Nevada Supreme Court says state cannot change water rights for ‘public trust,’ a loss for environmentalists, county seeking to bring more water to Walker Lake
The Nevada Supreme Court ruled Thursday that the state cannot reshuffle existing water rights to prevent environmental damage, despite recognizing a legal principle that requires the government to preserve natural resources for future generations.
Instead, the court ruled that principle, known as the public trust doctrine, is recognized in existing law. The Nevada court, in a 4-2 decision, separated itself from the California Supreme Court, which reached the opposite conclusion in a landmark 1980s case.
Effectively, the court found that the system that underpins Nevada’s water law, known as the doctrine of prior appropriation, is meant to take the public interest into account by defining how water can be used and by placing guardrails to prevent waste or overuse in times of scarcity. Allowing reallocation, the court said, “would create uncertainties for future development.”
The decision deals with litigation on the Walker River, which rises in eastern California and flows into western Nevada, ending at Walker Lake, a terminal desert lake in Mineral County. Along the way, water is removed from the river for farming and ranching operations. As more and more water was used over the past century, the lake shrunk and its water chemistry changed.
Walker Lake became increasingly inhospitable for fishing, boating and recreation, harming the local economy of Hawthorne, the small Mineral County town located near the lake. In 1994, the county took the issue to court. It intervened in an ongoing case to assert a “public trust” claim, asking the court to do what existing water law had not: require that a minimum flow reach the lake.
“The public trust doctrine is something that transcends statutory law,” said Simeon Herskovits, an attorney for the Walker Lake Working Group, an organization of Mineral County residents.
Although the opinion recognizes that the public trust doctrine applies “to all waters of the state, whether navigable or non-navigable,” it says the state cannot reshuffle existing water rights to meet its responsibilities. Those responsibilities are instead met through existing statute.
“We recognize the tragic decline of Walker Lake,” Justice Lidia Stiglich wrote. “But while we are sympathetic to the plight of Walker Lake and the resulting negative impacts on the wildlife, resources, and economy in Mineral County, we cannot use the public trust doctrine as a tool to uproot an entire water system, particularly where finality is firmly rooted in our statutes.”
Justices Elissa Cadish, Mark Gibbons and James Hardesty joined the majority opinion. Justice Ron Parraguirre voluntarily recused himself from the decision.
The ruling marks a significant loss for environmentalists who view the public trust doctrine as a pathway for carving out greater protections for the environment and recreation in a legal system where water is often appropriated to private interests with little left to spare for anything else.
“This says we’ve got a public trust doctrine and it applies everywhere,” said Bret Birdsong, an environmental law professor at UNLV who filed a brief in the case. “Only it means nothing.”
The decision, Birdsong argued, relegated the public trust doctrine, what is meant to be a broad legal principle, to a set of statutory tools that have not always protected resources long-term.
“It’s a bad decision for the environment,” he added.
In a dissent, Chief Justice Kristina Pickering criticized the majority interpretation, writing that it could mean “there is no remedy or action to be taken to protect from the irreversible depletion of this state’s most precious natural resource,” as long as the state engineer fulfills his statutory role.
Justice Abbi Silver joined Pickering in the dissent.
The issue came before the Nevada Supreme Court after the 9th Circuit Court of Appeals was weighing Mineral County’s public trust claim. In 2018, the appellate court asked the Nevada Supreme Court to define the scope of the public trust doctrine as it is applied to the state’s water rights system. The case then became about much more than Walker Lake.
Water users across the state — cities, counties and tribes — became involved, filing briefs with the Supreme Court. Industry groups for miners, ranchers and farmers similarly filed briefs. Most argued against the reallocation of existing water rights, considered a property right.
On Thursday, the court ruled that water rights cannot be reallocated unless provided by statute.
Rod Walston, an attorney for Lyon County and Centennial Livestock, applauded the ruling and noted that it could have broader implications for other Western states, where courts are still weighing the scope of the public trust doctrine in the context of existing water allocations.
“Until this decision today, only one [state] Supreme Court had dealt with this,” Walston said.
In a 1983 case involving the Los Angeles Department of Water and Power’s diversion of water away from Mono Lake, the California Supreme Court affirmed the public trust doctrine can affect existing water rights. Nevada’s recent decision marks a stark contrast to that ruling.
Pickering’s dissent, which cited the Mono Lake case, argued that the public trust doctrine was a distinct element of law that evolved separate from statute and should be considered in balance.
The statutory framework, Pickering said, does not always fully account for public trust values.
“For example, while it could theoretically be in the public interest to allocate water rights to facilitate cattle grazing, increase herd size, and ultimately reduce the price of beef for dinner, if done without regard to the deleterious impacts of unsustainable water and grazing on Nevada’s natural resources, such action could also be entirely inconsistent with public trust principles,” she wrote.
She added that Mineral County’s public trust claim might not necessarily affect existing rights. The county sought “a range of relief” that could “take a number of different forms,” including irrigation efficiency, a state-led plan and changing how water is managed in wet years.
“Crediting Mineral County’s position with respect to the public trust doctrine does not require that the decree court revoke senior adjudicated Walker Basin water rights,” Pickering wrote.
In a footnote, the majority disagreed with this interpretation of the case, arguing “the underlying dispute involves demands for over-appropriated resources that require determining whether water rights may be reallocated from current rights holders.”
Herskovits said the decision could make it harder to bring a public trust claim in the future.
“The majority opinion creates a precedent that will make it extremely difficult for any individual citizens or citizens organizations to bring an action challenging whether or not the public trust duty or obligation has been fulfilled by the state,” Herskovits said in a phone interview.
“It is very significant and it has tremendous implications for the state,” he added.
The Nevada Independent is a 501(c)3 nonprofit news organization committed to transparency & disclosing of donors. The following people mentioned in this article are financial supporters of our work: Abbi Silver $240.00 | Bret Birdsong $150.00 | Elissa Cadish $740.00 Kristina Pickering $360.00 | Ron Parraguirre $150.00
By Daniel Rothberg on 9.18.2020
Daniel is a Las Vegas based reporter covering energy, the environment and water. He reported on technology and energy for two years at the Las Vegas Sun, where his coverage was recognized with a Journalist of Merit award from the Nevada Press Association. (Article reprinted with permission)