*1 743 assignment are procedurally barred from consideration because Achrem presented the evidence in support those issues in his motion for reconsideration. we Accordingly, conclude that no genuine issues of fact remained for the district court to decide and summary judgment Harrison, was properly granted. v. Shepard 178, 179-80, 100 Nev. 678 P.2d PYRAMID LAKE PAIUTE TRIBE OF INDIANS and SUPERVISORS,
BOARD OF County, Lassen Califor nia, Appellants, v. COUNTY, WASHOE NORTH WEST NEVADA WATER RESOURCES LIMITED PARTNERSHIP, LTD., FISH SPRINGS RANCH and R. TURNIPSEED, MICHAEL Engineer, Nevada State Respondents.
No. 25066
June
Twedt, Hale, Lane, General, Deputy Carson Attorney City; Peek Dennison & Flangas, and Alex J. Howard Reno for Respondents.
OPINION Court, By Young, J.:
FACTS mid-1980s, In the County Washoe entered joint into ventures with Fish Springs (“FSR”) Ranch LTD. and Northwest Nevada Water Resources (“NNWR”) Limited Partnership for the pur- pose of importing groundwater from the Honey Lake Basin1 to the Reno and Sparks areas. FSR and NNWR filed “intra-basin” 2,200 the California/ located on 1Honey square mile basin Lake Basin is of Reno. thirty-five miles northwest approximately Nevada border dispute within is located Honey impacted portion Lake Basin County. Washoe Office Nevada State transfer applications rights. Honey groundwater Lake Basin existing their modify applications “inter-basin” thirty-one filed County Washoe metro- Meadows the Truckee Honey from Lake to transfer water change FSR’s were applications area. Several politan municipal to industrial existing rights NNWR’s County requested The remaining applications use. Honey Lake from rights additional water appropriation to withdraw total, county requesting permits was Basin. In Lake Basin. 28,588 Honey from the annually feet of water acre ' days hearings The State conducted twelve consider the and inter-basin transfer applications. intra-basin 2,800 hearings 136 exhibits and more than produced pages testimony from experts lay witnesses. Tribe of Indians and Board
Co-appellants Pyramid Lake Paiute of Supervisors, County, (“appellants”) Lassen California economic opposed transfer on environmental and permits grounds. One of contentions was that Washoe Coun- appellants’ ty’s proposal economically light was not feasible or desirable in negotiations that were over water in Lake occurring rights *3 Tahoe, Lake, Pyramid the Truckee River and the Carson River. California, Nevada, At the time of the and various hearings, Tribe) Indian tribes the Lake Paiute were (including Pyramid water greatly impact to reach a that would attempting settlement settlement”). rights on the Truckee River (“proposed negotiated Act, See Lake Water Settlement Truckee-Carson-Pyramid Rights 101-618, (1990).2 Pub. L. No. 104 Stat. 3295 3786, After the hearings, the State Engineer Ruling issued the granting “intra-basin” applications, and Ruling grant- ing the “inter-basin” applications. Appellants petitioned judi- for review, cial claiming that the State Engineer did not enter adequate findings 533.370(3).3 in compliance with-NRS The district granted court judicial review and the remanded decision to the State Engineer. The district court concluded that the State negotiated proposed the in court with this were filed briefs 2When County’s for solution operative water not was still settlement finalized, the was agreement the county indicated needs. various conserva completed, and was not Impact Statement Environmental implemented. were not measures tion 533.370(3) provides: 3NRS no is there where subsection in provided Except as otherwise its where or supply, source proposed in the unappropriated rights, or existing change conflicts threatens, use reject shall interest, engineer state the detrimental . . . permit. requested issue refuse application added.) (Emphasis Engineer did not specifically determine whether the applications were detrimental to the public interest. remand,
On determined that additional Instead, hearings were not necessary. his office issued Supple- Rulings mental 3786A 3787A. The forty-page supplemental rulings responded to the order of remand reviewing consid- eration of the public making findings. interest and additional State Engineer identified the following policy considerations con- tained in Nevada water statutes to help define interest:
1. An must be for a beneficial appropriation use. amount, 2. The applicant must demonstrate the source of the purpose appropriation. 3. If the appropriation supply, is municipal
applicant must demonstrate the approximate number of persons to be served and the future approximate requirements.
