Carson City, NV,
On Tuesday, May 22, The United States Court of Appeals for the Ninth Circuit requested the Nevada Supreme Court to rule on a major issue of Nevada water law and its application to the state’s public trust doctrine. The Question for the Nevada court:
“Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent”?
The case currently pending in the Ninth Circuit considers if the public trust doctrine can authorize modification of a water rights decree and reallocate those “rights” in the public interest (the Walker case).[i]
Like the Colorado River in Southern Nevada, the Walker River Basin is in decline and runs across state boundaries into California.
Walker Lake is a natural lake, in the Great Basin in western Nevada in northwestern Mineral County along the east side of the Wassuk Range, southeast of Reno. On May 24th, the lake was 20.67 feet below full pool level.
The Nevada Supreme Court recognized the public trust doctrine and water issues in a case [[ii]] involving the transfer of state-owned land to Clark County. That land was formerly under a publicly owned navigable waterway. Because the land was formerly under water, the court recognized it as a public trust issue “based on a policy reflected the Nevada Constitution.”
The court noted that it had applied public trust principles in several of its earlier decisions. One of those decisions, Mineral County v. Nevada Department of Conservation & Natural Resources, appears to be particularly relevant in the current case.
Attorneys in Tuesday’s filling point out that the public trust of water is undisputed. [Under Nevada law (NRS 533.0250 all “[t]he waters of all sources of water supply within the boundaries of the State (of Nevada) whether above or beneath the surface of the ground,belongs to the public.”]
The attorneys argue that holders of water permits [vested or otherwise] does not imply ownership. It is merely an ability to enjoy water for beneficial use. Therefore, they argue that those “rights” are subject to the public trust,” which at all times forms the outer boundaries of permissible government action with respect to public trust resources. In this manner, then, the public trust doctrine operates simultaneously with the system of prior appropriation.”
The attorneys suggest that “If the current law governing the Nevada water engineer does not clearly direct the engineer to continuously consider the public’s interest in Nevada’s natural water resources, then the law is deficient.” They argue that “It is then appropriate, if not our constitutional duty, to expressly reaffirm the engineer’s continuing responsibility as a public trustee to allocate and supervise water rights so that the appropriations do not substantially impair the public interest in the lands and waters remaining.”
This case raises a significant and novel issue of western water law by considering whether the public trust doctrine can authorize modification of a water rights decree and reallocation of water rights adjudicated in the decree.
[i] Mineral County, et al. v. Walker River Irrigation Dist., et al., No. 15-16342, U.S. Court of Appeals, Ninth Circuit (hereinafter “Walker River case”).
[ii] Lawrence v. Clark County, 254 P.3d 606 (Nev. 2011).