and Submitted August 30, 2017 Pasadena, California
from the United States District Court for the District of
Nevada D.C. No. CV 73-0127 RCJ Subproceeding: C-125-B Robert
Clive Jones, District Judge, Presiding
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
Williams Jr. (argued) Schurz, Nevada, for
H. DePaoli (argued) and Dale E. Ferguson, Woodburn &
Wedge, Reno, Nevada, for Defendant-Appellee Walker River
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.
Before: A. Wallace Tashima, Raymond C. Fisher, and Jay S.
Bybee, Circuit Judges.
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.
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 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
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.
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.
TASHIMA, Circuit Judge:
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.
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 Jones 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 United States' counterclaims
on res judicata or jurisdictional grounds. The Tribe
and the United States appeal.
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.
Facts and Procedural Background
The Walker River and the Reservation
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.
First Federal Proceeding
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); 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.
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).
The 1924 Federal Proceeding
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
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.
The 1936 Decree
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 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
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 ...