4. The right necessity to divert ceases when the for the
use of water does not exist. 5. The applicant must demonstrate the magnitude water,
use of such as the irrigated, number of acres the use to generated which hydroelectric power will be applied, or the number of be animals to watered. 6. In considering extensions of apply time to water to use,
beneficial must determine the number of and commercial parcels or residential units which are contained or in the area to planned be developed, economic conditions which affect the availability developer complete application use, of the water to beneficial and the contem- period plated for completion development approved by governments local or in a planned unit development.
7. For large appropriations, must
consider whether the has the financial applicant capability to *4 develop water and it to benefi- place cial use.
8. The State Engineer may also with federal cooperate
authorities in monitoring the of development use the water resources of the State.
9. State Engineer] may with California cooperate [The
authorities in monitoring the future needs and uses of water in the Lake study ways Tahoe area and to of developing water so that the supplies of development the area will not be impeded.
10.Rotation in use is authorized to bring about a more
economical use of supplies. there is determine whether may The Engineer 11. and refuse to issue groundwater over of pumping water available. there is no unappropriated if permits what is a rea- may determine Engineer] 12. [The level in an area of the static water lowering sonable of pumping into account the economics taking after and the growing of general type crops water for the the area in economy water use on the effect of general. the State designated, that has been
13. Within an area supply. the water may regulate monitor Engineer deter- Engineer the State reviewing guidelines, After these Lake Honey impor- mined that evidence indicated substantial With to respect interest. project tation served the proposed that an under agreement contentions appellants’ alternative to water was a more attractive negotiated settlement follows: Engineer the State ruled as importation, alternatives possible The cannot evaluate all Engineer Washoe any project. applicant, to particular alterna- looked at the various County, presumably already that he must act on the tives. The State finds position him and is not in applications interfere before County. and responsibilities with the decisions ability only applicant’s The State can look at put capability finance the and finds it has [sic] the water to beneficial use. added.)
(Emphasis review, judicial arguing filed a Appellants petition second interest review was insufficient. Engineer’s public that the State initial remand order who issued the judge The same district appeal. their contentions in this renew disagreed. Appellants
DISCUSSION whether the State two issues for review: appeal presents This interest” of “the meaning defined the properly is detrimental Honey importation project and whether the Lake Meaning statute, is governed of water in Nevada appropriation such regulate appropria- is authorized to 533.370(3). agency “An 533.030(1); NRS
tions. NRS see impliedly act is administrating charged duty *5 748 necessary precedent it as a with to construe power
clothed 709, Nev. 104 Engineer, action.’” State v. State administrative Further, omitted). 713, 263, (citations (1988) 766 P.2d 266 agen- ‘“great given deference should be [administrative] ” the of the statute.’ cy’s language when it is within interpretation is not (citations omitted). interpretation the agency’s Id. While Morris, v. 107 Nev. controlling, Engineer it is State persuasive. 699, 701, (1991). P.2d 205 819 deter- 533.370(3), the State must Pursuant to NRS the is detrimental to mine whether a proposed appropriation appropriation permit. a water issuing interest before public Idaho follow the lead of the argue that Nevada should Appellants Dunn, (Idaho 1985), P.2d 441 Court in Shokal v. Supreme using interest public where the Idaho Court defined Supreme statutes, statutory but also criteria only language from Idaho from Alaska. deny the Water Resources Director to
Idaho’s water law allows
a water
if the
conflicts
permit
requested appropriation
(citing
Id. at 447
Idaho Code
public
the local
interest.
§
term,
interest,
42-203A(5)(e)).
defining
public
In
considerations
public policy
Shokal court noted that instructive
were
Idaho’s water
statutes.
throughout
appropriation
contained
statutes,
developed guide-
Id. at 448.
those
the court
Referencing
Id. at
defining
lines
449.
