13 ELR 20704 | Environmental Law Reporter | copyright © 1983 | All rights reserved

Nevada v. United States

Nos. 81-2245; -2276; 82-83 (U.S. June 24, 1983)

ELR Digest

The Supreme Court rules that res judicata bars the United States and the Pyramid Lake Paiute Tribe from seeking water rights to the Truckee River to preserve Pyramid Lake and its fish populations. In the Orr Ditch litigation, settled in 1944, the United States, on behalf of the tribe and the Newlands Reclamation Project (NRP), sought to establish water rights to the Truckee River. Relying on Winters v. United States, which held that when the United States reserves land it implicitly reserves the water needed to serve the purposes of the reservation, the Orr Ditch court allocated the tribe enough water to irrigate specified lands on its reservation.

In 1973 the United States claimed that the Orr Ditch order only established how much water was reserved for irrigation, and that more was implicitly reserved to preserve Pyramid Lake and neighboring fish spawning grounds, which are on tribal lands. The trial court held that res judicata barred the government and tribe from claiming more Truckee River water than allocated in Orr Ditch. The Ninth Circuit reversed the trial court in part, ruling that because the tribe and the NRP were not adversaries in Orr Ditch, the tribe could seek water rights currently claimed by holders of NRP lands.

Before the Supreme Court, the government argued that reallocation of rights between the tribe and the NRP would merely be reallocation of rights that Orr Ditch awarded to a single party — the government. The Court holds, however, that the government has never held full ownership of the NRP water rights. The government merely sits in something akin to a fiduciary position with the right to beneficial use of the water residing in the owners of NRP lands.

The Court next holds that if the cause of action in the present case is the same as in the Orr Ditch suit, and if the parties are the same or in privity with those in Orr Ditch, then res judicata applies. The Court holds that the cause of action is the same because the government had the opportunity and the intent to litigate the tribe's entire water right for reservation lands. The Court holds that as a plaintiff, the government may be bound by Orr Ditch because it was party to the case, and the tribe may be bound because its interests were fully represented. All defendants in Orr Ditch and their successors in interest may invoke res judicata against the government or the tribe. The successors to the NRP's water rights, though not adverse to the tribe in Orr Ditch, nonetheless may also invoke res judicata. Strict adversity in water rights adjudication is rare. The interests of the tribe and the NRP were separately pleaded, and the two had separate representatives in the settlement negotiations that led to the Orr Ditch order. The government's position cannot be compared to that of a private trustee with a conflict of interest; it is necessary and allowable for the government to simultaneously represent different interests. Finally, those defendants who appropriated water after the Orr Ditch decision also may invoke res judicata even though they were not party to the suit. Water rights decisions, though in personam actions, have a strong in rem character. If subsequent appropriators could not rely on past adjudications, rights could never be settled.

In a concurring opinion, Justice Brennan notes that the tribe may have a cause of action against the government for breach of trust obligations.

The full text of this opinion is available from ELR (38 pp. $5.25, ELR Order No. C-1313).

Counsel for Petitioners
E. Barrett Prettyman Jr.
Hogan & Hartson
815 Connecticut Ave. NW, Washington DC 20006
(202) 331-4500

Brian McKay, Attorney General; John W. Hoffman, Harold A. Swofford
Heroes Memorial Bldg., Carson City NV 89710
(702) 885-4170

Counsel for Respondents
Frederick G. Girard, Andrea M. Miller, Janet K. Goldsmith, Robin L. Stewart
Kronick, Moskovitz, Tiedemann & Girard
Suite 900, 555 Capitol Mall, Sacramento CA 95814
(916) 444-8920

James W. Johnson Jr.
Johnson & Adams, Ltd.
111 California Ave., Reno NV 89509-1671
(702) 323-8616

Robert C. Pelcyger
Fredericks & Pelcyger
1007 Pearl St., Boulder CO 80302
(303) 443-1683

Michael R. Thorp
Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn
1200 First Interstate Plaza, Tacoma WA 98402
(206) 572-4500
Edwin F. Kneedler, Louis F. Claiborne; Rex E. Lee, Solicitor General
Department of Justice, Washington DC 20530
(202) 633-3261

Robert L. Klarquist, Dirk D. Snel; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Rehnquist, J.


13 ELR 20704 | Environmental Law Reporter | copyright © 1983 | All rights reserved