                           NOT FOR PUBLICATION

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

                                                                        MO LLY C. DW YER, CLERK
                                                                         U .S. C O U R T O F APPEALS

UNITED STATES OF AMERICA,                        No. 07-17021

              Plaintiff,                         D.C. No. CV-73-00018-LDG

  and
                                                 MEMORANDUM *
TAHOE RENO COMMERCIAL
CENTER, LLC,

              Petitioner - Appellant,

  v.

ORR WATER DITCH CO.,

              Defendant,

  and

NEVADA STATE ENGINEER,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                         Argued and Submitted July 15, 2009
                              San Francisco, California

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

       Appellant Tahoe Reno Commercial Center, LLC (“TRCC”) appeals the

dismissal of its appeal of Nevada State Engineer Ruling 5747 for lack of subject

matter jurisdiction. In a separate disposition filed today, we reverse and remand

the district court’s decision dismissing, for lack of subject matter jurisdiction, an

appeal of the same ruling by the Pyramid Lake Paiute Tribe of Indians. United

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

       TRCC complains that the State Engineer’s ruling, inter alia, failed to grant

TRCC’s applications for water permits to which it was allegedly entitled. TRCC

represents that it has separately appealed the State Engineer’s ruling in state court,

that it does not seek to have a federal court adjudicate its appeal, and that it filed its

appeal in federal court only as a protective measure.

       TRCC has not alleged that the grant or denial of water rights to it would

have an effect on any party’s rights under the Orr Ditch Decree. Thus, the district

court does not have jurisdiction over an appeal of the part of the State Engineer’s

ruling adjudicating TRCC’s applications. As we explain in our published opinion,

“To the extent that groundwater may be allocated consistent with protection of the



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Tribe’s decreed rights, the amount of the allocations and distribution among the

applicants are of no concern to the district court.” United States v. Orr Water

Ditch Co., No. 07-17001, ms 17. We therefore affirm the district court’s dismissal

of TRCC’s appeal for lack of subject matter jurisdiction and leave TRCC to pursue

its remedies in state court.

      AFFIRMED.




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