public
ade-
guidelines
We conclude that the State
thirteen
Engineer’s
Shokal,
in
defined the
interest in this case. As
quately
statutes to
reviewed Nevada’s water appropriation
Morris,
interest. See
develop guidelines
defining
205;
at
104 Nev. at
Engineer,
Despite appellants’ assertions regarding definition of the 4Appellants statutory also cite related cases and schemes from other states. Resources, (Wash. Stempel Department See v. of Water 508 P.2d However, 1973); Legislature Neb. Rev. Stat. the Nevada 46-289 § any adopted appropriation protection has not or environmental statute requiring permitting to evaluate alternatives before granting permits. Court, Idaho we can find no indication that Nevada’s legislature intended that the State determine public policy Nevada another state’s statutes incorporating *6 and the state vesting authority to reevaluate the political and economic decisions made local government. Legislative
1. intent We conclude that Shokal Court’s decision to judicially adopt relating statutes to water allocation in other western states would contrary be “The long-standing policy of this state. Legislature has the to decide what the of the law power policy be, will, shall and if it has intimated indirectly, its however that States, will should be recognized obeyed.” and Johnson v. United 30, (1st 1908) (Holmes, J.). 163 F. 32 Cir. The Nevada Legisla- ture, presumably aware of the broad definition of the public interest enacted by other states Alaska and (particularly Nebraska), demonstrated its silence through that Nevada’s water law statutes should remain have they forty-five as been for over years. We that recognize people may argue some that the prior appropriation doctrine is not well suited to solve the modern However, demands for water across our arid state. legislature this signal departure court—must from such a —not long-recognized Nevada water policy.
2. Power County’s Washoe elected of officials Nevada water law statutes define roles for the separate and County. Washoe We conclude that at the time this arose, dispute legislature placed choosing burden of between water use alternatives on the officials of County, Washoe 1991, not the State In Engineer. legislature directed Washoe County to choose methods of water among competing augmenta- tion and to develop a master for the distribu- plan preservation, tion, and development legislative of water resources.5 This law, county 5In accordance with Nevada a board of commissioners has the construct, reconstruct, power “acquire, improve, extend or better a works, system or supply, storage facilities for the and distribution of water private public purposes.” for and (working conjunction NRS 318.144 244.157). 1991, legislature legislation NRS In specific amended for County provided and that the members of the Washoe Board of County County Commissioners were ex officio members of the Washoe Stat., 548, Regional Planning Advisory and Board. 1991 Nev. ch. 1 at § change, 1727. In accordance with power the Board was vested with the revise, “[d]evelop necessary, plans regional as for facilities for the present .[;] region [ijdentify and future use water resources within the . . potential supplies supplies of water and determine the extent of those problems nature development management!;] involved in their collection, [d]evelop storage, management, efficient methods for the [and] 750
mandate necessarily empowered Washoe County’s local officials to conduct economic and cost-effectiveness analyses of compet- ing water projects, and to determine which alternative was opti- contrast, mal. In NRS 533.370(3), which has remained essentially unchanged decades, limits the role of the State Engineer. The State Engineer has no express authority to engage in a comparative economic analysis delivery alterna- tives.
Our conclusion is supported by the ruling in Helms v. State
Environmental
Division,
Protection
109 Nev.
This decision is also consistent with our recent ruling in Serpa
County Washoe,
v.
111 Nev.
P.2d
In
Serpa, we considered Washoe County’s power as a local govern-
*7
ment to
decisions,
make water use
and we approved of Washoe
County’s denial of a developmental permit that was previously
approved by the State Engineer.
1085,
Id. at
3. The State Engineer’s lack resources of Furthermore, the legislature’s failure to increase funding for the State Engineer’s staff impliedly reinforces the conclusion that the legislature placed the burden of evaluating economic consid- erations and project alternatives on local government. See United Plainsmen Ass’n v. North Dakota State Water Conservation delivery treatment and of water in order to yield increase the existing of supplies Id., region.” within the 6 at Finally, legislation § 1729. granted the board the authority to “[m]ake concerning recommendations manage- ment and use of water region within the [among to: . . . others] state [t]he engineer.” Id.
751 1976) Comm., (N.D. (acknowledging 247 N.W.2d indicates water use planning of funds to conduct appropriation planning). intent include an in such agency clerical small staff: relatively a Engineer employs State officer, familiar workers, of engineers and a number hearing a time, the State At the hydrology. present of principles 4,200 of backlog applications under a Engineer struggles Finance; Joint Sub- water Senate Committee appropriation. Transporta- Resources and Safety, committee on Public Natural 17, 1995, Action; at 1 Of these Closing April tion Budget contested, 1,468 hearing possi- are requiring applications, that he will estimates judicial ble review. Id. 1,200 year, 200 applications per continue to receive over Id. as the State Consequently, which will be contested. awaiting have been acknowledges, processing some applications Meeting Subcommittee Minutes the Joint since 1978 1979. Assembly Committee on Committee on Finance and Senate Session, 28, 1995, at Ways Sixty-eighth April and Means: In the (statement Engineer). of R. Turnipseed, Michael case, not recognized his office does present political the social and weigh have the resources or personnel analysis competing inherent in an economic factors projects. did not that the State
Accordingly, we conclude
of eco-
including
a review
duty by
commit a dereliction of
guide-
part
nomic
and alternative
as
projects
considerations
Morris,
107 Nev. at
lines
defining
205;
at
Appellants
evidence.
