September 24

Congratulations to Gordon DePaoli, Dale Ferguson and Domenico DePaoli, Woodburn’s Natural Resources Practice Group, for their Nevada Supreme Court victory in Mineral County, et al. v. Lyon County, et al., View the Case. They represented the principal defendant, the Walker River Irrigation District, which encompasses 80,000 acres of irrigated land on the East, West and Main Walker Rivers in Nevada.  The Nevada Supreme Court’s decision means that perfected water rights cannot and need not be reduced by reallocation to other public resources in order to satisfy the public trust in Nevada.

The case was brought by Mineral County in 1995 to require the United States District Court for the District of Nevada to modify its Water Rights Decree on the Walker River to reallocate the waters of the Walker River to provide a minimum flow every year into Walker Lake based upon the public trust doctrine.  The matter was before the Nevada Supreme Court on certified questions to it from the Ninth Circuit Court of Appeals.

In a Landmark Opinion issued last week in that case, the Nevada Supreme Court held that the public trust doctrine does not require, and Nevada’s water law does not allow, the reallocation of perfected water rights for the benefit of public trust resources, such as lakes or wetlands.  The Opinion is the first major State Supreme Court decision concerning the relationship between water rights and the public trust doctrine in nearly 40 years, since the California Supreme Court reached a contrary conclusion in a case involving Mono Lake, National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983).  It is also the first State Supreme Court decision to clearly decide that perfected water rights cannot be reallocated because those water rights were acquired consistent with the public trust.

The Court embraced the District’s argument that the “public trust resource” at issue was Nevada’s grant of the right to use water, not Walker Lake, per se.  Following that analysis, the Court concluded that Nevada’s comprehensive water law satisfied the public trust doctrine, and did not allow for reallocation of fully perfected water rights.

As a matter of sound policy, the Nevada Supreme Court acknowledged that protection of perfected water rights is vital to municipalities, agriculture, mining and other industries in arid states like Nevada.  It recognized that to permit reallocation of such water rights would create “uncertainties for future development in Nevada and undermine the public interest in finality and thus also the management of these resources consistent with the public trust doctrine.”  Because the matter was in the Nevada Supreme Court on certified questions from the Ninth Circuit Court of Appeals, it will be returned to that Court for final disposition.