                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF                   No. 15-16478
AMERICA,
        Plaintiff-Appellant,          D.C. No.
                                  CV 73-0127 RCJ
            and                Subproceeding: C-125-B

WALKER RIVER PAIUTE
TRIBE,
       Intervenor-Plaintiff,

             v.

WALKER RIVER IRRIGATION
DISTRICT; ESTATE OF
HERBERT GARMS, et al.;
CIRCLE BAR N RANCH,
L.L.C., et al.; E.L.W.
RANCHES, INC.; TRI-STATE
MOTOR TRANSIT COMPANY;
DESERT PEARL FARMS, GP,
et al.; DOUGLAS COUNTY,
NEVADA; JOHN A. MATHIAS,
ET AL.; BREAK-A-HEART,
LLC, et al.; BENTLY FAMILY
LTD. PARTNERSHIP, et al.;
HAWTHORNE UTILITIES, et
al.; NEVADA BIGHORNS
UNLIMITED; DAVID J. &
PAMELA A. PERI FAMILY
2 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

TRUST AGREEMENT, et al.;
NATIONAL FISH AND
WILDLIFE FOUNDATION;
DWIGHT CRAIG DONOVAN;
YERINGTON VENTURES,
LLC; DARLA CLARKE
PERRY, et al.; ANNETTE R.
SWAINSTON, et al.;
RESIDUAL TRUST OF THE
HEIMAN FAMILY TRUST, et
al.; VGR LIMITED
PARTNERSHIP; MOTLEY
LIVING TRUST DATED 12-
23-70; BORDA FAMILY LP;
THEODORE DAVID HAIGHT;
LELAND D. HAYDEN, et al.;
MARJORIE L. URREA, et al.;
FRED FULSTONE, JR.;
NEVADA STATE OF, et al.;
GREGORY B. ADAMS, et al.;
ARLENE M. HOFERER, et al.;
CALIFORNIA DEPARTMENT
OF FISH & GAME, et al.;
NORMAN W. AND KELLI J.
ANNETT FAMILY TRUST, et
al.; ANTLER PEAK GOLD
INC.; MICHAEL J. CHILTON;
COUNTY OF MONO,
CALIFORNIA, et al.; SMITH
VALLEY FIRE PROTECTION
DISTRICT, et al.; KYLE A.
RUF; SHANE BRANDON;
BOREALIS MINING CO.;
  UNITED STATES V. WALKER RIVER IRRIGATION DIST. 3

J & S ROBERTS TRUST
DATED 2-26-96; SUELLEN
FULSTONE, et al.; MINERAL
COUNTY; CENTENNIAL
LIVESTOCK; U.S. BOARD OF
WATER COMMISSIONERS;
FENILI FAMILY TRUST, c/o
Peter Fenili and Veronica
Fenili, Trustees; SIX-N-
RANCH, INC., c/o Richard
and Cynthia Nuti; MICHAEL
NUTI; NANCY NUTI; RALPH
E. NUTI; MARY E. NUTI;
LAWRENCE M. NUTI; LESLIE
NUTI; MICA FARMS, LLC,
c/o Mike Faretto; JOHN AND
LURA WEAVER FAMILY
TRUST, c/o Lura Weaver,
Trustee; SMITH VALLEY
GARAGE, INC., c/o Dan
Smith and Shawna Smith;
DONALD GIORGI; LORIE
MCMAHON; MERLE
MCMAHON; LYON COUNTY,
       Defendants-Appellees.
4 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

UNITED STATES OF                    No. 15-16479
AMERICA,
                   Plaintiff,          D.C. No.
                                  CV 73-00127 RCJ
            and                 Subproceeding: C-125-B

WALKER RIVER PAIUTE
TRIBE,                                OPINION
       Intervenor-Plaintiff-
                Appellant,

             v.

WALKER RIVER IRRIGATION
DISTRICT; ESTATE OF
HERBERT GARMS, et al.;
CIRCLE BAR N RANCH,
L.L.C., et al.; E.L.W.
RANCHES, INC.; TRI-STATE
MOTOR TRANSIT COMPANY;
DESERT PEARL FARMS, GP,
et al.; DOUGLAS COUNTY,
NEVADA; JOHN A. MATHIAS,
et al.; BREAK-A-HEART,
LLC, et al.; BENTLY FAMILY
LTD. PARTNERSHIP, et al.;
HAWTHORNE UTILITIES, et
al.; NEVADA BIGHORNS
UNLIMITED; DAVID J. &
PAMELA A. PERI FAMILY
TRUST AGREEMENT, et al.;
NATIONAL FISH AND
WILDLIFE FOUNDATION;
  UNITED STATES V. WALKER RIVER IRRIGATION DIST. 5

DWIGHT CRAIG DONOVAN;
YERINGTON VENTURES,
LLC; DARLA CLARKE
PERRY, et al.; ANNETTE R.
SWAINSTON, et al.;
RESIDUAL TRUST OF THE
HEIMAN FAMILY TRUST, et
al.; VGR LIMITED
PARTNERSHIP; MOTLEY
LIVING TRUST DATED 12-
23-70; BORDA FAMILY LP;
THEODORE DAVID HAIGHT;
LELAND D. HAYDEN, et al.;
MARJORIE L. URREA, et al.;
FRED FULSTONE, JR.;
NEVADA STATE OF, et al.;
GREGORY B. ADAMS, et al.;
ARLENE M. HOFERER, et al.;
CALIFORNIA DEPARTMENT
OF FISH & GAME, et al.;
NORMAN W. AND KELLI J.
ANNETT FAMILY TRUST, et
al.; ANTLER PEAK GOLD
INC.; MICHAEL J. CHILTON;
COUNTY OF MONO,
CALIFORNIA, et al.; SMITH
VALLEY FIRE PROTECTION
DISTRICT, et al.; KYLE A.
RUF; SHANE BRANDON;
BOREALIS MINING CO.;
J & S ROBERTS TRUST
DATED 2-26-96; SUELLEN
FULSTONE, et al.; MINERAL
6 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

