Supporters of Walker Lake traveled to Pasadena, Calif. last week when the Ninth Circuit Court of Appeals met to sort out who governs the waters that flow into the Walker River Basin.
Attorney Don Springmeyer, who represented the National Fish and Wildlife Foundation (NFWF) told the court that the U.S. Board of Water Commissioners wants to unsurp local and federal authority on adjustments to water withdrawal levels already limited in by the Walker River Decree.
He explained the board’s position, “The Walker River Decree should be this little fiefdom of decree law that is untethered to Nevada water law, California water law, much less Ninth Circuit law and U.S. Supreme court law, all of which teach us we should be looking to state water law.”
U.S. District Judge Robert Jones dismissed the lawsuits filed by local units and the Walker River Paiute Tribe, opposing the proposed increases that are favored by the U.S. Board of Water Commissioners and others. Local units and the Tribe appealed.
Some want Judge Jones removed from hearing the matter, if remanded, stating his personal biases are affecting the case.
Attorney Gordon DePaoli, who represented the Walker River Irrigation District, told those in attendance that Judge Jones’s ruling “missed fundamental differences between natural flow water rights, historic water rights and access to stored water.”
He questioned the storing of water in Nevada.
The battle to maintain water into Walker Lake goes back many generations, with the Walker River Decree being signed in 1936. That decree regulates the water use in the Walker River Irrigation District but since the signing of that document, there has been pressure put on local water resources.
The historical background of the Walker River Decree shows the historical background as researched by Andrew E. Stroud states, “The Special Master for Decree C-125 was a Reno attorney by the name of Robert Price. The federal judge that signed the decree was A.F. St. Sure. After the 1939 decree was issued Special Master Price was no longer associated with the suit. In 1908 ex State Engineer Henry Thurtell submitted his finding for the Tribe [Walker River] with 5 priority dates and a total of 22.93 CFS. These values were later inserted unchanged into Decree 731 (1919). When C-125 was initiated in 1925, one of the goals was to increase the water flow to the reservation. Special Master Robert Price submitted his proposed decree on 12/30/1932. It has the 26.25 CFS wording and is done on Price’s stationary + errors. Last minute lobbying by WRIG [Walker River Irrigation District] forced the court to abandon the new values for the Tribe and the final decree was signed in 1936 with the old values (5 priority dates/22.93cfs) intact. The Tribe protested the decree, which was moved to the 9th Circuit Court of Appeals. The Tribe then spent the next four years in court getting the Price values (26.25 CFS/ 1859 priority date) reinstated. The stakeholders signed the Stipulation on 4/22/1940 (filed in court 4/25/1940)and St. Sure signed the Order for Entry of Amended Final Decree to Conform to Writ of Mandate etc. on 4/24/1940. The court never published a printed, bound official copy of the final 1936 decree (with or without the 1940 amendment) as was done with the other major decrees.”
In the 1936 degree, 254 names are listed as defendants with Walker River Irrigation. No story can be found within the Mineral County Independent and Hawthorne News for that year.
In 2015, Nevada’s state engineer curtailed the amount of water that local farmers and other would receive. An attorney said at last week’s hearing, “The U.S. Board of Water Commissioners wants to create its own set of water rules.”
Water in the west has always been a delicate topic with cases ruling back more than 100 years in some cases. These cases are complicated by water allocations which are often based on 100 percent of the water available and in arid regions with water tables fluctuating year to year and development and population growth, said water is now a hot commodity.
Another important topic brought before the circuit was the impact of water withdrawals and the impact on the environment, wildlife and their habitat and the possible drainage of Walker Lake.
Senior Ninth Circuit Judge Raymond Fisher suggested that possibly the best venue to hear these concerns and govern water rights would be the Nevada Supreme Court.
Brian Stockton, who represented the Nevada Department of Wildlife, suggested that the Nevada Legislature should handle this political question. Not the state court.
Stocketon stated, “While Walker Lake has suffered, the water rights are designed to “make the desert bloom: and the state protects the water rights.” He stated that the matter should not go in front of the Nevada Supreme Court to decide.
The flow of the water is set forth in the April 15, 1936 decree was amended to read, “The irrigation season along the Walker River, its branches and tributaries, extends from the first day of March to the thirty-first day of October of each year, except that in Bridgeport Valley on the East Walker River, and at all points above the Coleville Gauging Station on the West Walker River the irrigating season covers the period from March first to September fifteenth of each year.”
The oldest water right found within the decree dates to 1960. The establishment of the Walker River Paiute Tribe was dated November 29, 1859. Walker Lake dates back to prehistoric times. A remnant of the Ice Age.
Since 1882, Walker Lake has receded 181 feet. In 2017, water from the Walker River finally reached the ancient lake, rising over 13 feet by the end of summer. Though the lake level rose, the concentration of total dissolved solids is still too high to accommodate fish in the lake.
A decision from the court will be announced at a later date.