Ninth Circuit sides with Nevada ranch over national park water rights

The Nevada ranch cited a 1952 federal law that waives the federal government's sovereign immunity over water rights cases.(CN) — A Ninth Circuit panel on Wednesday determined that a 74-year-old amendment stripped the federal government of its sovereign immunity in a northern Nevada ranch’s dispute over water rights for creeks that flow through a national park.The split decision from the three-judge panel is a win for Baker Ranches, which argued that 1952’s McCarran Amendment applied to the case.“Plaintiffs have contended throughout that sovereign immunity was waived by the McCarran Amendment, which was enacted in 1952 but retroactively applies to the administration of previously acquired water rights,” wrote U.S. Circuit Judge John Owens, a Barack Obama appointee, for the majority. “We agree.”That amendment was intended to resolve confusing and conflicting water-use issues in the West. The United States claimed massive water rights and refused to comply with state court decisions, leading to the amendment.Baker Ranches has water rights from a 1934 state court decree for the Baker-Lehman Creeks. The water, which also flows through the Great Basin National Park, supports the ranch’s operations.The ranch had claimed the national park was reducing its water flow, which could have led it to fail as a business. However, a lower court determined the federal government had sovereign immunity and dismissed the case for lack of jurisdiction.Owens wrote that the Baker-Lehman decree was intended to be a final determination of all water rights on the Baker-Lehman Creeks. The federal government argued that applying the amendment in this case is unfair because it would lead to retroactive forfeiture of all federal claims.That argument is contrary to the purpose of the McCarran Amendment, Owens wrote.“The United States would instead have us reopen a settled determination that has stood for decades,” he wrote. “Indeed, sixty-seven decrees in Nevada predate the McCarran Amendment’s waiver of sovereign immunity, and the United States’ argument undermines the finality of each of them.”The government also argued that the amendment only affects cases about adjudicating or administering water rights, which meant it didn’t apply in this case because Baker Ranches sought relief much greater than the administration of water rights.Baker Ranches asked that the government not divert water, unless permitted under the decree. It also wanted it to stop planting vegetation in riparian areas.Owens noted the decree stated that all water users must keep the main stream clean of weeds, vegetation and silt deposits. Planting vegetation is contrary to keeping that channel reasonably clean of it.“The United States’ own water rights enjoy the protection of the Baker-Lehman Decree; the United States must therefore respect the water rights of others under the very same decree,” Owens wrote, with U.S. District Judge Sidney Fitzwater — a Ronald Reagan appointee sitting by designation — joining the majority.U.S. Circuit Judge Johnnie Rawlinson, a Bill Clinton appointee, dissented.“The plain language of the statute, Ninth Circuit precedent, and Supreme Court precedent support the district court’s decision,” Rawlinson wrote.According to Rawlinson, Baker Ranches has trespassed onto national park land and performed significant construction activity. It’s also sought to curtail the government’s fire suppression efforts, which it’s said obstruct waterflow.The McCarran Amendment applies when the federal government is a party to a proceeding involving the adjudication or administration of water rights, he added.“And as the majority pointed out repeatedly, the United States decidedly was not a party to the proceedings resulting in the Baker-Lehman decree,” Rawlinson wrote. “Thus, under the plain language of the statute, the United States did not waive its sovereign immunity.”Attorney Ben Hogan, representing Baker Ranches, wasn’t immediately available for comment. The U.S. Justice Department couldn’t be reached for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads