Appeals court rules state court has jurisdiction in Indian water dispute

Tuesday, July 29, 2003 | 9:14 a.m.

CARSON CITY -- A federal appeals court ruled Monday that the state district court in Pershing County has jurisdiction over a case in which an Indian tribe arrested a state water commissioner on tribal land.

The 9th U.S. Circuit Court of Appeals rejected the claim of the U.S. Government and the South Fork Band of the Te-Moak Tribe of the Western Shoshone Indians that the federal district court in Reno was the only proper venue for the case.

Judge Alex Kozinski, who wrote the decision, said this case "took on a surreal quality as the state and federal courts enjoined each other from conducting further proceedings" during the dispute over which had jurisdiction.

Senior U.S. District Judge Edward Reed Jr. had ruled that both the state and federal courts had jurisdiction.

Appeals were started by all parties, including the tribe, the government, the state engineer, the Pershing County Water Conservation District and District Judge Richard Wagner of Pershing County.

The 9th Circuit Court agreed with the state's position that the dispute should be in Wagner's court, which had entered the original water rights decree on the Humboldt River.

The dispute started after the federal government purchased five ranches with water rights on the Humboldt River to create an Indian reservation. The prior river decree requires all parties to pay for the salaries of the commissioners who regulate the flow of the river.

The tribe refused to pay its assessments and refused to allow the water commissioner to go across the land to adjust diversions of the water. The tribe in 1998 enacted a resolution that one of its members would adjust the diversion, not the state.

In September 1998 Supervising Water Commissioner Wayne Testolin and two other commissioners entered the reservation but were arrested by tribal Chairman Marvin McDade. The commissioners were never prosecuted.

Wagner found McDade in contempt for preventing the water commissioners, who are officers of the court, from enforcing the decree.

The federal government and the tribe sought to remove the case to the federal district court in Reno.

The 9th Circuit Court said it was deciding only the jurisdictional issue.