COUNTY; CENTENNIAL
LIVESTOCK; U.S. BOARD OF
WATER COMMISSIONERS;
FENILI FAMILY TRUST, c/o
Peter Fenili and Veronica
Fenili, Trustees; SIX-N-
RANCH, INC., c/o Richard
and Cynthia Nuti; MICHAEL
NUTI; NANCY NUTI; RALPH
E. NUTI; MARY E. NUTI;
LAWRENCE M. NUTI; LESLIE
NUTI; MICA FARMS, LLC,
c/o Mike Faretto; JOHN AND
LURA WEAVER FAMILY
TRUST, c/o Lura Weaver,
Trustee; SMITH VALLEY
GARAGE, INC., c/o Dan
Smith and Shawna Smith;
DONALD GIORGI; LORIE
MCMAHON; MERLE
MCMAHON; LYON COUNTY,
       Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Nevada
      Robert Clive Jones, District Judge, Presiding

        Argued and Submitted August 30, 2017
                Pasadena, California

                  Filed May 22, 2018
    UNITED STATES V. WALKER RIVER IRRIGATION DIST. 7

      Before: A. Wallace Tashima, Raymond C. Fisher,
              and Jay S. Bybee, Circuit Judges.

                    Opinion by Judge Tashima


                            SUMMARY*


                            Water Rights

    The panel reversed the district court’s order dismissing,
on res judicata grounds, an action brought by the United
States and the Walker River Paiute Tribe against the Walker
River Irrigation District and others concerning water rights in
the Walker River basin.

     This case began in 1924 when the United States filed suit
in Nevada federal court to establish water rights in the Walker
River Basin on behalf of the Walker River Paiute Tribe. In
1936, the court entered the Water River Decree awarding
water rights to the Tribe and various other claimants. In
1940, after remand from the Ninth Circuit, the district court
amended the original decree and retained jurisdiction to
modify it. In 1991, the Walker River Irrigation District filed
a petition invoking the court’s continuing jurisdiction over
the waters of the Walker River. The petition was in response
to a California State Water Resources Control Board decision
to issue restrictions on the District’s California water licenses.
 The current appeals arise from the counterclaims in the 1991
action filed by the Tribe in 1992 (and later by the United

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
8 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

States) asserting new water rights. In May 2015, without
briefing or argument on the issue, the district court sua sponte
dismissed all of the Tribe’s and the United States’
counterclaims on res judicata or jurisdictional grounds.

    The panel first held that the district court was correct that
it retained jurisdiction to litigate additional rights in the
Walker River Basin and to modify the 1936 Decree. On the
merits, the panel held that the district court erred in
characterizing the counterclaims as part of a new action. The
panel concluded that based on the procedural history and the
fact that the Tribe and the United States brought their
counterclaims under the same caption as the 1924 action, the
counterclaims did not constitute a new action. The panel
further held that the district court erred by dismissing the
claims sua sponte on the basis of res judicata without first
giving the parties an opportunity to be heard on the issue.
Moreover, the panel held that because the counterclaims were
not a new action, traditional claim preclusion and issue
preclusion did not apply.

    The panel directed that on remand, the case should be
randomly reassigned to a different district judge. The panel
reluctantly concluded that reassignment was appropriate
because it believed (1) that Judge Jones would have
substantial difficulty putting out of his mind previously
expressed views about the federal government and its
attorneys, and (2) that reassignment will preserve the
appearance of justice.
   UNITED STATES V. WALKER RIVER IRRIGATION DIST. 9

                       COUNSEL

Elizabeth Ann Peterson (argued), David L. Negri, Andrew
“Guss” Guyarino, Katerine J. Barton, David C. Shilton, and
William B. Lazarus, Attorneys; Jeffrey H. Wood, Acting
Assistant Attorney General; United States Department of
Justice, Washington, D.C.; for Plaintiff-Counterclaimant-
Appellant.

Wes Williams Jr. (argued) Schurz, Nevada, for Intervenor-
Plaintiff-Appellant.

Gordon H. DePaoli (argued) and Dale E. Ferguson,
Woodburn & Wedge, Reno, Nevada, for Defendant-Appellee
Walker River Irrigation District.

Bryan L. Stockton (argued), Senior Deputy Attorney General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada; for Defendant-Appellee
Nevada Department of Wildlife.