by substantial
supported
interest were not
*8
findings, factual determina-
reviewing
When
the State
by
if
substantial
appeal
supported
tions will not be disturbed on
Moreover,
Morris,
P.2d at 205.
evidence.
The State minimal would Engineer found that a loss wetlands occur and that “be substantially enlarged,” alkali flats would not resulting in no increase in dust hazards “detrimental to proving interest.” settlement, regard
With proposed negotiated Engineer found “no evidence that the of the intra-basin approval affects the changes [ongoing] negotia- Truckee River settlement addition, tions.” In also found that “there is no evidence in the record that the water pumped Honey from Valley Lake could not or will not be coordinated and integrated with the negotiated settlement on the Truckee River.”
At the
conducted
hearings
Engineer,
Washoe
County presented
testimony
that even if the
expert
indicating
finalized,
proposed negotiated
county
settlement were
would
still need water from the Honey
project.
County’s
Lake
claimed that the
experts
proposed negotiated settlement would
adequately improve groundwater
development
conditions
areas north of Reno.
Experts
importation
also testified that
project was more cost-effective than the proposed negotiated
settlement would be.
testimony
Based on this
and the speculative
arose,
nature of the
settlement when
we
negotiated
dispute
*9
conclude that the State Engineer properly presumed that Washoe
County already reviewed available alternatives to the Honey Lake
Helms,
project. See
314,
CONCLUSION We conclude that the State Engineer adequately defined the public interest in this case and based his findings upon substantial evidence.
Shearing Rose, JJ., concur. J., with Springer, whom J.,C. Steffen, agrees, dissenting: court, The trial in its order remand August recognized the State Engineer’s failure to abide NRS 533.370(3),1 which commands the State Engineer to “refuse to issue the requested permit” where “its proposed . . use . threat ens to prove detrimental to the public interest.” In its remand (hereinafter order “Remand”), trial court ruled that the State not, Engineer had in issuing subject permits, properly consid ered vital public interest issues raised by the protestants and sent the matter back to the with instructions on how proceed properly accordance with the law. Because the State (or refused at failed) least to comply with the district orders, court’s and because crucial policy relating issues to this huge inter-basin water transfer remain unconsidered and undecided by the State Engineer, I dissent.
In Remand, its the trial court gave explicit and quite appropri- ate instructions to the as to how he should pro- ceed: First, the trial court instructed the State Engineer law 533.370(3)
1NRS provides: Approval 533.370 rejection or application by engineer: state Conditions; procedure. 3. Except as provided otherwise in subsection where there nois unappropriated water in the proposed source of supply, or where its change use existing conflicts with rights, or threatens interest, detrimental to the engineer state reject shall the application and refuse to issue requested permit. Where a previous application for a similar use of water within the same basin has rejected been grounds, on these application new may be denied publication. without (Emphasis supplied.) he was “charged with determining whether granting certain per- ” *10 mits threatened to prove detrimental to ‘public interest.’ Second, the court trial recognized the “lack of any specific legislative to criteria be evaluated in determining the public
interest, or any threat thereto” and that “the legislature [had] declined to interest,’ define ‘public or the factors that should be considered in defining this term.” thus, The legislature, had “delegated responsibility defining the ‘public interest’ to engineer.” state Third, the trial “bald,” court ruled that the unsupported and conclusory “finding by the engineer state that the granting of a permit does not threaten prove to detrimental to the public inter- is, itself, est by insufficient” and that a finding of “[s]uch ultimate fact must be accompanied by additional findings con- cerning basic evidentiary facts relied upon to support the of finding ultimate fact.” Citing Horizon, Nova Inc. v. City Reno, of Council 105 Nev. 769 P.2d Fourth, the trial court ruled that the “basic evidentiary facts” to relating the public interest must be in a weighed manner that “necessarily entails a balancing myriad competing interests.” sum, then, In the trial court quite properly refused to accept the State Engineer’s “bald finding that approving change applica- tions will not be detrimental to public interest.”2 In accord- ance with this ruling the trial court remanded the application proceedings to the State Engineer, (1) that ordering the Engineer furnish an administrative definition of the meaning of the statu- tory expression, “threatens to detrimental to the public interest,” (2) that the State Engineer make “additional findings concerning the basic evidentiary facts relied upon to support” his conclusion on the issue, (3) that the State Engineer make the required public interest adjudication based upon his “additional findings” of fact and by the process of “a balancing of myriad competing interests.” The trial rulings court’s remand absolutely were necessary