History
1924 Walker Lake Paiute Tribe water rights
In 1924, the United States brought a case in the United States District Court for the District of Nevada to establish water rights for the Walker Lake Paiute Tribe (the Tribe). The case resulted in the Walker River Decree (the Decree) in 1936, [1]which adjudicated the water rights of various claimants under the prior appropriation doctrine.
1987 Procedures requested
In 1987, Tribe members asked the court to establish procedures to change water rights allocations subject to the Decree, putting all application changes under the Nevada State Warter Engineer.
1991 Tribe seeks additional water rights
Then in 1991, the Tribe authorities sought recognition of additional water rights under the implied federal reserved Water right.
1994 Mineral County moves to modify 1936 Walker River Decree
And in 1994, residents of Mineral County moved to intervene to modify the 1936 Walker River Decree (the Decree), which adjudicated the water rights of various claimants under the prior appropriation doctrine to ensure minimum flows into Walker Lake. It noted the decline of Walker Lake and its impact on Mineral County’s economy. An amended complaint sought an allocation of minimum flows of 127,000 acre/feet per year to Walker Lake under the “doctrine of maintenance of the public trust.”
2013 Intervention granted
In 2013 The United States District Court for the District of Nevada granted Mineral County’s intervention 2013.3 Appellants from the Walker Lake Working Group also supported Mineral County’s position but was a defendant in the lower court case as rights holder under the Decree.
2015 Amended Complaint dismissed
Then in 2015, the United States District Court for the District of Nevada dismissed Mineral County’s amended complaint in intervention, arguing that representatives of Mineral County lacked standing to assert a parens patriae theory saying that the public trust doctrine could only prospectively prevent granting appropriative rights. Any retroactive application of the public trust doctrine would constitute a taking requiring just compensation. Under the political question doctrine, the Justices lacked authority to effectuate a taking adding that Walker Lake is not part of the Walker River Basin.
Representatives from Mineral County and the Walker Lake Working Group appealed to the Ninth Circuit Court of Appeals. Eventually, the Ninth Circuit Justices upheld the standing that Mineral County could assert its public trust claim. A concurrent case decided that Walker Lake is within the Walker River Basin. [i]However, whether Mineral County representatives could seek minimum flows depends on whether the public trust doctrine permits reallocating rights previously settled under a prior appropriation.
2018 Two questions
The Ninth Circuit Justices sent two questions to the Nevada Supreme Court Justices, which they accepted.
The Justices conclusions
In determining whether the public trust doctrine permits reallocating rights adjudicated and settled under the, the Justices discussed 1) the tenets of each principle. And 2) Nevada’s statutory water scheme and they concluded that Current Nevada law embraces both of these doctrines.
The Nevada Supreme Court Justices Lidia S. Stiglich, Mark Gibbons, James William Hardesty, and Ellissa F. Cadish [2]recognized that while public ownership of Water is the most fundamental tenet of Nevada water law, those holding vested water rights do not own or acquire title to Water but merely enjoy a right to the beneficial use of the Water.
They went on to say that the law is deficient only if the current law governing the water engineer does not direct the engineer to continuously consider the public’s interest in Nevada’s natural water resources.
The Justices pointed out that Mineral County complainants argue that the public trust doctrine requires the State Engineer to reconsider previous allocations and, in doing so, to reserve a specified minimum flow for Walker Lake regardless of any other rights or considerations.
Those individuals representing Lyon County support the conclusion that Nevada considers water rights settled by decree “vested,” “settled, “and “conclusive,” [ii]and the Nevada State Engineer, when administering Nevada’s statutory water law – may neither “carry out his or her duties . . . in a manner that conflicts with any . . . decree or order issued by a state or federal court,” [iii]nor authorize any change in water use that “is inconsistent with any applicable federal or state decree.” [iv]
The Justices argue that the doctrine of prior appropriation . . . is itself largely a product of the compelling need for certainty in the holding and use of water rights.”).
Regardless, those arguing for Mineral County and their supporters say that vested, settled, and conclusive law does not explain why the public trust doctrine must ultimately yield to the principle of prior appropriation (or, more precisely, to the decrees resulting from adjudications under the prior appropriation doctrine and Nevada’s statutory water law). Therefore, they say it is not clear that the principles of finality compel Nevada Justices to conclude that rights already adjudicated are exempt from the public trust. They point to significant authority suggesting rights already judged may not always be and forever exempt from the public trust. The Nevada Supreme Court has held:
“the most fundamental tenet of Nevada water law [is that] “the water of all sources of water supply within the boundaries of the state, whether above or beneath the surface of the ground, belongs to the public.” Indeed, even those holding certificated, vested, or perfected water rights do not own or acquire title to Water.”