Roderick E. Walston (argued) and Steven G. Martin, Best
Best & Krieger, Walnut Creek, California; Stephen B. Rye,
District Attorney, Lyon County District Attorney’s Office,
Yerington, Nevada; Jerry M. Snyder, Reno, Nevada; Stacy
Simon, County Counsel, Office of the County Counsel,
Mammoth Lakes, California; Therese A. Ure, Schroeder Law
Offices P.C., Reno, Nevada; for Defendants-Appellees Lyon
County, et al.
10 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

                             OPINION

TASHIMA, Circuit Judge:

    This case is but one among a group of related actions in
a long-running and complex dispute over water rights in the
Walker River Basin. This case began in 1924 when the
United States filed suit in Nevada federal court to establish
water rights in the Walker River Basin on behalf of the
Walker River Paiute Tribe (“Tribe”). In 1936, the court
entered a decree awarding water rights to the Tribe and
various other claimants. In 1940, after remand from the
Ninth Circuit, the district court amended the original decree
and retained jurisdiction to modify it.1

     The issues we confront in these appeals stem from the
counterclaims filed by the Tribe in 1992 (and later by the
United States) asserting new water rights. The district court
ordered the Tribe and the United States to name as
counterdefendants all water rights claimants in the Walker
River Basin and to serve them with summons and the
counterclaims. In 2013, after service was substantially
complete, Judge Robert Clive Jones2 ordered briefing on Rule
12(b) issues related to jurisdiction and expressly ordered the
litigants not to address other issues, such as res judicata,
which were to be addressed at a later date. Nonetheless, in
May 2015, without briefing or argument on the issue, the
district court sua sponte dismissed all of the Tribe’s and the


    1
      Following the convention of the parties, we refer to the amended
decree as the Decree or the 1936 Decree.
    2
      Judge Jones inherited this case in 2011 from the late Judge Edward
C. Reed.
    UNITED STATES V. WALKER RIVER IRRIGATION DIST. 11

United States’ counterclaims on res judicata or jurisdictional
grounds. The Tribe and the United States appeal.

    We hold that the district court had continuing jurisdiction
over the counterclaims and that it erred in dismissing the
claims on res judicata or jurisdictional grounds without
giving the parties an opportunity to brief the issue.
Accordingly, we reverse and remand. On remand, we also
order the reassignment of this case to another district judge.

I. Facts and Procedural Background3

    A. The Walker River and the Reservation

    The Walker River originates in the Sierra Nevada
Mountains in Mono County, California, and terminates at
Walker Lake in Mineral County, Nevada. The river is
comprised of two forks: the East Walker River and West
Walker River. The two forks merge near Yerington, Nevada,
where the river then flows through the Walker River Paiute
Reservation (“Reservation”). The river continues another
twenty-one miles south before draining into Walker Lake.
The Walker River Basin covers approximately 4000 square
miles. The Reservation dates to November 29, 1859, and was
established for the benefit of the Tribe. The initial
Reservation encompassed 320,000 acres of land located
southeast of Reno, Nevada, in the Walker River Basin.




    3
      Because of the long-running nature of disputes over Walker River
Basin water rights and the relation of historical facts to the dispute now
before this court, we include a somewhat extensive account of the facts
and procedural background.
12 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

    B. First Federal Proceeding

    At the turn of the twentieth century, conflicting claims to
water rights arose among residents of the Walker River Basin.
In 1902, Miller & Lux Corporation, a cattle and land
company, filed suit in federal court seeking adjudication of its
water rights in the Walker River Basin vis-à-vis 150 upstream
entities and individuals. See Miller & Lux v. Rickey, 146 F.
574 (C.C.D. Nev. 1906);4 Rickey Land & Cattle Co. v. Miller
& Lux, 218 U.S. 258, 259 (1910). Two years later, Rickey
Land & Cattle Company filed two actions in California state
court against Miller & Lux, also seeking to quiet its title to
water rights in the Walker River Basin. See Rickey Land &
Cattle, 218 U.S. at 259. Miller & Lux moved to enjoin the
proceedings in California on the ground that the federal court
in Nevada had acquired prior exclusive jurisdiction. Id. at
260. The lower court agreed and enjoined the California
proceedings. Id. The Supreme Court affirmed. Id. at 262.

    In 1919, the lower federal court issued the “Rickey
Decree” apportioning the relative surface-water rights among
the 151 parties. Although neither the United States nor the
Tribe participated in that litigation, the Rickey Decree
recognized a state-law based irrigation water right for the
Reservation. See United States v. Walker River Irrigation
Dist., 11 F. Supp. 158, 160 (D. Nev. 1935).




    4
       Miller & Lux was filed in the Circuit Court for the District of
Nevada. That court was abolished in 1911, and its jurisdiction was
transferred to the United States District Court for the District of Nevada.
   UNITED STATES V. WALKER RIVER IRRIGATION DIST. 13

    C. The 1924 Federal Proceeding

     In 1924, the United States filed suit in the District of
Nevada to establish federal water rights for the Reservation.
At the time, the Reservation encompassed 86,400 acres of
land. The named defendants were 253 individuals and
entities located upstream from the Reservation. See id. at
159. The complaint, as amended in 1926, sought a right to an
unimpeded flow of 150 cubic feet per second (“cfs”) of water
from the Walker River. The basis for the water claim was the
original 1859 reservation of land, which the complaint
alleged constituted an implicit “set aside . . . of the waters of
the said Walker River and its tributaries [in the amount of]
150 cubic feet of water per second of time.” In addition, the
United States requested a determination of “the relative rights
of the parties hereto in and to the waters of the said river and
its tributaries in Nevada and California.”

    Although other reservations existed in the Walker River
Basin as of 1926, the amended complaint did not assert
claims to water rights on behalf of any other tribes. Nor did
the amended complaint assert claims on behalf of the United
States for any other federally owned properties in the Basin
or seek groundwater rights for any tribe or federal property.