because, court, as put by the trial the courts are “entitled to know and review the factual bases for finding” this no threat to the public interest. The basic jurisdictional defect in this case that has not been overcome arises out Engineer’s ignoring entirely trial court’s order remand. refused to define the crucial term “threatens to prove to the public detrimental interest.” The State Engineer only finding 2The relating or conclusion to the following finding”: interest was the “bald The State approval subject finds no evidence that change applications would be detrimental refused to make the “additional” findings of fact that he was ordered to make in order to provide “factual basis” for his rulings. The State Engineer refused to balance the “myriad competing interests” that were presented by the applicants the protestants, Lassen County and the Pyramid Lake Paiute Tribe. I begin cannot why understand the trial court permitted the State Engineer get away ignoring proper orders contained in the Remand. It is difficult to why understand court would permit this happen.
DEFINING THE “PUBLIC INTEREST” AND
“THREATS THERETO” 533.370(3) NRS comprises an unequivocal mandate to the State Engineer, commanding that the State Engineer refuse issue any permit where the proposed use “threatens to prove detrimental to the public interest.” Because the legislature did not *11 term, define the quoted the duty to define what is a threat to the public interest becomes the administrative of duty the State Engi- neer; yet the State Engineer adamantly refuses to perform this duty. The State Engineer’s impertinent response to the district court’s order to define administratively the subject statutory expression was to compile odd medley of thirteen “princi- ples,” none of which have the slightest thing to do with the subject of how the public interest should be treated in matters to the relating use of water in this state. These are “principles” set out in the body of the majority opinion. irrelevance of the State Engineer’s rambling, unresponsive statement of “princi- ples” is immediately Rather apparent. than the defining statutory public interest phrase, the State Engineer listed a bunch of statu- tory together citations with a recitation of a things number of that he believes a hypothetical for applicant a water use permit “must” do in order to be successful. For the State example, Engineer recited among his thirteen “principles” the obvi- quite ous requirements that an applicant “must demonstrate the amount, source and of the purpose appropriation,” and “must demonstrate magnitude the of the use of water.” The statement of “principles” also recited a things number of that the Engi- neer “may” authorities,” do (“may cooperate federal “may monitor and regulate the water supply”). The irrelevant and uncalled-for “principles” “guidelines” or compiled by the State Engineer merely comprise a useless summary readily accessi- ble statutory water law. None of the recited principles any makes reference at all to the case,
dispositive issue in this the threat or lack of threat to the public interest. After his list of compiling statutory “mays” and “musts,” the State Engineer relied on statutory these abstracts of a threat meaning of the definition (rather intelligible on an than that conclusion interest) post-Remand for his as support
to public interest —when the not a threat to was the proposed to truth, have no connection palpable references statutory the in that very clear controversy. It is in this issue only presented the statutory readily-available itemization district not comply does or guidelines “principles” no definition certainly provides on remand court’s mandate interest.” term, to the detrimental “threatens to the a provide the all for It was not at difficult statutory expres- useful, subject definition administrative the public definitions of examples are sion. There numerous from can be taken matters water it relates to as in be seen As can of other states.3 decisions judicial statutes and Alaska Engineer to the may be made the example, reference 3For states, 46.15.080, part: Statute, pertinent which section interest, shall consider the commissioner determining (b) the In appropria- proposed the resulting from applicant (1) the benefit to the tion; proposed resulting the from activity (2) of the economic effect appropriation; public recreational game (3) resources on fish and effect opportunities; health; (4) effect on might be made water that uses of (5) of alternate effect of loss proposed hindered precluded if a reasonable time within appropriation; resulting proposed appropriation; (6) persons from to other harm appropriation; complete the ability applicant (7) intent and public waters. navigable or (8) upon effect access agency must the state has ruled that Supreme Court The Idaho protect water use consequences of economic consider the 1985). (Idaho Dunn, P.2d Shokal v. “public interest.” guidance because Alaska statute Supreme Court turned Idaho *12 interest con- public broad in detail what states permit statute Alaska water consider, including eco- the agency must administrative the cerns relevant Court Supreme The Idaho Id. at 449. water use. proposed the nomic effect of statute, the listed in Alaska elements public interest adopted the approved and comprehensive be a “are not intended that those elements but