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On the Water Front: All About the Public Trust

Last night, the Virgin Valley Water District (VVWD) Board voted unanimously to explore the possibility of submitting a brief in support of the Walker River Irrigation District as that district fends off a legal challenge that could result in a fundamental shift in how the State of Nevada treats water as a “public trust”. So why might the VVWD Board intervene in a case far from their jurisdiction, what’s actually at stake in the Walker River case, and how might this affect other critical water cases throughout Nevada?

Here’s a glimpse inside two rural Nevada water districts and their struggle to figure out what’s in the public trust and whether they’re willing to comply.

What’s the public trust doctrine, and why has it taken center stage?
Photo by Andrew Davey

Legal self-help hub Nolo describes the public trust doctrine as “the principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public’s use.” At face value, it seems very simple. Natural resources, such as water, are public resources that must be preserved for the public’s benefit.

However in the Walker River Basin, this matter is anything but simple. Walker Lake in Mineral County is nearing historic lows, the Walker River Paiute Tribe are fighting in federal court to secure their share of Walker River water, and upstream farmers and ranchers in Lyon County prefer to keep in place the arrangement that essentially ensures they have “first dibs” on Walker River water.

In May, the Ninth Circuit Federal Court of Appeals ruled in favor of the Walker River Paiute Tribe and Mineral County in a series of water rights cases. Among their decisions, the Ninth Circuit decided that Mineral County has standing to pursue a public trust claim to restore Walker Lake’s water levels, and ordered the Nevada Supreme Court to hear this public trust case. Should the Nevada Supreme Court rule in favor of Mineral County and the Walker River Tribe, not only will this change the balance of power and the flow of water in the Walker River Basin, but it will also set a legal precedent that might prove critical in two other water cases: the fight over Southern Nevada Water Authority‘s (SNWA’s) proposed pipeline to Eastern Nevada, and Wolf Creek Golf Club’s suit against the VVWD over that district’s pricing rules.

“We think prior appropriations should supersede the public trust doctrine.”
– Bo Bingham, Virgin Valley Water District Attorney
Photo by Andrew Davey

Last night, the VVWD Board met to decide whether to intervene in the Walker River case. At the meeting, VVWD attorney Bo Bingham recommended an amicus brief. According to Bingham, “This could wreak havoc on the entire appropriations structure for water in this state.” He went on to say, “We think prior appropriations should supersede the public trust doctrine.”

But just minutes prior, during public comment, Mesquite resident and Nevada Today Managing Editor Mike McGreer had a very different take on this litigation. According to McGreer, “Under the public trust, Nevada’s waters could never be controlled by or transferred to private interests for private purposes or gain.” He continued, “Act to hold Virgin River water as a public trust, and ensure that decisions involving the reallocation of all water held by those privileged to enjoy those public waters for beneficial [local] use.”

After Bingham made his presentation, VVWD Board Member Randy Laub asked, then answered, this question: “Are we on the right side of this? I think [we are].” Still, after legal counsel clarified that November 26 is the deadline, Laub added, “It sounds like we have time. I think we can reach out to SNWA, see what they’re doing.”

“If another district is having issues and we do nothing, we could next be in the crosshairs. I want us to do something.”
– Virgin Valley Water District President Nephi Julien
Photo by Andrew Davey

VVWD General Manager Kevin Brown then chimed in, “This has the potential to change state water law. I think the district should enter into this and support the [Walker River Irrigation District].”

Though the board mostly sounded supportive, they wanted As VVWD Board President Nephi Julien stated, “I want to protect our rights. If another district is having issues and we do nothing, we could next be in the crosshairs. I want us to do something.”

VVWD Board Member Richard Bowler soon made the motion to begin the process of exploring an amicus brief in support of the Walker River Irrigation District, then bring back a formal proposal before the November 26 deadline. Bowler’s motion passed unanimously.

“This has the potential to change state water law.”
– Virgin Valley Water District General Manager Kevin Brown
Photo by Andrew Davey

If the Nevada Supreme Court rules in favor of Mineral County in the public trust case, that will likely have major implications for VVWD. Thus far, VVWD has invested over $12 million in buying water rights from Mesquite Irrigation District and Bunkerville Irrigation District. And as VVWD has been defending itself in court in the Wolf Creek case, its lawyers have been arguing that it has wide discretion to set rates and negotiate lease agreements for water it “purchased” from the two irrigation districts. A reinterpretation of the public charge doctrine might upend the current arrangement of the VVWD’s water market.

VVWD has also been leasing water rights to SNWA, which SNWA then uses toward its goal of placing water back into Lake Mead. Meanwhile SNWA is demanding a pipeline to extract groundwater from Eastern Nevada basins, groundwater that likely can’t be completely replaced by precipitation. Depending on how the Nevada Supreme Court interprets the public trust doctrine, the door might finally be slammed shut on a pipeline that ranchers and environmentalists fear will drain these basins to the detriment of local agriculture and wildlife.

If you’ve been wondering why this matter of public trust is such a big deal, wonder no more. This lawsuit may have begun along the Walker River, but it may end up causing a tsunami that reaches all the way onto City Parkway. Keep an eye on this one.

Editor’s Note: During the board meeting, Managing Editor Mike McGreer spoke during public comment and offered his personal take on the activities of the Virgin Valley Water District. This is my account of what happened last night. Stay tuned in the coming days for his insight on all things VVWD, and for my upcoming reports digging deeper into perhaps the most interesting water story you hadn’t heard about (until now).

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