STATE OF NEVADA OFFICE OF THE ATTORNEY GENERAL 100 North Carson Street Carson City, Nevada 89701-4717

CATHERINE CORTEZ MASTO KEITH G. MUNRO Attorney General Assistant Attorney General

GREGORY M. SMITH Chief of Staff

#17 G M E M O R A N D U M

DATE: September 6, 2012

TO: Kenneth E. Mayer, Director Nevada Department of Wildlife

FROM: Nhu Q. Nguyen, Senior Deputy Attorney General

SUBJECT: Litigation Update ======1. U.S. and Walker River Paiute Tribe v. Walker River Irrigation Dist., et al. (Walker River Litigation), (USDC, Reno). This action involves federal, tribal and Mineral County claims for additional water from Walker River, in addition to those already established by the Walker River Decree. Confidential settlement discussions have ended and litigation strategies are being developed. Recently, the Tribe initiated and is pursuing additional confidential settlement discussions.

2. E. Wayne Hage v. United States, (Federal Circuit, DC). Hage alleged, among other things, that the United States affected a taking of his private property when it allowed the release of elk on public lands. Hage alleged the release of elk reduced the available forage and water for his cattle. The trial was held in Reno from May 3–21, 2004. NDOW sought to intervene as a defendant in the lawsuit, but was denied by the Claims Court. The Claims Court, however, granted NDOW amicus status and NDOW filed a brief in support of the United States in the Claims Court. The Claims Court entered a final ruling on August 4, 2010, against the U.S and awarded Hage $4,372,355.20 for his takings claims. The United States appealed to the Federal Circuit. NDOW filed an amicus brief in support of the United States with the Federal Circuit on February 14, 2011. Oral argument was held on April 3, 2012. On July 26, 2012, the Federal Circuit issued a decision

Telephone 775-684-1100 ● Fax 775-684-1103 ● www.ag.state.nv.us ● E-mail [email protected] Kenneth Mayer, Director September 6, 2012

reversing the findings by the Claims Court that Hage was entitled to any compensation for his takings claims, and vacated the award of damages.

3. United States v. State Engineer, et al. (Carson Lake & Pasture Change Applications) (9th Circuit, San Francisco). NDOW’s application to change the place of use of water to the Carson Lake and Pasture at the full duty of 3.50 afa was protested by the Pyramid Lake Paiute Tribe of Indians (“PLPT”). The PLPT protested on the basis that water applied to the wetlands was not an irrigation use of the water. The State Engineer held a hearing on November 14–15, 2006, and issued his decision overruling PLPT’s protest. The district court reversed the State Engineer’s decision, holding among other things that, irrigation is for cash crops only under the Alpine Decree. NDOW appealed to the Ninth Circuit. Briefing was competed with the filing of NDOW’s reply brief on August 29, 2012.

4. United States, et al v. Truckee-Carson Irrigation District, et al. (9th Circuit, San Francisco). An appeal of a judgment against the TCID for excess diversions of water. NDOW appealed to protect its water rights and interests. Briefing is in progress.

5. Russell H. Elms v. Christopher W. Lacey, et al. (2nd JD, Washoe County). Plaintiff alleges that NDOW wrongfully confiscated the head or antlers of an animal that belonged to Plaintiff and requests that they be returned to him. The Answer was filed on August 12, 2010. On October 8, 2010, the Court dismissed three of the four counts contained in the Complaint.

6. Brian Christie v. State NDOW, et al. (Justice Court, Reno). Plaintiff alleges that NDOW committed trespass to chattle; breach of contract; and violated 42 USC § 1983 in seizing his property. Court appearances were made on August 23, 2012; however, due to the judge’s unavailability, trial is tentatively rescheduled to early November.

7. The Cloud Foundation, et al. v. Salazar, et al. (USDC, Reno). Plaintiffs allege, among other things, that the BLM’s gather and removal of excess horses violate federal law. The Court granted NDOW’s motion to intervene and the parties are briefing this matter for the Court.

8. Gutierrez, et al. v. Chris Roy Cheff, et al. (8th JD, Las Vegas). Tort action against NDOW for damages arising out of an automobile accident involving an ex-employee. The parties are in discovery and held a mandatory meeting in Las Vegas on July 6, 2012.

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