STATE ENGINEER OF NV v. SOUTH FORK BAND OF TE-MOAK

Nos. 00-17146, 00-17172, 00-17173, 00-17175.

339 F.3d 804 (2003)

STATE ENGINEER, OF the STATE OF NEVADA; Water Commissioners, of the Sixth Judicial District Court, Plaintiffs-Appellees, v. SOUTH FORK BAND OF the TE-MOAK TRIBE OF WESTERN SHO-SHONE INDIANS OF NEVADA; Marvin McDade, in his capacity as Chairman of the South Fork Band Council, Defendants, and United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Defendant-Appellant. State Engineer, of the State of Nevada; Water Commissioners, of the Sixth Judicial District Court, Petitioners-Appellees, Pershing County Water Conservation District, Petitioner-Intervenor-Appellee, v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada; Marvin McDade, in his capacity as Chairman of the South Fork Band Council, Respondents-Appellants, United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondent-Appellee. State Engineer, of the State of Nevada; Water Commissioners, of the Sixth Judicial District Court, Petitioners-Appellees, Pershing County Water Conservation District, Petitioner-Intervenor-Appellee, v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada; Marvin McDade, in his capacity as Chairman of the South Fork Band Council, Respondents, and United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondent-Appellant. State Engineer, of the State of Nevada; Water Commissioners, of the Sixth Judicial District Court, Petitioners-Appellants, and Pershing County Water Conservation District, Petitioner-Intervenor, v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada; Marvin McDade, in his capacity as Chairman of the South Fork Band Council; United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondents-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed July 28, 2003.


Attorney(s) appearing for the Case

Raymond Rodriguez, Nevada Legal Services, Inc., Carson City, NV, for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada.

David C. Shilton, U.S. Department of Justice, Washington, DC, argued for the United States. John C. Cruden, Acting Assistant Attorney General, Environmental & Natural Resources Division, Patrick Barry and William B. Lazarus, U.S. Department of Justice, Washington, DC, joined him on the briefs.

Paul G. Taggart, Deputy Attorney General, Carson City, NV, argued for the State Engineer of the State of Nevada.

Frankie Sue Del Papa, Attorney General, Carson City, NV, joined him on the briefs.

Laura A. Schroeder, Schroeder Law Offices, Portland, OR, for Pershing County Water Conservation District.

Before KOZINSKI and KLEINFELD, Circuit Judges, and BEISTLINE, District Judge.


KOZINSKI, Circuit Judge.

We consider whether a state court that has adjudicated a water decree retains exclusive jurisdiction over its administration.

I

Like many Western states, Nevada follows a two-step process in determining and enforcing rights to the use of water in its river systems. First is the adjudication phase. The state engineer makes an initial determination of the relative usufructuary rights to water among different claimants and files...

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