This is a response to part 4 of Battle Born Media’s (BBM) of a 6-part series in which they through their “reporter” Barbara Ellestad, attempt to blame. BBM originally scheduled five parts. Now they have added a 6th part to discredit individuals who support Wolf Creek. We will write to those acquisitions when they appear.
In part one BBM “reporter” Barbara Ellestad grossly misrepresented the May 2018 lawsuit filed by Paradise Canyon, LLC, owner the Wolf Creek golf club against the Valley Water District (VVWD).
In Part 2, Ellestad twisted the facts in a 2011 lease agreement between the two parties as she tries to defend the VVWD.
In part 3, she continues to take selective comments from a deposition taken by Virgin Valley Water District attorney Jedediah (Bo) Bingham involving Cory Clemetson, a partner with his brother in Paradise Canyon as if that confrontation somehow proves that the case lacks merit. Also, in Part 3, Ellestad attempted but failed to make the point that the VVWD could claw back alleged unused water from Wolf Creek and lease that potion to the Nevada Water Authority (SNWA).
In part 4, Ellestad returns to her theme that the Virgin Valley Water Board (VVWB) has sole discretion to set water rates and again uses selective wording from the Bingham-Clemetson deposition.
She reports that Bingham and Clemetson discussed a clause in an estoppel agreement. That clause gives Clemetson a perpetual “Right of First Refusal” for irrigation shares on a perpetual basis. The clause also includes a provision allowing the water board absolute power to determine share rates if there is a violation of the contract.
It is understandable, but not excusable that the elected VVWB lack any understanding of how they are required to act under the U.S. Constitution and Nevada regulations when establishing, among other things, water rates. Nonetheless, Bingham, as an attorney, should know the process.
Maybe Bingham was absent from law class when the due process clause of the U.S. Constitution was discussed. That clause states that no person shall be “deprived of life, liberty, or property without due process of law.“ Maybe he doesn’t know that its Nevada’s Administrative Procedures Act (APA) protects people’s rights under the due process clause from arbitrary and capricious regulatory actions by state agencies.
Had Bingham insisted, as he should have, that water district elected officials comply with the constitution by following the administrative rule making procedures as outlined by the Nevada Attorney General the entire lawsuit could potentially have been avoided? But Attorneys make money by going to court not simply asking elected officials to comply with the U.S. Constitution and regulatory procedures.
No-one doubts that the Water Board has the authority to set rates. That is not the issue. It is the arbitrary and capricious nature of that task, and other actions, that is questioned.
Setting those rates in compliance with the Administrative Procedures Act ensures that the due process clause of the U.S. constitutional is honored and respected. In a nutshell following that process: 1) removes uncertainty or ambiguity in rate setting process, 2) It provides an opportunity for public input and requires cooperation from elected officials, and 3) it requires public hearings and the consideration of comments.
The APA requires that Bingham and the water board represent the public by considering the economic burden upon small (or any) business. [[i]] If the regulations have an impact, the Board must: 1) “Insofar as practicable, consult with owners and officers of small businesses that are likely to be affected by the proposed regulation,” (2) “Conduct or cause to be conducted an analysis of the likely impact of the proposed regulation on small businesses,” (3) “Consider methods to reduce the impact of the proposed regulation on small businesses, “and (4) “Prepare a small business impact statement and make copies of the statement available to the public. Further, the agency must deliver a copy of the proposed rule to the Legislative Counsel for review. (NRS 233B.060; NRS 233B.063).
None of these constitutionally required processes matters to Bingham or the board for one simple reason: money. You see, Bingham and the board think that their brethren who hold virtually worthless unused water shares should profit from those shares and that should supersede the public trust. Let along with anything as mundane as the constitution, or regulatory law.
Their position was clearly pointed out when on August 6th, the VVWB raised the lease rate of Bunkerville Irrigation Company (BIC) irrigation water held by the Board and leased to Bunker Farms from its original $250 per share to $1,357 per share.
That increase in price is consistent with the historical practice of the board to put tens of millions of dollars into the hands of Virgin River water shareholders who obtained free river water appropriations from the ancestors to irrigate their free land. That practice intentionally distorted the actual value of the river water to the consumer. It artificially inflated the price of irrigation water and was the background for the rate paid by the Southern Nevada Water Authority (SNWA) for Virgin and Muddy River water shares
To date, the descendants, and a few others of the original pioneers have earned a total of $70,158,488.85. They received $57,998,817.99 from SNWA and another $12,159,670.86 from the VVWD for fallowing their land and sitting back and watching the water flow freely down the river while their bank accounts grow.
For more information on pricing see the five part series: VVWB Irrigation Water Pricing
[i] A small business is defined as a business conducted for profit that employs fewer than 150 full-time or part-time employees. NRS 233B.0382.