warned agencies must that state determined Supreme Court The Idaho list.” Id. water to of any proposed appropriation of economic effect examine the welfare. protect public the Director directs the a which Legislature enacted statute The Nebraska environmental, economic, and other (1) the to consider: Water Resources use; (2) any impacts adverse transfer proposed inter-basin benefits of the use; (3) any uses current beneficial inter-basin transfer of the (4) any origin; the basin of water in being unappropriated of the made basin of water in the reasonably beneficial uses foreseeable future environmental, leaving the economic, other benefits of (5) origin; the uses; (6) alterna- beneficial origin or future for current basin of water (7) alternative applicant; and supply available of water tive sources uses. Neb. origin for beneficial the basin of water available to sources Rev. Stat. 46-289 § the statutes cited in the other states have defined the margin, interest in water and have a public suggested range matters broad -of factors that present being worthy themselves as of consider- any ation in in which controversy public it is claimed that interest is threatened.4 If the had defined the State statutory, public interest language and furnished by standards which he was going to evaluate claimed threats to the public 533.370(3), interest under NRS then he would have been in a position to have gone on and made the required findings of fact. From these he findings could have based a proper adjudication that was in 533.370(3). compliance NRS Because the State or, rather, failed to define the public because interest — he refused to abide instruction of the district court that he do so—the trial court thereby erred in affirming State Engi- neer’s approval of the permits in complete disregard necessary conditions imposed by Remand. The Engi- neer, rather clearly, granted should, permit which applications under NRS Chapter have been “refused.” STATE ENGINEER’S REFUSAL TO MAKE FACT FINDINGS
AND TO BALANCE COMPETING INTERESTS The root of most of the defects in the State Engineer’s adminis- trative handling of these is the applications absence of a workable definition of “threatens to prove detrimental to the public inter- est”; but there are other reasons why should be permits disallowed and the matter returned to the State Engineer. State Engineer’s refusal or failure to make the ordered “addi- tional findings” is also sufficient of itself to warrant sending case back to the State he Engineer, so that can do it right. I will not dwell on this other than point say that the trial court in its majority expresses great 4The concern about lack “[t]he might and the resources” costs to the state that arise out of the State Engineer’s conscientiously following making required the statute and adjudication particular pose public a does not use a threat to the nothing support majority’s conjectural interest. There is apprehensions; in the record to and, even, were, legislative if there this is matter. If the legislature were to protecting conclude that interest in water-use costly, matters is too repeal it is free to the statute that commands that the . . permits “shall . refuse to issue” which threaten to be detrimental to the not, date, 533.370(3); This court has considered the mandate of NRS say and it would seem safe to that the interest issue is not one that has cases, however, great been Engineer. trouble to the State In where massive exchanges raising inter-basin water protests are involved and bona fide filed, can, way interest issues are we see no in which the State structure, terms, present statutory defining under the finding avoid facts and issue, rendering adjudication applica- on this even when the merits of an affirmatively tion have governmental been treated local entities. *13 when it concluded that the “bald” obviously right Remand was these inter- by interest was not threatened finding that find- by be additional exchanges accompanied basin water “must evidentiary facts relied upon the basic ings concerning with the trial court that agree a conclusion. I also support” such conclusory finding permit judicial was “not sufficient such one) this “is reviewing (including that a court review” and factual bases for Engineer’s and review the State entitled to know Nova of no threat to the interest. See finding” Horizon Inc., on the of the part 105 Nev. P.2d 721. This failure remand to that administrative Engineer clearly State calls for a by this court to the agency approval given rather than the bland process. State derelictions in the administrative Engineer’s TO STATE ENGINEER’S FAILURE BALANCE COMPETING INTERESTS An even dereliction on the State significant part more future) (because of its dire in the is Engineer implications interests, pub- refusal to consider the Engineer’s competing by by lic that are filed private, presented protest versus These maintain by County. protestants Paiute Tribe and Lassen they Honey have offered unattended-to alternatives to the by Project exchanges approved Lake and to the inter-basin water pro- which are far superior approved rather than detrimental to the posal and which are beneficial to steadfastly interest. The State has refused to or to take into consider interests private competing and water conservation plans account alternative for water use offered protestants. (and
