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1641ROBERT D. STITS ER, LTD. ATTORNEY AT LAW 755 FOREST STREET RENO, NEVADA 89509 TELEPHONE (702) 323.1352 August 2, 1978 Division of Water Rights State Water Resources Control Board 77 Cadillac Drive Sacramento, California 95825 Dear Mr. Rosenberger: Reference is hereby made to the above application. This letter will serve as a formal protest by the Pyramid Lake Paiute Tribe to, such application upon the following grounds: 1. The granting of the application will allow the applicant to perfect his diversion of water under Permit 13529 On information and belief from California State officials, California's share of any water of the Truckee watershed to which it may be entitled relative to the California - Nevada Compact has already been over -appropriated. The amount under the Compact has never been confirmed by the U. S. Congress and even this amount is subject to the claims of the Pyramid Lake Paiute Tribe. United States v. California and Nevada, 93 S.Ct. 2763 (June 11, 1973). 2. The United States of America is now conducting litigation on behalf of the Pyramid Lake Paiute Tribe to quiet the Tribe's claims to water on. the Nevada side of the Truckee watershed. United States of America v. Truckee -Carson Irrigation District, State of Nevada, et al, (No. R-2987 U.S. Dist. Ct., Nevada) 3 If the Pyramid Lake Paiute Tribe does not secure adequate relief as a result of the Federal District Court suit in Nevada, above, it will seek supplementary relief from those claiming water on the California side of the Truckee water- shed. The Tribe claims use to the water of the Truckee -1- . Exhibit A watershed dating from November 29, 1859. On information and belief, there are few water right claimants in Cali- fornia who can claim use of Truckee watershed water prior to the Tribe's claims. Therefore, allowing thi=: applicant to perfect his requested water diversion shall only exac- erbate an already over -appropriated and contentious situ- ation in the Truckee watershed. 4. There is no unappropriated water remaining in the Truckee River Basin, rather the water in the Truckee. River Basin has been over appropriated pursuant to the Winters Doctrine granting Indian tribes sufficient water to maintain a viable economy on their Indian reservations from appurtenant waters, in this case the Truckee River, and the Pyramid Lake Paiute Tribe located at the Pyramid Lake Paiute Indian Reservation at the end of the Truckee River. Winters v. United States, 207 U.S. 564 (1908). Further, you will note .that pursuant to the various decrees that have purportedly appropriated water from the Truckee River Basin including Lake Tahoe that there has been appropriated more than twice as much water as the watershed develops. See United States' v. Orr Water Ditch Co., No. 83 (D. Nevada 194.4). and other related decrees. 5. The Board lacks jurisdiction to determine the reserved Win- ters Doctrine Water Rights of the protestant vis-a-vis the applicant. The reserved water rights claimed by the Pyramid Lake Paiute Tribe, to maintain Pyramid Lake and the lower "Truckee River so as to restore the Tribe's natural fishery and maintain a viable economy on the Tribe's Reservation are the creature of Federal law rather than State law, which Fed- eral,law is pre-emptive over conflicting State adjudications of water rights. Therefore, the Board cannot make a determi- nation which would be res judicata to the Tribe's claims and the applicant would take his permit subject to such claims. In reliance on the State, he may erect certain improvements based on his State permit for which the State may be liable to him for detrimental reliance should the Tribe perfect by adverse decree its claims to Truckee watershed water: Winters v. United States,.207 U.S. 564 (1908); Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918); Arizona v. California, 373 U.S. 564 (1963); United States v. District Court in and for the County of Eagle, Colorado, 401 U.S. 520 (1971) and, United States v. Cappaert, 96 Sup. Ct. 2062 U.S. (1976) . s • 6. Granting any more applications for any reason to allow ap- propriation of water in the upper Truckee and Lake Tahoe watershed induces destruction of that fragile environment. The Board can take judicial notice of the environmental crisis that population growth has brought to the Lake Tahoe - Upper Truckee River area to which this application relates. A very effective way to curb the increasing despoilation of the environment there is to begin cutting off the water to feed such destructive population growth. This ,is being done in other forward-looking areas by not granting such applications. The protestant, the Pyramid Lake Paiute Tribe, would suffer irreparable injury from the approval of the above application since every drop of water taken out of the Truckee watershed upstream from the Tribe's reservation causes a corresponding drop in the Tribe's lake which renders it unstable and too saline for development to provide the Tribe with the proper economy to which it is entitled pursuant to Federal law. 7 The basis of the Pyramid Lake Paiute Tribe's water rights is the Winters Doctrine as articulated by the United States Supreme Court in the case of Winters v. United States, 207 U.S. 564 (190.8); and other methods of making a viable econ- omy by Indians, such as fishing which would be applicable to the 'Pyramid Lake Paiute Tribe. Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918). The Pyramid Lake Paiute Reservation was established November 29, 1859. From time immemorial and before the white man came to this ° country the Pyramid Lake Paiute Tribe used all of the waters developed in the Truckee River watershed including Lake.Tahoe to provide a fishery to feed all the Indians of northern Nevada and California. .Since the coming of the white man in the late 19th century waters developed in the Truckee River watershed have been illegally diverted away from the Tribe despite the Winters Doctrine; and this unlawful di- version has resulted in substantial injury to the economy of the Pyramid Lake Tribe, namely, the said fishery. How- ever, it has been demonstrated recently that the fishery can be revived if the Indians are allowed to have at least 385,000 acre feet of water per year from the Truckee River watershed to maintain their lake. Further, their fishery economy could be supplemented by a recreation economy which the United States Government, Department of Interior, Bureau of Outdoor Recreation says has the.highest recreation poten- tial of any lake in northern Nevada and California, 1968 Report of. the Bureau of Outdoor Recreation, page 14. The destitution of the Indians and the destruction of Pyramid Lake can be reversed if the cancerous upstream growth is stopped now. -3- • • Therefore, denying this application would be consistent with pre- servation of the Truckee Basin environment and protection of the rights of its citizens: granting it•would not. Because of the above points and authorities, it reasonably appears an.environmental impact statement pursuant to California law must be prepared and hearings held prior to any administrative decision on this matter. Next, the Pyramid Lake Paiute Tribe herein puts the Applicant on notice of the decision of the United States Supreme Court, namely, United States v. Cappaert and Nevada, 96 Sup. Ct. 2062 (1976), which holds that even if a water permit is granted by a state agency, if it is found later that the exercise of that permit interferes with Federal reserved water rights used for the preservation of en- dangered species, even though such Federal reserved rights are not perfected by decree or state permit, that the state permitted water to private parties shall be cut off so that the Federal reserved water rights shall be fulfilled. Also, the Cappaert decision clearly stands for the proposition that the equitable doctrine of balancing the hardships shall not be applied to diminish the needed Federal reserved water sufficient to preserve and maintain the endangered species. (In the Cappaert case, the private permitted water right holder had spent some seven million dollars on improvements). Please see also the policy of the State Water Resources Control. Board, Notice to Water Users in the Lake Tahoe and Truckee River Basins, dated July 15, 1976. The Tribe is claiming approximately 385,000 acre feet on an average each year from the Truckee River to maintain the viability of Pyramid Lake and various flow rates at certain times of the year in certain portions of the Truckee River all to maintain a viable natural fish- ery. The fishery claims are for an 1859 priority. Cordially yours, RDS:ht Robert D. Stitser, Ltd. Attorney for the Pyramid Lake Paiute Tribe CERTIFIED MAIL NO. 504779, RETURN RECEIPT REQUESTED.