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United States v. Orr Water Ditch Co.

United States District Court, D. Nevada

December 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ORR WATER DITCH CO., et al., Defendants. Re Nevada State Engineer Ruling No. 6327.

          WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP DON SPRINGMEYER, ESQ. Nevada Bar No. 1021 CHRISTOPHER W. MIXSON, ESQ. Nevada Bar No. 10685 Attorneys for Pyramid Lake Paiute Tribe

          ATTORNEY GENERAL, STATE OF NEVADA JUSTINA A. CAVIGLIA, ESQ. Deputy Attorney General Nevada Bar No. 9999 Attorneys for the Nevada State Engineer

          TAGGART & TAGGART, LTD. PAUL TAGGART, ESQ. Nevada Bar No. 6136 DAVID RIGDON, ESQ. Nevada Bar No. 13567 PAUL TAGGART, ESQ. Nevada Bar No. 6136 DAVID RIGDON, ESQ. Nevada Bar No. 13567

          STIPULATION AND ORDER REMANDING NEVADA STATE ENGINEER RULING NO. 6327

          LLOYD D. GEORGE UNITED STATES DISTRICT COURT JUDGE

         Petitioner, Pyramid Lake Paiute Tribe (“Tribe”); Respondent, Jason King, P.E., State Engineer, Division of Water Resources, Department of Conservation and Natural Resources of the State of Nevada (“State Engineer”); and the City of Fernley, a political subdivision of the State of Nevada (“Fernley”) (collectively the “Parties”), hereby file this Stipulation and [Proposed] Order Remanding Nevada State Engineer Ruling No. 6327, as set forth more fully below.

         I. Background

         On December 19, 2011, Fernley filed groundwater change application numbers 81398, 81399, 81400, and 81401 (“Fernley's Applications”) with the State Engineer seeking to change the points of diversion and place of use of existing groundwater rights identified as Permit Nos. 35976, 40004, 70288, and 70289 (the “Base Water Rights”). The Tribe timely filed protests of Fernley's applications with the State Engineer, requesting that Fernley's Applications be denied on various grounds and for various reasons. On December 2, 2015, the State Engineer issued Ruling No. 6327 wherein he overruled the Tribe's protests and granted Fernley's Applications. On December 31, 2015, the Tribe timely appealed State Engineer Ruling No. 6327 to this Court. The Tribe alleges in its Petition for Review and Notice of Appeal (ECF No. 1597) that the State Engineer's determinations in Ruling 6327 are unsupported by the evidence, are clearly erroneous, and are based on the misapplication of governing law, and therefore that Ruling 6327 enables Fernley to receive water to which it is not legally entitled.

         In the interest of judicial economy, and to attempt to resolve issues raised in the Tribe's Petition for Review and Notice of Appeal, the Parties stipulate as follows. The Parties' stipulation is contingent upon the issuance of this order from this Court remanding Ruling 6327 to the State Engineer for further proceedings as more fully set forth below. The Parties' stipulation is also conditioned upon the stipulated scope of the remand proceedings as set forth below.

         II. Terms of Stipulation for Remand of Ruling 6327

         The Parties stipulate and the Court orders as follows:

         A. Within fifteen (15) days of the entry of this stipulation as an Order of the Court, the State Engineer shall, in a written notice or order, schedule remand proceedings regarding Ruling No. 6327, to commence within ninety (90) days of the date of the State Engineer's notice or order;

         B. The remand proceedings shall consist of a technical session to be held by the State Engineer with representatives from the Tribe and from Fernley, at their sole discretion and choosing (“Technical Session”), at which the State Engineer will provide the Parties with the data, analysis, methodology and all other related documents and details upon which the State Engineer relied for the findings and conclusions set forth in Ruling 6327;

         C. Within thirty (30) days of the Technical Session, the Tribe and Fernley may provide to the State Engineer any additional analysis, evidence, responses or materials they deem necessary in response to the Technical Session, Ruling 6327, Fernley's Applications, or the Tribe's protests of the same;

         D. After completing a review of the information provided by the Tribe and Fernley pursuant to Part II.C above, the State Engineer shall issue a ruling on remand with respect to ...


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