POSTJUDGMENT “WATER INTEREST”: LIFTING THE HEADGATE TO LET APPROPRIATE COMPENSATION FLOW FOR UNLAWFUL DIVERSIONS
Irrigators overdraw many Western streams to the detriment of tribal and environmental uses; these conflicting interests regularly battle in state and federal court over water allocation. This article profiles United States v. Bell (Bell) —the latest such skirmish among warring parties in the Truckee and Carson River basins of northern Nevada. In Bell, the United States Court of Appeals for the Ninth Circuit faced persistent excessive irrigation diversions by the Truckee Carson Irrigation District (TCID) in violation of applicable federal court decrees, administrative Operating Criteria and Procedures (OCAPs), and the Congressional Settlement Act of 1990. The Court discussed an unprecedented remedy—“water interest”—in order to fully compensate the Pyramid Lake Paiute Tribe of the Pyramid Lake Indian Reservation for injuries caused by TCID’s unlawful diversions. The United States District Court for the District of Nevada had awarded water interest, and rather than dismiss the novel remedy out of hand, the Ninth Circuit remanded the issue to the District Court to explain the basis in law or equity for awarding water interest. This article provides a synopsis of the decades of litigation giving rise to Bell, an analysis of the decision itself, and an evaluation of the authority supporting the District Court’s unusual award of postjudgment water interest. The article concludes that, taken together, common principles controlling an award of interest, the statutory water recoupment scheme, and United States Supreme Court precedent authorize this novel remedy. Moreover, such relief is necessary to fully compensate for the opportunity cost of lost water and in light of TCID’s dogged opposition to federal law, to dissuade TCID from further procrastinating in its water repayment obligation.
Jeffrey T. Matson, Postjudgment "Water Interest": Lifting the Headgate to Let Appropriate Compensation Flow for Unlawful Diversions, 15 U. Denv. Water L. Rev. 135 (2011), available at http://works.bepress.com/jeffrey_matson/1.