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United States v. Walker River Irrigation District

United States District Court, D. Nevada

July 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WALKER RIVER IRRIGATION DISTRICT, a corporation, et al., Defendants. WALKER RIVER PAIUTE TRIBE, Plaintiff-Intervenor,

          KAREN A. PETERSON, ESQ., ALLISON MacKENZIE, LTD., Attorneys for the UNITED STATES BOARD OF WATER COMMISSIONERS and CHIEF DEPUTY WATER COMMISSIONER/ WATER MASTER.

          Christopher W. Mixson Don Springmeyer, Esq., Christopher W. Mixson, Esq., WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP, Attorneys for National Fish & Wildlife Foundation and Walker Basin Conservancv.

          STIPULATION TO RESOLVE NATIONAL FISH & WILDLIFE FOUNDATION'S PETITION FOR WRIT OF MANDAMUS DIRECTING CHIEF DEPUTY WATER COMMISSIONER OF THE UNITED STATES BOARD OF WATER COMMISSIONERS TO COMPLY WITH WALKER RIVER DECREE; AND [PROPOSED] ORDER

         The NATIONAL FISH AND WILDLIFE FOUNDATION[1] by and through its attorneys, WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP, and the UNITED STATES BOARD OF WATER COMMISSIONERS (“Board”) and CHIEF DEPUTY WATER COMMISSIONER/WATER MASTER (“Water Master”), by and through their attorneys, ALLISON MacKENZIE, LTD. stipulate to resolve Petitioner's Petition for Writ of Mandamus Directing Chief Deputy Water Commissioner of the United States Board of Water Commissioners to Comply With Walker River Decree (ECF No. 1560) as follows:

         1. The Water Master shall immediately start delivering and/or administering Petitioner's Permit 80700 decree rights when in priority. The USGS Walker River Below Yerington Weir Gage (No. 10301115) (“Yerington Weir Gage”) will be used to measure water per Permit 80700 when in priority during the irrigation season. If the Yerington Weir Gage is not funded during the term of this Stipulation, a measuring gage at a suitable location to the Board will be established at the expense of the Petitioner.

         2. The Petitioner agrees to fund the reactivation by the United States Geological Survey (“USGS”) of the Walker River at Miller Lane near Yerington Gage (No. 10301120) (“Miller Lane Gage”) by July 15, 2019 for a trial period of three irrigation seasons for the Water Master's administration of instream flows under Permit 80700 for the approximately ten miles from the Yerington Weir to the USGS Walker River Near Wabuska Gage (No. 10301500) (“Wabuska Gage”). In order to reduce the costs of operating the Miller Lane Gage, the Petitioner, the Board, and the Water Master agree that the USGS will only operate, and will therefore only charge for costs of operation of, the Miller Lane Gage during the irrigation season. Petitioner seeks to obtain the discounted cost-share rate for such gages available to governmental entities. These discounts in the costs of gage operation are a principal condition upon which Petitioner has relied for its agreement to this Stipulation in light of Petitioner's position as set forth in the Petition and Reply that additional gages are unnecessary for administration of Program Water under Permit No. 80700. Should such cost discounts not be available during the term of this Stipulation, the parties agree to meet and confer to attempt to address Petitioner's concerns regarding the Miller Lane Gage, including alternative means to reduce Petitioner's financial obligation.

         3. If the Miller Lane Gage is not operational by July 15, 2019, the Water Master reserves the right to stop delivering water under Permit 80700 and to not deliver water in priority under Permit 80700 until the Miller Lane Gage is in operation.

         4. At the conclusion of the three season trial period at the end of the 2021 irrigation season, the Water Master and the Petitioner will convene a technical analysis, at which they are entitled to include any and all representatives of their choosing, to review and analyze the stream flow data generated by the Yerington Weir Gage and the Miller Lane Gage to discuss the hydrologic benefit, necessity, and/or effectiveness of the Yerington Weir Gage and/or Miller Lane Gage, including for administration of the instream flows under the Walker River Decree in the future. During the technical review, the Water Master and the Petitioner will also discuss the Water Master's requirement in her November 1, 2018 letter for additional gages between the Yerington Weir and the Wabuska Gage and the continued use of the existing Yerington Weir Gage.

         5. The Petitioner, the Water Master, and the Board reserve their respective rights and positions regarding the issues raised in the Petition (ECF No. 1560), Response (ECF No. 1565) and Reply (ECF No. 1567), and each has not waived the right in the future to seek a formal determination from the Court on the issues raised therein going forward after the 2021 irrigation season.

         6. Based upon this Stipulation, the Petitioner, Water Master and the Board request the Court vacate the hearing set for July 10, 2019 in the Court's Minute Order on June 3, 2019 on Petitioner's Petition for Writ of Mandamus Directing Chief Deputy Water Commissioner of the United States Board of Water Commissioners to Comply With Walker River Decree (ECF No. 1560).

         ORDER

         THE STIPULATION IS APPROVED AND IT IS SO ORDERED.

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Notes:

[1] The National Fish and Wildlife Foundation purchased the decreed water rights at issue in the Petition for Writ of Mandamus in the course of its administration of the Walker Basin Restoration Program (“Program”). Subsequently, management and administration of the Program were transferred to the Walker Basin Conservancy. These ...


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