    D. The 1936 Decree

    The district court issued a decision on June 6, 1935, and
entered a decree on April 14, 1936. Walker River Irrigation
Dist., 11 F. Supp. 158. The court denied the United States’
claim to a federal water right for the Reservation, concluding
that the Tribe’s only water rights were based on state-law
principles of prior appropriation. Id. at 167. The bulk of the
decree set forth the amounts of water awarded to the United
14 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

States and each of the other parties. These awards included
rights that the district court had adjudicated in the course of
its proceeding, as well as rights incorporated from the Rickey
Decree.

   Paragraph XI of the Decree provides:

       Each and every party to this suit and their
       [sic] and each of their servants, agents and
       attorneys and all persons claiming by, through
       or under them, and their successors and
       assigns in and to the water rights and lands
       herein described, be and each of them hereby
       is forever enjoined and restrained from
       claiming any rights in or to the waters of
       Walker River and/or its branches and/or its
       tributaries, except the rights set up and
       specified in this decree . . . .

    Paragraph XII provides that the decree “shall be deemed
to determine all of the rights of the parties to this suit and
their successors in interest in and to the waters of Walker
River and its tributaries” with certain exceptions.

   Paragraph XIV provides:

       The Court retains jurisdiction of this cause for
       the purpose of changing the duty of water or
       for correcting or modifying this decree; also
       for regulatory purposes, including a change of
       the place of use of any water user . . . . The
       Court shall hereafter make such regulations as
       to notice and form or substance of any
       applications for change or modification of this
   UNITED STATES V. WALKER RIVER IRRIGATION DIST. 15

        decree, or for change of place or manner of
        use of water as it may deem necessary.

    We reversed in part. United States v. Walker River
Irrigation Dist., 104 F.2d 334, 339–40 (9th Cir. 1939). We
held that, under Winters v. United States, 207 U.S. 564
(1908), the federal government had reserved a federal water
right on behalf of the Tribe for irrigation with a priority year
of 1859, the year that the Reservation was established. Id.
Contrary to the United States’ allegations, however, the Ninth
Circuit concluded that the amount of the reserved right was
only 26.25 cfs because that was the amount needed to sustain
the 2100 acres of irrigable land on the Reservation. Id. at
340.

    On remand, the district court amended the original decree
in a few places. For example, the phrase “as of the 14th day
of April, 1936” was added to Paragraph XII, so that the
amended clause reads: “This decree shall be deemed to
determine all of the rights of the parties to this suit and their
successors in interest in and to the waters of Walker River
and its tributaries as of the 14th day of April, 1936,” with
certain exceptions. (Emphasis added.) The phrase “of point
of diversion or” was added to Paragraph XIV, so that the
amended paragraph reads: “The Court retains jurisdiction of
this cause for the purpose of changing the duty of water or for
correcting or modifying this decree; also for regulatory
purposes, including a change of point of diversion or of the
place of use of any water user . . . .” (Emphasis added.)
Paragraph XI was not amended.
16 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

   E. Later Filings in the 1924 Proceeding

     Appellee Walker River Irrigation District (“WRID”) is a
Nevada irrigation district. Appellees Lyon County et al. are
(1) Lyon County, Nevada; (2) Mono County, California; and
(3) ranching entities, ranchers, and other individuals. Each of
these parties holds certain water rights in the Walker River
Basin under the 1936 Decree. Appellee Nevada Department
of Wildlife (“NDOW”) is the state agency responsible for
administering Nevada’s wildlife laws. Nev. Rev. Stat.
§ 501.331.

    In 1991, WRID filed a petition in the 1924 case invoking
the court’s continuing jurisdiction over the waters of the
Walker River. The petition was in response to a California
State Water Resources Control Board (the “Cal. Water
Board”) decision to issue restrictions on WRID’s California
water licenses. WRID sought to enjoin the Cal. Water Board
from implementing the restrictions; in the alternative, it
sought to move the point of diversion for its storage rights
from their locations in California to locations in Nevada.

    In 1992, the Tribe answered WRID’s petition and filed its
own counterclaims in the same action. As amended in 1997,
the Tribe’s counterclaims asserted three claims for relief.
The first counterclaim involves the right of the Tribe to store
water in Weber Reservoir. The second counterclaim involves
the right of the Tribe to use water on lands restored to the
reservation pursuant to the Act of June 22, 1936, 49 Stat.
1806–07. The third claim for relief asserts a right to use
groundwater underlying and adjacent to the lands of the
Reservation.
    UNITED STATES V. WALKER RIVER IRRIGATION DIST. 17

    The United States also sought leave to file counterclaims.
WRID opposed the United States’ motion and moved to
dismiss the Tribe’s counterclaims on the ground that they
amounted to a complaint in a new action. The district court
rejected that position and allowed the United States to file its
counterclaims. It reasoned that all claims – WRID’s petition,
the Tribe’s counterclaims, and the United States’
counterclaims – “arise[] out of the property rights established,
and not established[,] in the Walker River Decree,” and under
the 1936 Decree, it retained “jurisdiction to manage the
Decree as necessary.” For administrative purposes, the court
established a “subfile A” for WRID’s request to modify the
Decree and a “subfile B” for the Tribe’s and United States’
counterclaims.5

    The United States amended its counterclaims in 1997.
The amended counterclaims assert a total of eleven claims to
water rights in the Walker River Basin, which fall into three
categories: (1) claims on behalf of the Tribe;6 (2) claims on
behalf of various other Indian tribes and Indian individuals in
the Walker River Basin; and (3) claims for several federal
properties. According to the United States these are “all [of
the] known federal interests within the Walker River Basin.”

