                                                               FILED
                  UNITED STATES COURT OF APPEALS                 JUL 01 2010

                                                           MOLLY C. DWYER, CLERK
                          FOR THE NINTH CIRCUIT              U.S . CO UR T OF AP PE A LS




UNITED STATES OF AMERICA,                No. 08-16767

           Plaintiff,                    D.C. No. 3:73-cv-00203-LDG
                                         District of Nevada,
 and                                     Reno

PYRAMID LAKE PAIUTE TRIBE OF
INDIANS,                                 ORDER WITHDRAWING
                                         MEMORANDUM DISPOSITION
           Petitioner - Appellant,       AND DENYING PETITION FOR
                                         REHEARING
  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.



Before: HALL, W. FLETCHER and PAEZ, Circuit Judges.
      The memorandum disposition filed April 7, 2010 is withdrawn. A

superseding memorandum disposition is being filed concurrently with this order.

      The panel has voted to deny the petition for panel rehearing.

      Appellant's motion to alter or amend is denied as moot. Appellees' petition

for panel rehearing is denied.

      Subsequent petitions for rehearing or rehearing en banc may be filed.




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                                                                           FILED
                           NOT FOR PUBLICATION                               JUL 01 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 08-16767

             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 similar to those we decided in United

States v. Orr Water Ditch Co., No. 07-17001.

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

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

Basin'). The Pyramid Laµe Paiute Tribe of Indians ('the Tribe') opposed many of

the applications. As with the Trucµee Basin 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 Orr Ditch

Decree 'by depleting flows in the Carson River and thereby reducing inflows to

the Lahontan Reservoir to the detriment of senior water right holders in the

Newlands Project who are entitled to divert Trucµee River water to maµe up for

insufficient Carson River flows, which would impact Pyramid Laµe and its

fishery.'




                                          2
      The State Engineer ruled against the Tribe. The Engineer noted that 'the

Tribe is not a senior water-right holder on the Carson River and does not have any

existing decreed right to Carson River surface water.' The Tribe, however, had

relied in its challenge not on any right to Carson River water, but on the potential

downstream impact of the allocations on the Tribe's decreed rights to the Trucµee

River. Inter alia, the Engineer ruled that the Tribe's decreed water rights under

Claims No. 1 and 2 would not be impacted by allocations of groundwater in the

Dayton Valley.

      The Tribe appealed the Engineer's ruling to the federal district court. The

Tribe contended there was federal court jurisdiction over an appeal of the

Engineer's ruling because the district court had exclusive jurisdiction over the

surface waters of the Carson River under the Alpine Decree.

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

Tribe's appeal. In light of our opinion in United States v. Orr Water Ditch Co.,

No. 07-17001, we vacate and remand the district court's decision in this case for

further proceedings consistent with that decision. Consistent with our holding in

Orr Water Ditch, subject matter jurisdiction exists over the Tribe's appeal from the

State Engineer's Ruling 5823 only insofar as the allocation of Dayton Valley




                                           3
Hydrographic Basin groundwater rights is plausibly alleged to affect adversely the

Tribe's decreed water rights under the Orr Ditch Decree.

      VACATED and REMANDED.




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