Client Successes Sep 22, 2020

Nevada Water Rights Victory

BB&K Attorney Rod Walston Successful in Public Trust Doctrine Dispute in Nevada Supreme Court

Nevada Water Rights Victory

The Nevada Supreme Court adopted an argument by Roderick Walston, who is of counsel at Best Best & Krieger LLP, in deciding a much-anticipated case involving whether the public trust doctrine applies to water rights previously adjudicated in court and if the State can reallocate water rights to protect public trust uses.

Rod represented two of the main defendants, Nevada’s County of Lyon and California-based Centennial Livestock, in Mineral County, et al. v. Lyon County, et al. In a decision issued Thursday, the Court held 4-2 (with one recusal) 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.”

The case was brought by Mineral County, which argued that the public trust doctrine applies to adjudicated water rights, which, it claimed, requires the State to reduce upstream water diversions to protect public trust uses in Walker Lake in Nevada. The public trust doctrine is an ancient legal doctrine emanating from Roman times that holds that the state has sovereign authority to regulate and control navigable waters, and that the state regulates and controls the waters for the benefit of the people. Walker Lake is located at the end of Walker River, which begins in eastern California and flows to Nevada. Along the course, water is removed for various uses, such as farming. Because of drought and diversions, Mineral County said Walker Lake has been negatively impacted and sought to have the water rights of upstream users reallocated to protect public trust uses, such as fishing and boating, in the Lake.

The Nevada Court, upholding Rod’s argument, held that the public trust doctrine applies to appropriative rights, and applies to adjudicated water rights. But the doctrine, as so applied, requires that the Legislature regulate water in the public interest, and the Legislature fulfilled its public trust duty by enacting the statutory water rights system in the public interest; specifically, the statutory system provides that all water of the State belongs to the people and that water can only be appropriated for a beneficial use. The statutory system also provides, in NRS 533.210(1) and 533.0245, that adjudicated water rights cannot be reallocated. The Legislature reasoned that the finality and certainty of adjudicated water rights is in the public interest of the people of Nevada, because of the scarcity of water in Nevada.

The matter will return to the U.S. Ninth Circuit Court of Appeals, which certified the public trust issue to the Nevada Supreme Court.

The Nevada Supreme Court did not reach a decision on the second issue certified by the Ninth Circuit, which was: If Nevada’s public trust doctrine applies to adjudicated water rights, does the doctrine result in an unconstitutional taking of property? The Court determined the question was moot in light of its answer to the first certified question.

Read more about the matter in the Elko Daily Free Press.

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