    On April 18, 2000, the district court ordered the Tribe and
the United States to name as counterdefendants and serve all




    5
        The parties settled subfile A by stipulation in 2007.
     6
       Such rights are “in addition to the right . . . awarded to the United
States in the Decree entered . . . on April 15, 1936.”
18 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

claimants whose rights in the Walker River Basin could be
affected.7

    F. The District Court’s Decision

     In 2011, on the retirement of Judge Reed, the case was
reassigned to Judge Jones. When attorneys representing the
United States first appeared before Judge Jones, he told them
he was “developing a policy” of “disallowing” or “debarring
U.S. Attorneys from Washington . . . because of concerns
about adherence to Nevada Bar standards and ethical
standards.” The appearing attorneys informed him that they
were based in Denver and Boise, and Judge Jones then stated
that he had “no problem” and “would in fact grant the motion
. . . to allow you to appear.” However, Judge Jones later
denied them permission to appear. He withdrew that order
only after the United States filed a petition for a writ of
mandamus in the Ninth Circuit to require Judge Jones to
permit their appearance.8

    In 2013, Judge Jones scheduled briefing on potential
motions to dismiss the counterclaims. At a status conference,
he clarified that the first round of motions should address
jurisdiction only: “[T]his isn’t all motions to dismiss. There
will be a further deadline for that following this jurisdictional
round. . . . I don’t want to address the other jurisdiction

    7
     Initial service of approximately 3,280 parties was complete as of
October 2014.
    8
        The circumstances of Judge Jones’ initial refusal to admit
government counsel pro hac vice and his eventual recanting of that order
after the government petitioned the Ninth Circuit for a writ of mandamus
requiring their admission are recounted in United States v. U.S. District
Court (In re United States), 791 F.3d 945, 950 (9th Cir. 2015).
   UNITED STATES V. WALKER RIVER IRRIGATION DIST. 19

issues especially, for example, like res judicata, U.S. versus
Nevada, unless it directly relates to jurisdiction.” Appellees
filed separate motions to dismiss under Rule 12(b)(1). WRID
argued that, under the terms of the 1936 Decree, the district
court lacked continuing jurisdiction to adjudicate new claims
for water rights in the Walker River Basin, and that the
United States and Tribe were required to file a new action.9
Consistent with the court’s instruction to argue only
jurisdictional issues, briefing on the motions did not raise or
address res judicata.

    On May 28, 2015, the district court granted WRID’s
motion and dismissed all of the counterclaims either as barred
by res judicata, or laches, or for lack of jurisdiction. The
court first concluded that it retained continuing jurisdiction to
adjudicate appellants’ counterclaims: the Decree “is clear in
favor of the Tribe’s and the United States’ reading of
‘modify’ to permit the adjudication of yet-unlitigated rights.”
The court reasoned that “[c]ontinued jurisdiction to ‘modify’
the Decree implies an ability to increase or decrease one’s
rights thereunder,” and that “[t]he phrase ‘correcting or
modifying this decree’ implies that modifications are to be
distinguished from corrections, i.e., that changes to the
Decree may be based on yet-unlitigated claims in addition to
claims that were decided incorrectly or which suffer from
scrivener’s errors.”

    Despite concluding that it had jurisdiction, the district
court abruptly reversed course and held that it “believes the
present action is in fact a new action, and that the present
claims are therefore precluded.” The court gave two reasons

     9
       NDOW’s motion sought to dismiss only the claims to enjoin off-
reservation groundwater pumping.
20 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

for construing the counterclaims as a new action. First, the
Decree “prevents the United States (like all parties) from
claiming any additional rights beyond those adjudicated
therein.” Second, “[t]he Sub-files were given their own
administrative existences, so they are independent cases at
least in form.” In determining that the new action was
precluded, the court relied on Nevada v. United States,
463 U.S. 110 (1983), and the language in the 1936 Decree
stating that the parties are “forever enjoined and restrained
from claiming any rights in or to the waters of Walker River
. . . except the rights set up and specified in this Decree.”

    The district court also noted that “[e]ven if the present
Sub-file were not in substance a new action but better
characterized as a Rule 60(b)(6) motion in the original action,
laches would almost certainly bar the claims.”

    Finally, the district court denied NDOW’s groundwater-
related motion because no “particular claim by the United
States or the Tribe [sought] to enjoin any particular
groundwater pumping,” and, moreover, the court would
properly “preside over any separate action to enjoin
groundwater pumping based on interference with decreed
rights.”

   The Tribe and the United States timely appealed.

II. Standard of Review

    Dismissal of a claim based on res judicata is reviewed de
novo. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985,
987 (9th Cir. 2005). The district court’s interpretation of a
judicial decree is also reviewed de novo, although this court
typically “give[s] deference to the district court’s
    UNITED STATES V. WALKER RIVER IRRIGATION DIST. 21

interpretation based on the court’s extensive oversight of the
decree from the commencement of the litigation to the current
appeal.” Labor/Cmty. Strategy Ctr. v. L.A. Cty. Metro.
Transp. Auth., 263 F.3d 1041, 1048 (9th Cir. 2001) (internal
quotation marks omitted). However, deference to the district
court is reduced where, as here, the district judge has not
overseen the litigation from its inception. Cf. Gates v.
Gomez, 60 F.3d 525, 530 (9th Cir. 1995).10

III.        Discussion

       A. Continuing Jurisdiction

    At the outset, we must determine whether the district
court had jurisdiction under the Decree to hear the
counterclaims. We conclude that the district court was
correct that it retained jurisdiction to modify water rights
under the decree, but erred in concluding that the
counterclaims constituted a “new action.” As such, the
district court had jurisdiction over the counterclaims.

