[T]he water of all sources of water supply within the boundaries of the state whether above or beneath the surface of the ground, belongs to the public." Currently, the Nevada statutes on water are found in NEV. REV. STAT. (NRS) Title 48. Authors note: Nevada-today is following three cases dealing with the allocation and distribution of water in Nevada. 1. In Las Vegas, Judge Timothy C. Williams, of the Eighth Judicial Court, is dealing with allegations of bad faith and arbitrary and capricious dealings by the Virgin Valley Water Board (VVWB) of Mesquite in setting rate. 2. The Nevada Supreme Court is considering if water rights adjudications are consistent with Nevada's 'Public Trust" doctrine. 3. The issue of perennial yield vs. sustainability is moving forward to a Nevada District Court and potentially the Nevada Supreme Court.
On Tuesday, September 18th, the Virgin Valley Water Board (VVWB) will consider joining the Walker River Irrigation District in a legal argument involving Nevada's Miner County and the Walker Lake Working Groups. Specifically, the VVWB will consider supporting the Irrigation District "to protect" the Virgin Valley Water "Districts water rights and interests," against considering the public interest advanced by Miner County and the Walker Lake Working Groups when making water decisions. In fact the water board wants to protect shareholders of the Mesquite and Bunkerville Irrigation Companies (which includes the VVWB) from considering the public trust doctrine when making decisions about adjudicated water shares. To better understand what the VVWB means by the public interest consider reading "VVWB Irrigation Water Pricing 2018 (1 thru 5)
On August 30, The Nevada Supreme Court authorized California attorney Roderick E. Walston to associate with Lyon County in an appeal from The United States Court of Appeals for the Ninth Circuit to Nevada Supreme Court to rule on a water rights question:
Walston specializes in environmental, natural resource and water law litigation.
The question before the Nevada Supreme Court:
“Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent”?
The Walker River Basin covers about 4000 square miles, running northeast from its origins in the Sierra Nevada Mountains in California before turning south and ultimately flowing into Walker Lake in Nevada. The first quarter of the basin lies in California, and California accounts for most of the precipitation and surface water flow into the basin. Most of the water is consumed across the border in Nevada.
Walker Lake is about 13 miles long, five miles wide and 90 feet deep. Its size and volume have shrunk significantly since they were first measured in 1882. By 1996, Walker Lake had retained just 50 percent of its 1882 surface area and 28 percent of its 1882 volume. Today’s Walker Lake also suffers from high concentrations of total dissolved solids (“TDS”) – meaning it has a high salt content, low oxygen content and a high temperature.
Although the parties dispute the cause of Walker Lake’s troubles, it seems clear that upstream appropriations play at least some part, together with declining precipitation levels and natural lake recession over time.
Since 1902, people and groups have argued over water rights in the Walker Basin and the impact on Walker Lake. The 1902 cases ended I n 1919.
Five years later, the United States brought an action in Nevada federal court, seeking to establish the water rights of the Walker Lake Paiute Tribe. After 12 more years of litigation – bringing us to 1936 – that proceeding resulted in the Walker River Decree.
The Walker River Decree adjudicated the water rights of hundreds of claimants under the doctrine of prior appropriation.[i]
In 1987, the Paiute Tribe intervened in the Walker River litigation to establish procedures for reallocating water rights under the Decree. Since then, the Nevada State Engineer reviews all applications to change following Nevada’s prior appropriation law, which has largely been codified, governs the Engineer’s decisions and the district court’s review. The public trust doctrine is ignored.
In 1991, the Paiute Tribe and the United States sought recognition of the Tribe’s right to a certain additional amount of water from the Walker River, under a principle that Native American tribes have superior water rights based on their relationship to the federal government. That case is pending before the Ninth Circuit.[ii]
Mineral County’s Intervention
In 1994, Mineral County intervened in the Decree litigation seeking the Ninth Circuit Court to recognize “that Lake is . . . required under the doctrine of maintenance of the public trust.”[iii] The complaint alleges that “Activities and businesses attributable to the presence and use of Walker Lake represent about 50% of the economy of Mineral County.” The district court granted the motion in 2013.
The complaint asks the Decree court, [to] reopen and modify the final Decree to recognize the rights of Mineral County to take a minimum of 127,000 acres/feet of water per year to maintain the viability of Walker Lake.”