Thus the case asks if the two systems of legal thought: 1) rights under prior appropriations 2) the public trust. Can the two coexist? [3],[v],[4],[vi]
Prior appropriations
The Justices recognized that the Walker Basin could not meet the county’s needs without reallocating adjudicated water rights. They point out that:
Nevada is a prior appropriation state. And the Justices noted that “The prior appropriation doctrine grants “an appropriative right [that]’ may be described as a state administrative grant that allows the use of a specific quantity of water for a specific beneficial purpose if water is available in the source free from the claims of others with earlier appropriations.”
“Our State’s water rights statutes forbid the reallocation of adjudicated water rights,” they said, adding that “water rights holders have certainty and finality in their water appropriations so that they may effectively direct water usage to its beneficial use, without undue uncertainty or waste.”
The Justices noted that “the doctrine of prior appropriation was the prevailing doctrine in Nevada.” They said that “the common-law doctrine of riparian rights was unsuitable for the conditions in Nevada”.
Public Trust
The Justices noted that Nevada’s statutory scheme incorporates the public trust doctrine, “giving force to constitutional and inherent limitations on state sovereignty that protect the public interest in the waters of the state, both navigable or non-navigable, as well as the lands underneath navigable waters.”
They said, “To allow the state otherwise to allocate waters without due regard for the public trust would permit the state to evade its fiduciary duties, and this we cannot sanction.
The Justices added, “In implementing the public trust doctrine, our state’s water rights statutes forbid reallocating adjudicated water rights.” And they said that: “The public has an interest in the effective use of public trust resources requiring that water rights allocations have certainty and finality so that rights holders may effectively direct water usage to its beneficial use, without undue uncertainty or waste.”
And the Justice point to the religious overtones of the public trust doctrine by saying, “The public trust doctrine has religious overtones as natural resource issue since it evolves from Roman law and preferential Christian philosophy. [vii] That view considered people’s rights to use natural resources rested on two principles. First, a divinity created our universe; and second, the deity created air, water, land, and sunlight for the equal use of all people.[viii] And the Christian Doctrine had roots in the 15th Century Roman Catholic Church Papal bulls, [5]where Popes gave [Christian] individuals the right to take control of land (any by default water) and subdue and convert people to Christianity.”
And they highlighted the importance of finality in economic development: “Municipal, social, and financial institutions rely on the finality of water rights for long-term planning and capital investments.”
“To permit reallocation would create uncertainties for future development in Nevada and undermine the public interest in finality and thus the management of these resources consistent with the public trust doctrine,” they said.
Further, the Justices referred to Article 8, Section 9 of the Nevada Constitution, known as the gift clause. That article states: “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”
And the Justices pointed to NRS 533.045 and NRS 533.060 as ending the right to divert unused Water. “When the necessity for the use of water does not exist, the right to divert it ceases, and no person shall be permitted to divert or use the waters of this State except at such times as required for a beneficial purpose.”
Can the two coexist?
“Our state’s comprehensive water statutes do not permit the reallocation of water rights already adjudicated and settled under the prior appropriation doctrine. In doing so, we reaffirm that the public trust doctrine applies in Nevada and clarify that the doctrine applies to all waters within the state, including those previously allocated under the prior appropriation,” the Justices said.
They said, “We further hold that the state’s statutory water scheme is consistent with the public trust doctrine by requiring the State Engineer to consider the public interest when allocating and administering water rights.”
They concluded that: “in recognizing the significance of finality in water rights, our Legislature has expressly prohibited reallocating adjudicated water rights that have not been otherwise abandoned or forfeited by the state’s water statutes. Accordingly, we answer the first question as reworded in the negative (cannot reallocate) and need not consider the second [because the State Engineer must consider the public trust in its administrative duties].
No Compensation required
The Justices said, “If the public trust doctrine applies and allows for reallocation of rights settled under the doctrine of prior appropriation, does the abrogation of such adjudicated or vested rights constitute a ‘taking’ under the Nevada Constitution requiring payment of just compensation?”
But, they said, “We conclude that the public trust doctrine as implemented through our state’s comprehensive water statutes does not permit the
reallocation of water rights already adjudicated and settled under the doctrine of prior appropriation
Therefore there is no taking that would require compensation?”