    Paragraph XIV of the 1936 Decree provides that “[t]he
Court retains jurisdiction of this cause for the purpose of
changing the duty of water or for correcting or modifying this
decree; also for regulatory purposes, including a change of
the place of use of any water user . . . .” The district court
read that “modify” in this clause allows the court to
adjudicate yet-unlitigated water rights. We agree. The court
correctly reasoned that “[c]ontinued jurisdiction to ‘modify’
the Decree implies an ability to increase or decrease one’s


       10
       Recall that in this case, which originated in 1924, and in which the
original Decree was entered in 1936, the case was not reassigned to Judge
Jones until 2011, some 87 years after its inception.
22 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

rights thereunder,” and that “[t]he phrase ‘correcting or
modifying this decree’ implies that modifications are to be
distinguished from corrections, i.e., that changes to the
Decree may be based on yet-unlitigated claims in addition to
claims that were decided incorrectly or which suffer from
scrivener’s errors.”

    We reject appellees’ argument that “modifying” should
not be read so broadly. First, although the term “modifying”
would plausibly support either a broader or a narrower
meaning, see BLACK’S LAW DICTIONARY 1156 (10th ed.
2014) (defining“[m]odification” as “[a] change to something;
an alteration or amendment”), appellees’ interpretation is
particularly crabbed and selective. Specifically, appellees
argue that “the modification provision of Paragraph XIV . . .
authorizes the court to (1) modify the duties and authority of
the Water Master,” “(2) modify the definitions in the Decree,
such as the definition of ‘irrigation seasons,’” and
“(3) modify the duties of . . . the parties to pay costs.” In
essence, appellees’ position is that the district court retained
jurisdiction to modify every provision in the Decree except
those provisions setting forth water rights. Paragraph XIV
does not support appellees’ proposed interpretation.

    Second, we agree with the district court that the
juxtaposition of “correcting” with “modifying” in Paragraph
XIV supports the broader reading of modify by suggesting
that the terms have distinct meanings. In contrast, appellees
urge us to apply noscitur a sociis, the principle that “a word
is known by the company it keeps,” Yates v. United States,
135 S. Ct. 1074, 1085 (2015), and draw the opposite
inference from the word “correcting.” They argue that “the
fact that the word ‘modifying’ is used in conjunction with the
word ‘correcting’ . . . indicates that the word ‘modifying’
   UNITED STATES V. WALKER RIVER IRRIGATION DIST. 23

does not refer to changes based on additional water rights”
because “‘correcting’ connotes a relatively minor, technical
change.”

     Courts apply the noscitur a sociis canon to construe a
single term “in a list of terms,” where that term appears open-
ended but should be cabined in light of the other terms in the
list. See id. at 1085–86 (construing the term “tangible object”
as used in “any record, document, or tangible object”). The
purpose of the rule is “to avoid ascribing to one word a
meaning so broad that it is inconsistent with its
accompanying words.” Gustafson v. Alloyd Co., 513 U.S.
561, 575 (1995) (emphasis added). While we agree that
“correcting” connotes a minor, technical change, we disagree
with appellees’ contention that the other powers listed in the
jurisdiction provision are of a lesser magnitude than the
power to add water rights pursuant to the term “modifying.”
The only power that is obviously minor is “correcting”; the
others could just as likely refer to expansive powers. There
is no obvious limitation on the retention of jurisdiction “for
regulatory purposes.” In addition, the meaning of “the duty
of water” at the time of the Decree was the “quantity required
for crop production on a given area, usually during a year or
irrigation season.” See A.P. Davis & Will R. King, Dep’t of
the Interior, Manual of the United States Reclamation Service
326 (1917). Thus, to change the duty of water would also
change the quantities of water awarded, as the amount
awarded is equal to the duty of water multiplied by the
acreage. Appellees’ argument that “modifying” should be
read narrowly is unconvincing.

   Third, the Supreme Court in Arizona v. California,
460 U.S. 605 (1983) (Arizona II), construed a water rights
decree with similar jurisdictional language as retaining
24 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

jurisdiction to address yet-unlitigated rights to the same
waterway. Arizona II addressed requests by the United States
and Indian tribes “to have . . . water rights increased” from
what they were determined to be in Arizona v. California,
373 U.S. 546 (1963) (Arizona I), “earlier proceedings” in the
same case. 460 U.S. at 608. Arizona I culminated in a decree
in which the Court “retained jurisdiction over the case for the
purpose of further modifications and orders that [the Court]
deemed proper.” Id. at 611. The specific language of the
provision retaining jurisdiction was:

        Any of the parties may apply at the foot of
        this decree for its amendment or for further
        relief. The Court retains jurisdiction of this
        suit for the purpose of any order, direction or
        modification of the decree, or any
        supplementary decree, that may at any time be
        deemed proper in relation to the subject
        matter in controversy.

Id. at 618 (emphasis added).

