United States v. Board of Directors of the Truckee-Carson Irrigation District

723 F.3d 1029, 2013 WL 3829603
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 22, 2013
DocketNos. 12-15474, 12-15476, 12-15594, 12-15595, 12-15599
StatusPublished
Cited by3 cases

This text of 723 F.3d 1029 (United States v. Board of Directors of the Truckee-Carson Irrigation District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Board of Directors of the Truckee-Carson Irrigation District, 723 F.3d 1029, 2013 WL 3829603 (9th Cir. 2013).

Opinion

OPINION

SCHROEDER, Circuit Judge:

We deal in this appeal with what essentially amounts to a footnote to the long-running litigation over how much water from the Truckee and Carson Rivers should be diverted to irrigation and how much should flow into Pyramid Lake for the benefit of the Pyramid Lake Paiute Indian Tribe (“the Tribe”). See Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983); United States v. Bell, 602 F.3d 1074 (9th Cir.2010); Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364 (9th Cir.1989); Truckee-Carson Irrigation Dist. v. Sec’y of Dep’t of Interior, 742 F.2d 527 (9th Cir.1984) (“TCID v. Secretary ”); United States v. Alpine Land & Reservoir Co., 697 F.2d 851 (9th Cir.1983); Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1973) (“Tribe v. Morton”). The federal government and the Tribe now ask us to reconsider one aspect of our most recent opinion. See Bell, 602 F.3d at 1085,1087.

Bell concerned water that the Truckee-Carson Irrigation District (“TCID”) diverted for irrigation between 1973 and 1988 and that the government claimed was in excess of the amount allowed by applicable regulation. We held, among other things, that in calculating the amount of excess diversions, the district court had failed appropriately to account for the margin of error with respect to the gauges that measured the flow of the diversions. Id. at 1085. The district court calculated the amount of water diverted by choosing the low end of this margin of error and thus assigned all uncertainty in the gauge flow calculations in favor of the TCID and against the government and Tribe. Id. We remanded for recalculation because there was no evidentiary basis for that choice. It is this so-called “gauge error” ruling that we now must consider in this appeal from the district court’s judgment on remand.

A brief explanation is in order. Earlier in the Bell opinion, in addressing the primary issues in that appeal, we affirmed the district court’s order of recoupment for excess diversions by the TCID for the years 1974, 1975, 1978, and 1979. Id. The district court had rejected claims of excess diversions in the other years between 1973 and 1988. In our concluding paragraph, we remanded for recalculation of the effect of gauge error in the four specific years in which the district court had found excess diversions. Id. at 1087. On remand, the government asked the court to recalculate gauge error for those and additional years, but the district court limited its recalculation to the four years specified in the conclusion of the Bell opinion.

It now appears that our understanding of the scope of the gauge error claim was mistaken and that the government was claiming the gauge error calculation had affected the flow measurement in other years as well. The government’s contention has been that if the district court had not initially calculated the amounts of water diverted by using the low end of the margin of error, it may have found that there were excess diversions in other [1034]*1034years. The expert whose report the government presented on remand found that if the calculation of flow had been made without regard to the flawed gauge error determination, TCID’s diversions would have exceeded applicable limits not only in 1974, 1975, 1978, and 1979, but also in four additional years — 1973, 1976, 1983, and 1986. We therefore should not have limited recalculation to the four years in which the district court initially found excess diversions. Rather, we should have ordered recalculation of the gauge error’s impact in all the years potentially affected.

Our mistake in not ordering a broader remand is understandable, for the parties made only passing references in the briefs and in oral argument to the larger scope of the gauge error issue, and the government did not move for -rehearing of our prior opinion to correct the mistake. Nevertheless, a mistake there was. Indeed, in the body of our opinion, we suggested that the nature of the gauge error is one that could permeate the analysis for all of the years at issue in the appeal. Id. at 1085. Not limiting our analysis to specific years, we there said that we were remanding “for the district court to recalculate the amount of the diversions based on the government’s published quantities and without regard to the confidence intervals.” Id. We did not purport to limit the recalculation to specific years. Id.

We do not ordinarily disturb a judgment of the court after the mandate has issued. See Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (noting the “profound interests in repose” that attach to the mandate of a court of appeals). The government has candidly acknowledged that it should have moved for reconsideration of our prior opinion, but that it did not recognize the mistake until the matter was before the district court on remand. In light of the larger issues presented in the earlier appeal that focused on the remedy for the four specific years of excess diversions, it was easy enough for us to assume that the gauge error was relevant only to those years as well. Correction of the mandate after it has issued is an extraordinary remedy that is not often utilized. See id. at 549-50, 118 S.Ct. 1489 (holding that while appellate courts have the right to recall their own mandates, that power can only be exercised in “extraordinary circumstances” and is “one of last resort, to be held in reserve against grave, unforeseen contingencies”).

But this is not ordinary litigation. The government throughout several decades has been acting in a fiduciary capacity on behalf of the Tribe, and the government has a fiduciary duty to undertake all reasonable means to assure that the waters that should flow to Pyramid Lake do so pursuant to the controlling operating criteria and procedures (“OCAPs”). See Tribe v. Morton, 354 F.Supp. at 256. The history of those standards have been well documented in prior opinions, and we do not repeat it here. See Bell, 602 F.3d at 1078; Tribe v. Morton, 354 F.Supp. at 256; TCID v. Secretary, 742 F.2d at 529-30. The OCAPs indisputably stated the measure of how much water should have been diverted, and the TCID’s diversions indisputably exceeded these limits. Correcting the gauge error calculation therefore serves to ensure that the Lake receives the water it needs to sustain itself and the endangered species within it. This was the focus and purpose of the limitations on diversions for irrigation since their inception. Tribe v. Morton, 354 F.Supp. at 254-55. If the mistake is not corrected, then the immediate beneficiary will be the TCID, which is at fault for the excess diversions, and the ultimate loser will be the Lake, which the OCAPs are supposed to protect. The equities thus strongly fa[1035]

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Bluebook (online)
723 F.3d 1029, 2013 WL 3829603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-board-of-directors-of-the-truckee-carson-irrigation-ca9-2013.