Appeals court rules against Indian agency

Thursday, July 11, 2002 | 8:49 a.m.

SUN CAPITAL BUREAU

CARSON CITY -- A federal appeals court ruled Wednesday the Bureau of Indian Affairs could be sued for failing to maintain an irrigation system that backed up water onto land owned by a Nye County ranching family, which said it suffered about $346,000 in damages.

The 9th U.S. Circuit Court of Appeals overturned the decision of U.S. District Judge Philip Pro of Las Vegas, who held the government was immune from suit under the Federal Tort Claims Act.

The appeals court, in a ruling written by Judge Barry Silverman, said the Bureau of Indian Affairs' decision to spend its limited funds on projects other than the irrigation system did not insulate it from legal action.

Bartley H. and Lilly E. O'Toole raise livestock and hay on an 800-acre ranch in Nye County. Its water comes from the Reese River and the irrigation system. Downstream is the Yomba Shoshone Reservation, which is held in trust for the tribe by the BIA.

The O'Tooles maintained the agency did periodic maintenance work on the system until 1983. After that there was virtually no maintenance done. In 1988 the irrigation system backed up, flooding the O'Toole property, causing damage in lost crops and sediment removal.

In their suit the O'Tooles say the government paid the tribe $300,000 to do regular maintenance that was never performed, despite the couple's repeated warnings.

The Bureau of Indian Affairs said it didn't have the money to repair the irrigation system, which was repeatedly damaged by heavy flooding. It had to choose which maintenance projects to take care of on the reservation.

Pro had agreed with the BIA's argument that it was shielded from the claim because it was a discretionary action.

The circuit court ruled, however, "We hold that the BIA's decision to spend its limited funds in other ways, allowing the irrigation system to fall into disrepair, is not protected by the federal immunity law.

Silverman said the BIA's decision to forgo routine maintenance is not the kind of policy judgment protected under the federal law. The maintenance is expected of any other landowner, the court said.

The case, unless appealed further, returns to U.S. District Court in Las Vegas for further proceeding.