     The Arizona II Court interpreted such language to “grant[]
[it] power to correct certain errors, to determine reserved
questions, and if necessary, to make modifications in the
Decree.” Id. It therefore exercised jurisdiction to consider
the question of whether the tribes were “entitled to additional
water rights,” although it circumscribed “the circumstances
which make exercise of this power appropriate.”11 Id. at 613,
618. Similar to the Arizona I decree, the 1936 Decree retains
jurisdiction for the purpose of “modifying [the] decree.”

    11
       Those restrictions go to the question of whether the claims are
precluded, not whether the court has jurisdiction.
   UNITED STATES V. WALKER RIVER IRRIGATION DIST. 25

Because the Supreme Court in Arizona II relied on a
reference to modification of the Arizona I decree to conclude
that it retained jurisdiction to hear a suit asserting claims for
additional rights, we conclude that the 1936 Decree may
properly be read as also retaining jurisdiction in the Nevada
district court to litigate additional rights in the Walker River
Basin.

    NDOW and the Lyon County et al. parties, take the
position that, despite the retention of jurisdiction in Paragraph
XIV, Paragraph XI of the 1936 Decree declines jurisdiction
to adjudicate additional rights to the Walker River. Paragraph
XI states:

        Each and every party to this suit and their
        [sic] and each of their servants, agents and
        attorneys and all persons claiming by, through
        or under them, and their successors and
        assigns in and to the water rights and lands
        herein described, be and each of them hereby
        is forever enjoined and restrained from
        claiming any rights in or to the waters of
        Walker River and/or its branches and/or its
        tributaries, except the rights set up and
        specified in this decree . . . .

(Emphasis added.) Lyon County notes that the decree
construed in Nevada, 463 U.S. 110, contained almost
identical language.

    This paragraph, however, does not bear on the scope of
the district court’s continuing jurisdiction. Unlike Paragraph
XIV, Paragraph XI does not mention jurisdiction. It instead
purports to limit claims that the parties may bring in any
26 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

forum. Thus, under appellees’ reading, Paragraph XI would
bar the United States, the Tribe, and any other party to the
1924 action from ever bringing another claim to rights in the
Walker River Basin in any court, even if the basis for such
claim – under state or federal law – arose after the 1936
Decree was entered.

    The better reading of Paragraphs XI and XII is that,
together, they reiterate standard preclusion principles, i.e.,
that no party may relitigate a claim to water rights in the
Walker River Basin, in the Nevada District Court or any other
court, that was litigated in the original case as of April 14,
1936. Nevada v. United States supports this interpretation, as
the Nevada Court construed nearly identical language in a
decree not to determine the existence of continuing
jurisdiction, but instead in applying the principles of res
judicata.

    Finally, we hold that the district court erred in
characterizing the counterclaims as constituting a new action.
The district court based its decision on the fact that Judge
Reed assigned the counterclaims to a “subfile” and thus gave
them “their own administrative existence[].” However, this
conclusion contradicts the established procedural practice of
the case, and previous orders from Judge Reed. First,
designating a subfile (emphasis on the prefix “sub”) logically
means that the contents are part of the larger case and not an
entirely new action. In this long-running case, subfiles have
been used to aid administrative convenience and organization.
For example, in 1991, when WRID petitioned for a
modification of the decree it asked the court to designate “a
subproceeding number” for the action. The district court
acceded to this request, designating the petition as subfile A.
None of the parties argued that this constituted “a new
    UNITED STATES V. WALKER RIVER IRRIGATION DIST. 27

action.” Second, Judge Reed, in denying WRID’s 1992
motion to dismiss the counterclaims, already rejected the
argument that the counterclaims should be considered as
claims in a new action.12 Based on the procedural history of
this case, and the fact that the Tribe and the United States
brought their counterclaims under the same caption as the
1924 action, we conclude that these counterclaims do not
constitute a new action.13

    B. Res Judicata

    This circuit has never “upheld a dismissal for claim or
issue preclusion where the parties were not given any
opportunity to be heard on the issue,” Headwaters v. U.S.
Forest Serv., 399 F.3d 1047, 1055 (9th Cir. 2005), and we
decline to do so here. Our decision is further bolstered by the
fact that the district court explicitly told the parties not to


     12
        Although the parties do not make the argument, the doctrine of “law
of the case” would also appear to support continuing application of the
principle adopted by Judge Reed.
    13
       Although it is unclear, the district court may also have relied on the
similarity between the preclusive language in Paragraph XI and the Orr
Ditch decree at issue in Nevada v. United States to conclude that the
counterclaims should constitute a new action. As discussed above,
Paragraph XI does not relate to the court’s jurisdiction. Further, Nevada
is distinguishable on both form and substance. On form, Nevada is
distinct because the parties there filed their claims as a new action, under
a new caption. See Nevada, 463 U.S. at 118–19. On substance, it is
distinct because the Orr Ditch decree at issue in Nevada did not reserve
jurisdiction for the district court to “modify” the document. See United
States v. Orr Water Ditch Co., Equity No. A3 at 88 (D. Nev. 1944).
Therefore, unlike the Tribe and the United States here, the plaintiffs in
Nevada were required to bring their claims in a new action because they
had no avenue to modify the underlying decree.
28 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

brief res judicata issues, before dismissing on that ground.
We therefore reverse the district court’s decision that all of
the counterclaims were precluded. On remand, the district
court should “subject [any potential] res judicata decision to
the rigors of the adversarial process.” Nev. Emps. Ass’n v.
Keating, 903 F.2d 1223, 1225 (9th Cir. 1990).

