Ninth Circuit sends Humboldt River water battle back to state court

The Ninth Circuit Court of Appeals has ordered the battle between the state and the Te-Moak tribe over who controls Humboldt River water back to state district court.

The tribe and U.S. government have been fighting for three years to get the case into federal district court in Reno, arguing the tribe isn't subject to state law in a water dispute.

The Pershing County court set out a decree controlling who gets how much water from the Humboldt River more than 70 years ago. The Te-Moak tribe cooperated with the Humboldt Decree for 55 years, but decided to take control of the irrigation head gates on reservation land in 1998 claiming tribal sovereignty. State officials said the tribe was taking whatever amount of water it wanted, ignoring the rights of other water owners.

Water commissioners who went on the land to check the head gates were arrested by tribal officials who passed a resolution saying from that point on, they would control the irrigation head gates on the Humboldt River.

The state went to court and the Nevada Supreme Court ruled they have no right to keep the water commissioner out or to violate the decree by taking water they don't own.

The tribe and the U.S. government went to federal court where U.S. District Judge Ed Reed in Reno tossed it back to state court, saying he was retaining "concurrent jurisdiction" but would "abstain" from acting at that point.

Now, Appellate Judge Alex Kozinski ruled there is no concurrent jurisdiction, that the state district court in Pershing County, through the Humboldt Decree, has "prior exclusive jurisdiction" over administration of water rights on the Humboldt. He said it is long established in law that when one court has taken jurisdiction over a case, it is "withdrawn from the jurisdiction" of other courts with overlapping jurisdiction. He turned the case back over to Winnemucca Judge Richard Wagner saying the federal government and the tribe will both have to argue their case there.

In addition, he said federal law under the McCarran Amendment waives the federal government's immunity from lawsuits involving water rights.

Kozinski's opinion noted that "given the zero-sum nature of the resource, any party's unlawful diversion of water from the stream necessarily affects other users."

But he declined to take any position on the merits of the case.