Public Costs Rise as Losses Rocket in Nevada Water Case

Picture above: Virgin Valley Water Board from left to right Kevin Brown, manager, Bo Bingham, attorney and Rich Bowler, Board Member, 2018 Photo by Andrew Davey

Las Vegas, NV. It is 5 to zero against Virgin Valley Water Board (VVWB) attorney Jedediah (Bo) Bingham in a never-ending saga of seemingly frivolous legal motions filed by him at taxpayer expense in a three-year-six-month-old water pricing case.

In the original civil action, the owners of Paradise Canyon (DBA The Wolf Creek Golf Club) want a jury to determine if the VVWB violated the covenant of good faith and fair dealing inherent in contract law by increasing their irrigation lease rates by 500%.

To avoid dealing with the price increase issue alone, Bingham launched extensive and expensive motions attempting to establish that the owners of Paradise Canyon violated their contract with the VVWB through a series of actions or inactions.

Weeks ago, Bingham talked for about  9 hours rambling over 496 PowerPoint slides trying to convince Las Vegas District Court Judge Timothy Williams that the owners of Paradise Canyon must prove the beneficial use [i] of the irrigation water leased to them by the VVWB

Not so, the Judge said yesterday. “It is not a breach of the lease by failing to establish beneficial use or refusing to amend the Lease to divest itself of all or portions of leased irrigations shares,” he ruled.

Bingham knew that the Mesquite Irrigation Company (MIC) administers the leased shares appropriated to the VVWB. The VVWB leases the shares to the golf club owners. And Bingham participated in a February 24, 2020, deposition of Colby Pellegrino, Director of Water Resources for SNWA, confirming that MIC employees determine the beneficial use of shares administered.

And Bingham was present when Ms. Pellegrino said that in 2018, the Nevada Water Engineer granted MIC employees a -5-year extension to prove beneficial use.

In other losses:

1. Bingham claimed that the VVWB had absolute authority to set prices at whatever rate they desired. Not so, Judge Timothy Williams ruled.  That is a decision for the jury to decide.  
2. Bingham argued that the owners of Paradise Canyon violated a contract provision requiring the use of city-managed effluent before using river water for irrigation.  Not quite, says Judge Williams;  the “conduct” of Water Board officials“ resulted in a waiver of such condition. Therefore, the failure to use available recycled or effluent water was an immaterial provision under the Lease.” That took that side-show out of contention.
3. The owners sub-lease irrigation water in violation of the contract, Bingham said.  In the sub-lease ruling, Judge Williams said that the contract does not prohibit Paradise Canyon from using a small fraction of the leased Irrigation Shares to irrigate the common areas adjacent to its golf course. And, the Judge pointed to “uncontroverted evidence” that the Virgin Valley Water District (VVWD) had noticed, was aware of, and accepted the water use arrangements in 2011, 2012, and 2014. Judge Williams noted that the VVWD inaction resulted in a waiver, even if the Lease’s water usage prohibition was a material term.
4. So Bingham tells the Court that the contract he drafted for leases “in perpetuity” is unenforceable. The Judge did not address the issue of the competency of an attorney writing an unenforceable agreement. In the ruling, Judge Williams said that the rule of perpetuities does not apply to commercial contracts.

Bingham wants a do-over on all the motions. And the VVWB will spend additional public funds to bring in their newest addition to their case, former State Senator Mark Hutchison, to reargue their motions.

During a motion hearing on Monday, September 13^, Bingham had Hutchison plead with Judge Williams to allow for an evidentiary hearing and reconsider what Bingham has argued over the years and months in this case. Simply put, Hutchison was telling the Judge that he errored by not ruling in Bingham’s favor.

At the same time, Hutchison introduced a new legal theory. According to Hutchison, the owners of Paradise Canyon violated the Covenant rule by not doing what the water board wanted, as stated by Bingham, and overturned by the Judge.

At 10 a.m. On January 10, Judge Williams will listen to Bingham-Hutchison reargues the perpetuity issues.

In addition, a trial initially scheduled for January has moved to April 18, 2022.

Endnote:

[i] What counts as a beneficial use can vary across jurisdictions, but in Nevada includes irrigation, power, municipal supply, beneficial use, mining, livestock watering, and recreation. A water rights holder in a prior appropriation system who stops putting their water to beneficial use is at risk of losing their water rights.