In 2015, the district court dismissed the amended complaint in intervention holding that Mineral County lacked standing to assert its public trust claim. Because it did not assert any of its own interests, only those of its citizens – and that a county cannot sue as parens patriae.
Nonetheless, the court did address the public trust claim. It concluded the public trust doctrine may factor into future allocations of water, but that using the doctrine to reallocate rights already adjudicated under the Decree would constitute a taking and require just compensation.
However, the court concluded it lacked authority to order Nevada to effectuate such a taking.
Mineral County timely appealed arguing that the district court erred in dismissing the amended complaint in intervention for lack of standing.
The issue before the Ninth Circuit Court:
Can the Walker River Decree be amended to allow for certain minimum flows of water to reach Walker Lake?
That depends on whether the public trust doctrine applies to rights previously adjudicated and settled under the doctrine of prior appropriation and permits alteration of prior allocations.
That issue is held in abeyance pending the result of Nevada Supreme Court decision. [iv]
The Public Trust Doctrine
Mineral County et al. contends that:
The public trust doctrine in Nevada appears to be beyond debate.
The Nevada Supreme court has recognized that while public ownership of water is the most fundamental tenet of Nevada water law, those holding vested water rights do not own or acquire title to water, but merely enjoy a right to the beneficial use of the water.
If the current law governing the water engineer does not clearly direct the engineer to continuously consider the public’s interest in Nevada’s natural water resources, then the law is deficient.
Mineral County argues that the public trust doctrine requires the State Engineer to reconsider previous allocations and, in doing so, to reserve a specified minimum flow for Walker Lake regardless of any other rights or considerations.
Lyon County et al and the Nevada State Water Engineer contends that:
Lyon County supports the conclusion that Nevada considers water rights settled by decree “vested,” and “settled “and “conclusive,” id. § 533.210, and the Nevada State Engineer – charged with administering Nevada’s statutory water law – may neither “carry out his or her duties . . . in a manner that conflicts with any . . . decree or order issued by a state or federal court,” id. § 533.0245, nor authorize any change in water use that “is inconsistent with any applicable federal or state decree,” id. § 533.3703.
There is. Moreover, significant authority stressing the importance of finality in the adjudication of water rights
The doctrine of prior appropriation . . . is itself largely a product of the compelling need for certainty in the holding and use of water rights.”).
Mineral County et al objects
Mineral County and their supporters argue that vested, settled and conclusive law does not explain why the public trust doctrine must completely yield to the doctrine of prior appropriation (or, more precisely, to the decrees resulting from adjudications under the prior appropriation doctrine and Nevada’s statutory water law).
It is not clear that the principles of finality compel Nevada to conclude that rights already adjudicated are exempt from the public trust.
There is significant authority suggesting rights already adjudicated may not be always and forever exempt from the public trust. For example, the Nevada Supreme Court has held:
the most fundamental tenet of Nevada water law [is that] “the water of all sources of water supply within the boundaries of the state whether above or beneath the surface of the ground, belongs to the public.” Indeed, even those holding certificated, vested, or perfected water rights do not own or acquire title to water.
This case brings together for the first time two systems of legal thought: 1) rights under prior appropriations 2) the public trust. Can the two coexist?
[i] Under the doctrine of prior appropriation, “[t]he first appropriator of the water of a stream passing through the public lands . . . has the right to insist that the water shall be subject to his use and enjoyment to the extent of his original appropriation, and that its quality shall not be impaired so as to defeat the purpose of its appropriation.” Lobdell v. Simpson, 2 Nev. 274, 277–78 (1866) (quoting Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 153–54 (1858)).
[ii] See United States v. Walker River Irrigation Dist., No. 15-16478.
[iii] Under the public trust doctrine, states hold navigable waterways within their borders in trust for the good of the public. See Lawrence v. Clark County, 254 P.3d 606, 607 (Nev. 2011); see also Mineral County,
20 P.3d at 807 (Rose, J., concurring) (“In its most fundamental terms, the public trust doctrine provides that . . . all a state’s navigable waterways are held in trust by the state for the benefit of the people and that a state official’s control of those waters is forever subject to that trust.”).
[iv] The Nevada Supreme Court expressly recognized the public trust doctrine under Nevada law in Lawrence v. Clark County, 254 P.3d 606 (Nev. 2011).