Mesquite, NV., Years into the civil suit over water pricing, Virgin Valley Water Board (VVWB) Attorney Jedediah (Bo) Bingham has called for help to get his chestnuts out of the fire.
For three years and four months, Bingham, at public expense, has attempted and failed to defend the water boards’ attempt to raise the price of polluted river water used for local irrigation by 500 %.
The owners of Paradise Canyon (dba Wolf Creek Golf Club) took the VVWB to court after attempting to raise their irrigation rates from $250 per share to the $1,246 [i] rate, now reduced to $1,115.00 per share. The attorneys for the owners of Paradise Canyon claimed the move violated the covenant and good faith and fair dealing standards in contract law.
During a motion hearing on Monday, Sept 13, Bingham brought Nevada’s former Lieutenant Governor and former State Senator, Mark Hutchison, to plead with Judge Timothy Williams to allow for an evidentiary hearing and reconsider what Bingham has argued over the years and months in this case.
Revisiting the evidence is a backhanded slap at the Judge’s previous ruling that Bingham lost. 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.
Paradise Canyon attorney Jeff Sylvester objected. In objecting, Sylvester went to some lengths to review the substantive evidence and legal findings that supported the Judge’s previous rulings, essentially dismissing Hutchison’s proposal to rehear the case.
Sylvester said this is the end of beneficial use motion. And he pointed out that Bingham never affirmed their view of the covenant of good faith argument during the years and months of litigation.
Sylvester said: “they [Bingham] reserved that [Covient] point, and now we have this new argument on the covenant of good faith.” And he went on to say: “You [Judge Williams] already said that they [Bingham] had not demonstrated a breach of the lease. Therefore the court rejected that [a covenant of good faith] argument. The idea that they get another bite of the apple is not the way it works; he reminded the Judge
The Judge pinged Hutchison for case law supporting his contention that his ruling required reconsideration. Judge Williams pointed out that court dates, if any, on the reconsideration’s motions depending upon how he ruled on Hutchison’s request.
In the meantime, he scheduled motions to exclude testimony from some Paradise Canyon witnesses that Bingham has impugned and set it for 9:30 a.m. Monday, Oct 13.
What is beneficial use, and why is it important?
Presently the Southern Nevada Water Authority (SNWA) will pay millions to convert historic water shares, currently unused, and take a high percentage of that unused water from Lake Mead and deliver it domestically [through a cleaning process] to their customers.
However, before paying for river water, the SNWA, in collaboration with administrators of river water, the Mesquite Irrigation Company (MIC), must determine an unused amount for the Nevada State Water Engineer. And that requires a subtraction from an amount quantified as “beneficially” used. [i]
Bingham talked for about 9 hours during two hearing days rambling over 496 PowerPoint slides during the beneficial use motion hearing. He spends a little time trying to convince Judge Williams that Paradise Canyon owners had a role in determining beneficial use of MIC administered river water. He spent even more time rehashing issues he already lost and impugning the character of the owners of Paradise Canyon, their lawyers, and other potential witnesses who disagree with Bingham’s assertions.
Bingham knows that neither the owners of Paradise Canyon nor the water board plays a current role in determining beneficial use. He participated in a Feb 24, 2020, deposition of Colby Pellegrino, Director of Water Resources for SNWA, when she declared that MIC employees are responsible for determining the beneficial use of shares, they administer.
And Bingham was present when Ms. Pellegrino said that the Nevada Water Engineer, who demands the beneficial use numbers, in 2018, granted MIC employees a -5-year extension to prove such use.
Bingham claimed that the failure of the owners of Paradise Canyon to declare beneficial use created a financial loss for all shareholders. However, from Ms. Pellegrino’s testimony, he knew that SNWA could continue the leases shares until MIC kept asking for beneficial use waivers.
And Bingham likely knows that as of August 2019, SNWA paid river water shareholders $57,994,321.65 for allegedly unused water shares. And that amount keeps increasing.
[i] Under Nevada state law, all water sources belong to the public , and beneficial use refers to public use of water. That means that any public water used beneficially is for the benefit of the public. That means that any public water used beneficially is for the benefit of the public.