     Furthermore, because we have concluded that the
counterclaims are not a new action, traditional claim
preclusion and issue preclusion do not apply. See Arizona v.
California, 460 U.S. 605, 619(`1983) (“[R]es judicata and
collateral estoppel do not apply . . . [where] a party moves the
rendering court in the same proceeding to correct or modify
its judgment.”). Instead, the counterclaims are “subject to the
general principles of finality and repose, absent changed
circumstances or unforeseen issues not previously litigated.”
Id.

   C. Reassignment

    The United States requests that, on remand, this case be
reassigned to a different district judge. “We reassign only in
rare and extraordinary circumstances, such as when the
district court has exhibited personal bias or when
reassignment is advisable to maintain the appearance of
justice.” Nat’l Council of La Raza v. Cegavske, 800 F.3d
1032, 1045 (9th Cir. 2015) (internal quotation marks and
citations omitted).

   To determine whether reassignment is appropriate, we
court consider:

       (1) whether the original judge would
       reasonably be expected upon remand to have
    UNITED STATES V. WALKER RIVER IRRIGATION DIST. 29

         substantial difficulty in putting out of his or
         her mind previously expressed views or
         findings determined to be erroneous or based
         on evidence that must be rejected, (2) whether
         reassignment is advisable to preserve the
         appearance of justice, and (3) whether
         reassignment would entail waste and
         duplication out of proportion to any gain in
         preserving appearance of fairness.

United States v. Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012).
“The first two of these factors are of equal importance, and a
finding of one of them would support a remand to a different
judge.” Id. (internal quotation marks omitted).

    We reluctantly conclude that reassignment is appropriate
here because we believe (1) that Judge Jones would have
substantial difficulty putting out of his mind previously
expressed views about the federal government and its
attorneys, and (2) that reassignment will preserve the
appearance of justice.14 See United States v. Estate of Hage,
810 F.3d 712, 722 (9th Cir. 2017) (holding that Judge Jones
“harbored animus toward the federal agencies” and that “the
judge’s bias and prejudgment are a matter of public record”);
Nat’l Council of La Raza, 800 F.3d at 1046; In re United
States, 791 F.3d at 958 (concluding that Judge Jones’
exclusion of federal government attorneys appeared to be


    14
       This opinion is filed concurrently with dispositions in United States
v. United States Board of Water Commissioners (Nos. 15-16316, 15-
16317, 15-16319, 15-16321, 15-16489) and United States v. Walker Lake
Working Group (No. 15-16342). Our decision to reassign this case to a
different district judge upon remand necessarily applies to all of these
related appeals, which arise out of the same case.
30 UNITED STATES V. WALKER RIVER IRRIGATION DIST.

based on his personal hostility to federal government policies
and officials).

    When Justice Department attorneys appeared in this case,
Judge Jones stated that he was “developing a policy” of
“disallowing” or “‘debarring’ U.S. Attorneys from
Washington, D.C. because of concerns about their adherence
to ‘ethical standards.’” See id. at 950. When the Justice
Department attorneys informed Judge Jones that they were
from the Boise and Denver offices, Judge Jones still denied
the attorneys’ applications to appear. Only after the United
States filed a petition for a writ of mandamus with this Court
to order Judge Jones to grant the pro hac vice admissions did
Judge Jones reverse his decision and allow the Justice
Department attorneys to appear. Id. at 951.

    Because Judge Jones’ statements are coupled with his
unprecedented sua sponte dismissal of the United States’
counterclaims, we conclude that reassignment is necessary.
In a prior case, the Ninth Circuit also relied on Judge Jones’
sua sponte rulings to support a decision to reassign. See Nat’l
Council of La Raza, 800 F.3d 1046 (noting two sua sponte
rulings against out-of-state attorneys in deciding to reassign
the case to another judge on remand). Here, even after
admitting the government attorneys, Judge Jones
demonstrated his unwillingness to consider fairly the United
States’ interests in this case by making the unprecedented
decision to sua sponte dismiss the counterclaims on res
judicata grounds, after ordering counsel not to brief the issue.
For these reasons we conclude that Judge Jones would have
substantial difficulty in fairly considering the United States’
counterclaims on remand. These facts also support
reassigning the case to a different judge in order to preserve
the appearance of justice.
      UNITED STATES V. WALKER RIVER IRRIGATION DIST. 31

    While we appreciate that the United States’ and the
Tribe’s counterclaim proceeding is only a “sub-file” of this
long-running case, it is nonetheless an integral part of the
Walker River Basin Water Rights litigation and cannot be
separated from it.15 To be clear, therefore, this reassignment
order applies to all aspects of the Walker River Basin water
rights case pending in the District of Nevada.

IV.        Conclusion

    While the district court was correct that it retained
jurisdiction to modify the Decree, the district court erred in
characterizing the counterclaims as part of a new action and
then sua sponte dismissing them on res judicata grounds. We
therefore reverse the order of the district court and remand for
further proceedings consistent with this opinion. On remand,
the case shall be randomly reassigned to a different district
judge.

      REVERSED, REMANDED and REASSIGNED.




      15
       This is attested to by Judge Jones’ order that all 3,280 claimants to
Walker River Basin water rights be served with summons and the United
States’ counterclaims in this sub-file proceeding. See footnote 7, supra,
and accompanying text.
