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News and informationOn The Water FrontThe EconomyVirgin RiverVirgin Valley Water Board (VVWB)

Water Board Attorney Continues Tirades Over Civil Issue

Virgin Valley Water Board

Mesquite, NV. Last Friday, Jedidiah (Bo) Bingham, the Virgin Valley Water Board (VVWB) attorney, again launched into a tirade about the misfortunes imposed upon those elected officials from a civil action seeking redress from their questionable water pricing practices.

Bo Bingham by Andrew Davey

Bingham’s recent diatribe came during the latest in a series of motion hearings before Las Vegas District Court Judge Timothy Williams. The Judge hears the motions in preparation for a July 12 jury trial in the two-year 9-month old civil cases (No. A-18-774539-B) brought by Mesquites’ Wolf Creek golf course owners. The owners seek legal adjustments from an attempt by the VVWB to raise their river water irrigation rates from $250 per share to originally $1,246 [i] per share but now reduced to $1,150.00 per share.

Friday’s rants followed November 06, 2020, motion hearing before Judge Williams when Bingham accused the Golf Course owners of lying and engaging in fraud. Bingham’s uncontrollable outbursts during that hearing caused Judge Williams to interrupt and ask that he clarify the alleged “misrepresentations.” Bingham hemmed and hawed and spent an entire afternoon trying to explain his allegations to the Judge. Jeffrey R. Sylvester, Attorney for the Golf Course owners, mentioned to the Judge that he would deal with Bingham’s acquisitions later.

The November 2020 hearings involved Bingham’s accusations that the golf course owners had to use effluent(wastewater) before using river water to irrigate their golf course and therefore delegitimized the irrigation contract under dispute.  On February 2, 2021, Judge Williams rejected Bingham’s argument. And that was not the first time Bingham had lost the effluent fight.

Robert Sweetin

Early in November of 2018, just a few months after Wolf Creek owners filed their May civil action against the water board,  Bingham partnered with then-Mesquite City Attorney Robert Sweetin to involve the City as a co-defendant in the suit. The two publicly paid attorneys jointly argued that since the city managed the effluent, the court should allow the City in as a co-defendant.  On November 28, 2018, Judge Williams kicked the City to the side and denied their involvement. He told Sweeten and Bingham that never in his time on the bench had anyone come before him asking to be sued.

Friday’s motion hearing dealt with applying covenant and good faith principles in the irrigation water contract between the water board and the owners of Wolf Creek.

For the owners, Sylvester argued that good faith principles apply, and the water board has acted in bad faith by attempting to increase irrigation rates by some 500%. Bingham argues that the Water Board has the sole and absolute discretion to do whatever they want whenever they want when setting water rates.

Sylvester reminded the Judge of Bingham’s previous attempts to argue against the application of good faith in his client’s contract. He pointed out that Bingham was bringing the same outdated arguments that the court already decided.  And he made a standing objection to the Judge that Bingham’s statements continually fell outside the boundaries of the issue at hand that day.

Sylvester also argued that an unreasonable rate tempers Bingham’s absolute discretion argument.  He pointed out that the water board holds a monopoly on water and lacks oversight by state regulatory authorities. As such, Sylvester says the VVWB can establish rates too high for local irrigation purposes but substantial enough to generate profits from the Southern Nevada Water Authority (SNWA). He argued that, for example, if they wanted to make a profit, the VVWB  could raise the irrigation water rate to $10,000 and sell or lease that source to SNWA for considerable gains. Thus, he pointed out that tempering rate-setting requires applying the covenant of good faith and dealing principle. Not doing so, the attorney argued, makes the contract illusionary and unenforceable as a matter of law.


Authors note: [i]

Under Department of Interior:  Bureau of Reclamation regulations, the SNWA leases or purchases “unused” publicly owned but historically appropriated water. This now unused water then flows freely downriver, where it somewhat counters decreasing levels of Lake Mead caused by drought and aggressive SNWA withdrawals.

Between 2005 and 2019,  local irrigation company shareholders earned $49,382,311.99 in SNWA payments for not using public water for its intended purposes and letting it flow into Lake Mead. Irrigation companies, the Virgin Valley Water Board, earned another $1,540,420.75 for not “managing” the use of that water and letting it flow freely into Lake Mead. Those payments continue to this day at approximately the averages per shareholder or company rate listed in the table.

SNWA Virgin River payment analysis (2005-Aug 2019)
Districts To irrigation companies To shareholders Subtotals
Bunkerville Irrigation Company (BIC) $730,420.75 $25,940,880.24 $26,671,300.99
Mesquite Irrigation Company (MIC) $610,000.00 $23,441,431.75 $24,051,431.75
Virgin Valley Water District (VVWD) $200,000.00 $200,000.00
Total $1,540,420.75 $49,382,311.99 $50,922,732.74
Per year per person or per company averages $51,554.64 $79,265.35

Regardless, Bingham continued to rave about the injustices imposed on elected officials by the Golf Course owners’ by questioning their pricing [and profiteering] practices.

Finally, Judge Williams put an end to Bingham’s rants, saying that he understood the discrete issues before him that day.

The convenient and good faith arguments will continue at a later time. As necessary,  maybe, more importantly, the Judge will hear arguments on the SNWA rate quagmire at a yet unscheduled motion hearing before trial.


Note:

While it did not come up Friday, in earlier hearings, Judge Williams pointed out that the water district is a political subdivision of Nevada’s State and had to act in good faith

Endnote:

[i] Payment records retrieved from a records request to the Southern Nevada Water Authority.

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About Author

Michael McGreer Mesquite, Nevada
Dr. Michael Manford McGreer is managing editor of Nevada-today.com and writes on issues that impact public policy.

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