April 21st, 2010
There’s an old joke about water in the arid west – whiskey is for drinkin’ and water is for fightin’
An interesting example of that canard is the 9th Circuit U.S. Court of Appeals decision on Tuesday that questioned a federal district court order in the Truckee Nevada water case. The federal judge had ordered that interest due in the case would be paid in the form of additional water flowing into Pyramid Lake instead of money.
The 9th Circuit sent the nearly century-old Truckee/Carson water battle back to the district court asking for an explanation of that ruling, but the Appeals Court didn’t reject the idea entirely.
“The novel issue in this appeal concerns the (district) court’s acceptance of the concept of interest payable in water,” the opinion states. “The judgment orders the return of water, not money, so the district court ordered interest to be paid in water.”
The core of the case centers on tribal and federal claims that, from 1974-1979, the Truckee/Carson Irrigation District took more water for Fallon area farmers than permitted by law. The courts have ruled TCID must repay the tribe amounts ranging from 11,000 acre feet to 58,946 acre feet in the peak year, 1979.
The issue involves post-judgment interest to compensate for a plaintiff being deprived of the water — over and above the amount of water improperly diverted during the late 1970s.
TCID argued that interest refers only to money judgments and the district court did not have authority to award water.
The appellate court might have agreed: “we do not believe that water interest is appropriate unless there is some factual basis forwarding more water than was originally taken so as to provide complete relief.”
But the opinion gives District Judge Howard McKibben and the plaintiffs the chance to explain the ruling. It specifically directs district court to explain why water as interest is necessary, the legal basis for the award and its reasoning for setting that interest rate at 2 percent.
The battle over water centers on the fact that more water rights have been appropriated along the Truckee and Carson rivers than there is water in those rivers. As a result, Pyramid Lake has been declining for generations while Fallon area farmers in the Newlands Project say they aren’t getting enough water to irrigate their crops.
Water shortages are going to become a world crisis very soon. Many people are already living without access to adequate and clean water.