President’s Perspective
If you have lived in Nevada very long, you have heard the adage “Whiskey is for drinking and water is for fighting,” and from what I have seen it is true.
I am going to take this month’s article to first introduce everyone (if you don’t know him) to Dave Baker, your incoming President for NCA, and second let him make you aware of the water lawsuit that is going on in Baker, Nevada. NCA is preparing an Amicus Brief to help chime in on what we feel is a violation of Nevada Water Law. With that, here is Mr. Baker…
Greetings! President Hanes Holman asked me to write this month’s article because I am closest to a current issue that threatens many water right holders throughout the west.
My two brothers and I own and operate a ranch in Baker, Nevada near Great Basin National Park. With the exception of a couple of small supplemental wells, the irrigation water for the main ranch is provided by Baker and Lehman Creeks. These creeks originate and flow through the park (established in 1986). From the 1870s until 2012, we and our predecessors maintained the stream channels, keeping the water in the stream channels and removing obstructions as necessary. This was done using hand tools. This practice is expressly authorized by Nevada law.
In 2012, the National Park Service (NPS) informed us that we would be arrested if we removed any debris or obstructions from the streams. In the years that followed, some of Baker Creek was diverted into a crack in a limestone cliff, resulting in a dried-up stream channel during low flows. We are only aware of one other instance of this section of the creek running dry in the history of the ranch. The NPS cut and felled trees into Lehman Creek contributing to braiding of the stream, and then planted riparian vegetation along the braids.
In the 1920s, the Nevada state engineer conducted an adjudication of Baker and Lehman Creeks and submitted it to the state court. This resulted in the Baker/Lehman decree of 1934. The National Forest Service was given notice of the proceedings and did not participate.
When Congress established Lehman Caves National Monument in 1922, the government acquired water rights that were adjudicated and determined in the decree. When the park was established, Congress reserved for it only those water rights that were associated with the 1909 withdrawal of the National Forest and the 1922 withdrawal of Lehman Caves National Monument.
The McCarran Amendment is a federal law, enacted in 1952, which waives the U.S. government’s sovereign immunity in suits concerning ownership or management of water rights. It enabled suits concerning federal water rights to be tried in state courts.
Baker Ranch and other plaintiffs filed suit against the Department of the Interior and the National Park Service in the Nevada state court that issued the decree, pleading one claim for enforcement of the decree. After various proceedings in state court, United States District Court (USDC), and the Ninth Circuit Court of Appeals, the USDC has dismissed the case, contending that the McCarran Amendment doesn’t apply, and therefore, the U.S. government is not subject to state authority over the waters of Baker and Lehman Creeks.
In Dugan v. Rank (1963), the Supreme Court ruled that the McCarran Amendment only applied to comprehensive adjudications. In our case, the USDC concluded that the McCarran Amendment didn’t apply because the original adjudication did not consider any federal reserved rights that might be created later, and therefore, was not “comprehensive.” When these two court decisions are taken together, the McCarran Amendment is effectively nullified, and the undeniable intent of a congressional act is reversed. Congress passed the McCarran Amendment to ensure that the U.S. government is treated no differently than a private appropriator of water.
Although the facts of this fall squarely within the plain language of the statute, the USDC held that the U.S. government is above the law and beyond the reach of any court if it asserts federal reserve rights that were not claimed or determined in a state adjudication that occurred prior to 1952.
As a result of this dismissal, no court has jurisdiction to prevent the National Park Service from violating the decree and diverting water that belongs to others, even though it benefits from the decree rights and the protection afforded by the decree.
If upheld, this decision could exempt the federal government from adhering to state water laws in many systems governed by state decrees. On streams governed by a pre-1952 decree, the U.S. government can now assert – for the first time – a federal reserved right to use water in a manner contrary to the rights established in the decree, and illegally use water in violation of the decree without any consequences.
The stability and sanctity of any rights recognized in a state court decree that predates the enactment of the McCarran Amendment of 1952 are now in jeopardy. The decision not only jeopardizes the water rights of farmers and ranchers, but also the water rights held by many municipalities throughout the west.
If this decision is upheld, it will greatly reduce the western states’ authority over water and transfer it to the federal government. Western states have the choice to oppose this decision or forfeit their authority. States and other organizations that wish to oppose this USDC decision can do so by submitting an amicus brief in support of our appeal to the Ninth Circuit Court of Appeals.
The United States District Court’s decision is available here: https://casetext.com/case/baker- ranches-inc-v-haaland-5
Cheers!
Hanes Holman, NCA President
Dave Baker, NCA President-Elect