plaintiffs are accordingly entitled to summary judgment 13 on Defendants’ Third Affirmative Defense. 14 C. The Seventh and Twelfth Affirmative Defenses 15 In Defendants’ Seventh Affirmative Defense, they argue that the Tribe does not 16 have a federal reserved water right for lands added to the Walker River Reservation after 17 1924 if the purpose of those lands can be satisfied by the Tribe’s surface water right 18 awarded to them under the 1936 Decree. (ECF No. 2649 at 86-88.) In their Twelfth 19 Affirmative Defense, Defendants argue that the Tribe cannot have a groundwater right that 20 enlarges a surface water right already awarded to it. (ECF No. 2649 at 80-86.) As further 21 discussed below, the Court agrees with Plaintiffs that they are entitled to summary 22 judgment on both of these affirmative defenses. The Court addresses these affirmative 23 defenses together because they are effectively very similar, and the Court finds that Agua 24 Caliente largely forecloses Defendants’ arguments on both of them. 25 Contrary to Defendants’ arguments supporting their assertion of these two 26 affirmative defenses, “the question is not whether water stemming from a federal right is 27 necessary at some selected point in time to maintain the reservation; the question is 28 whether the purpose underlying the reservation envisions water use.” Agua Caliente, 849 2 either. For example, after determining that the purpose of the reservation at issue in Agua 3 Caliente envisioned water use, the Agua Caliente court went on to explicitly hold that the 4 Winters doctrine applies to groundwater for the first time. See id. at 1270-71. In so doing, 5 the Agua Caliente court noted that the other main limitation of the Winters doctrine is that 6 it only applies to unappropriated water that is “‘appurtenant’ to the reservation.” Id. at 1271 7 (citation omitted). And the Agua Caliente court went on to hold that that tribe’s Winters 8 right to groundwater was not defeated because the tribe had correlative rights to 9 groundwater under state law, it had not previously drilled for groundwater, and the tribe 10 already had rights to surface water under a state law decree. See id. at 1272. The “fact 11 that the Tribe did not historically access groundwater does not destroy its right to 12 groundwater now.” Id. 13 These elements of Agua Caliente effectively foreclose Defendants’ arguments 14 underlying the Seventh and Twelfth Affirmative Defenses. First, the Tribe’s Winters right 15 is not determined by how much water it needs at a particular point in time; it depends on 16 whether the purpose underlying the reservation envisioned water use. See Agua Caliente 17 849 F.3d at 1269; see also Arizona II, 460 U.S. at 617 (rejecting “Arizona’s proposal that 18 the quantity of water reserved should be measured by the Indian’s ‘reasonably 19 foreseeable needs[.]”’). And here, Defendants do not appear to seriously dispute that the 20 United States envisioned the Tribe would need water when it created and subsequently 21 expanded the Walker River Reservation—indeed, the purpose was to create a homeland 22 for the Tribe where they could farm and graze livestock. See Walker II, 104 F.2d at 338- 23 40; see also id. at 339 (“It would be irrational to assume that the intent was merely to set 24 aside the arid soil without reserving the means of rendering it productive.”).9 25 26 9While it significantly predates Agua Caliente, the Ninth Circuit in this very case 27 engaged in the purpose inquiry the Agua Caliente court also undertook in determining that the Tribe had Winters rights, reversing the Walker I court’s holding that they did not 28 because the Walker River Reservation was created by statute, not treaty. Compare Walker II, 104 F.2d at 337-40 with Agua Caliente, 849 F.3d at 1268-70. 2 surface water and groundwater was expressly rejected in Agua Caliente, where, like here, 3 the tribe already had an entitlement to some surface water. See Agua Caliente 849 F.3d 4 at 1270-72. 5 Third, Defendants’ suggestion that land later added to the Walker River 6 Reservation did not come with any additional reserved groundwater is both illogical and 7 foreclosed by Agua Caliente. As the Agua Caliente court explained, the Winters doctrine 8 applies to appurtenant water sources. See id. at 1271. Appurtenant means “[a]nnexed to 9 a more important thing[,]” APPURTENANT, Black’s Law Dictionary (11th ed. 2019), in this 10 context, land. It is accordingly illogical to suggest—as Defendants do—that more land 11 should not come with more groundwater. Moreover, and as noted above, the Agua 12 Caliente court did not find that existing rights to surface water meant the applicable tribe 13 did not have Winters rights to groundwater. See 849 F.3d at 1270-72. Further, it has also 14 long been inaccurate under the governing law to suggest that the Tribe’s Winters right to 15 groundwater should be limited to the amount the Tribe was actually using at a particular 16 point in time, rendering Defendants’ argument focused on the amount of water the Tribe 17 needs even more unpersuasive. See United States v. Ahtanum Irr. Dist., 236 F.2d 321, 18 328 (9th Cir. 1956). Thus, Defendants’ arguments reflected in the Seventh and Twelfth 19 Affirmative Defenses that the Tribe’s Winters rights are limited by actual need or fixed in 20 time fail as a matter of law. 21 In addition, the Court agrees with Plaintiffs (ECF No. 2659 at 8) that Defendants’ 22 rhetorical strategy of defending their inclusion of the Twelfth Affirmative Defense by 23 reiterating their ‘could have been litigated’ argument the Court also rejected supra is 24 effectively a concession that the Twelfth Affirmative Defense fails as a matter of law (ECF 25 No. 2649 at 80-86). 26 Finally, the Court notes that much of Defendants’ argument on these two affirmative 27 defenses goes to the ultimate amount of water that the Tribe should be awarded on 28 Plaintiffs’ counterclaims. But the Court has not yet made that determination—and will not 2 Court expresses no opinion in this order “on how much water falls within the scope of the 3 Tribe’s federal groundwater right[.]” See 849 F.3d at 1273. That is a separate inquiry 4 reserved for another day. 5 V. CONCLUSION 6 The Court notes that the parties made several arguments and cited to several cases 7 not discussed above. The Court has reviewed these arguments and cases and determines 8 that they do not warrant discussion as they do not affect the outcome of the Motion. 9 It is therefore ordered that Plaintiffs’ motion for summary judgment (ECF No. 2638) 10 is granted. 11 It is further ordered that Plaintiffs are entitled to judgment as a matter of law in their 12 favor as to Defendants’ Third, Seventh, Twelfth, and Fourteenth Affirmative Defenses. 13 DATED THIS 21st Day of September 2021.

15 MIRANDA M. DU 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28