                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                           APR 07 2010

                                                                        MO LLY C. DW YER, CLERK
UNITED STATES OF AMERICA,                        No. 08-16767            U .S. C O U R T O F APPEALS




              Plaintiff,                         D.C. No. 3:73-cv-00203-LDG

 and
                                                 MEMORANDUM *
PYRAMID LAKE PAIUTE TRIBE OF
INDIANS,

              Petitioner - Appellant,

  v.

ALPINE LAND & RESERVOIR CO.,

              Defendant,

NEVADA STATE ENGINEER,

              Respondent - Appellee,

 and

ASPEN CREEK, LLC; DAYTON
VALLEY INVESTORS, LLC; STANTON
PARK DEVELOPMENT, INC.,

              Real-parties-in-interest -
              Appellees.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                         Argued and Submitted July 15, 2009
                              San Francisco, California

Before: HALL, W. FLETCHER and PAEZ, Circuit Judges.

      The legal issues in this appeal are essentially identical to those we decided in

United States v. Orr Water Ditch Co., No. 07-17001. We have filed a published

opinion in that case today.

      This appeal arises from Ruling 5823 of the Nevada State Engineer,

allocating groundwater rights in the Dayton Valley Hydrographic Basin (“the

Basin”). The Pyramid Lake Paiute Tribe of Indians (“the Tribe”) opposed many of

the applications. The Tribe contended that the groundwater in the Basin was over-

appropriated and that granting the applications would impair their federally

decreed water rights under the Alpine Decree. The State Engineer ruled against the

Tribe. Inter alia, the Engineer ruled that the Tribe’s decreed water rights were not

protected against diminution as a result of allocations of groundwater. The Tribe

appealed the Engineer’s ruling to the federal district court.

      The district court held that it did not have subject matter jurisdiction over the

Tribe’s appeal, holding that the appeal should be brought in the Nevada state court



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in Lyon County. The district court so held even though the Tribe contended in its

appeal that the Engineer’s ruling adversely affected its water rights under the

Alpine Decree.

      The district court’s holding is inconsistent with our decision today in United

States v. Orr Water Ditch Co. We vacate and remand to the district court for

further proceedings consistent with that decision.

      VACATED and REMANDED.




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