The State told the district court now tells this court) made authority that he had no to interfere with decisions he that he government assumption local and that acted in grant approvals was after compelled permits were made When the State Engineer local level. announced that he would not “interfere with decisions abdicating he was his responsibilities County,”5 Washoe and, well, 533.370(3) as under NRS responsibility under NRS 540.011(1), “critical nature of the state’s which declares the that the provides “policy limited water resources” and state and nonwasteful use of these encourage efficient [is] limited When the told the district court supplies.” that he did not have the to interfere decisions power matters, contra- County acting in water he was direct 533.370(3), him to issue a permit vention of NRS which does Ruling No. 3787A at Supplemental 5State 19. *14 “requested permit” if the “proposed use” threatens the public interest. If threatened, the public interest is it matters not what decision Washoe County or any other governmental subdivision might make relative to a proposed (as water use. If it is contended the here) is case that the proposed water use presents a threat to the interest of state, the people of this the State Engineer must weigh competing interests and then decide whether the public interest is and, threatened in the manner claimed if such a exists, threat must “refuse to issue the requested even permit,” though Washoe County had made a contrary decision.
It is clear that the State Engineer’s authority and his responsi- bility to protect this State’s “limited water resources” and to ensure “efficient and nonwasteful use of these supplies,” limited supersede all governmental local power. This is to say, course, that the State Engineer placed is in the position having choose to among all possible every water uses he time is faced a grant or do-not-grant decision on a water permit applica- tion. All that the statute requires the State Engineer in the controversy at hand is that he the define term “threatens to prove interest,” detrimental to the public that he make findings of fact relative to the protestants’ contention that the granting of the “proposed use” interest, was a threat to the public that he “balance” the competing public private interests called to his attention the protestants, that adjudicate he protestants’ the contention that the in question threatened prove to detri- interest, mental to the public he that furnish reasons his decisions. The did none of things. these The State Engineer claims that it is sufficient for him merely consider the “four corners” of the applications themselves that he has no duty go further than this. It is difficult to accept the contention that critical public interest issues presented by this case can be resolved merely by inspection of application documents themselves. Sound judgment as to permitting whether this massive inter-basin water is a transfer threat to the public interest cannot be made without some being given consideration to the alternatives offered by the protestants to the granting of this application. of a existence more desirable alternative is one of the
factors which enters into a determination of whether a par- ticular proposal would serve the public convenience and necessity. That Commission has no authority com- mand the alternative does not mean that it reject cannot proposal. City of Pittsburgh Comm’n, v. Federal Power 237 F.2d (D.C. 1956). case, n.28 Cir. In the present although the State alternative,” this authority no to command
Engineer “has reject proposal cannot that the State does not mean the public a threat to poses that the proposal if he determines herein) a number of inter- raised (appellants Protestants during evidence example, protestants presented est issues. For threat- change applications that hearings granting below a Lake and was nearby Pyramid ened to detrimental trout, fish, cutthroat the Lahontan to two danger species cui-ui, Testi- endangered species. and the an threatened species, would granting applications that mony presented was also wetlands, life and nearby plant effect on have adverse presented basin. Evidence was wildlife in and around the pollu- in increased dust could result approval applications can afford *15 nor the district court Obviously, tion. neither this court decrees absent some Engineer’s of the State meaningful a review foregoing public fact-findings discussion and issues. relative to the State interest issues public
Protestants also raised alternatives to the project refusal to consider available Engineer’s proceedings. that the administrative protestants during offered necessity of the “bal- The trial Remand out pointed court’s interests”; yet, Engineer the State ancing myriad competing alternatives, a refusal which protes- refused to consider proposed unnecessary, wasteful or uneconomical tants claim will result in water uses. any that he strongly suggestion has resisted Engineer State the water alternatives to obliged
is to consider available not his claiming job that it is exchanges approved, which he has mentioned, the usage. As optimum to make choices as to to decide stating obliged in that he is not Engineer is correct but this is not to which water uses is possible optimal; of several alternatives, he to examine available say obliged that is not on the making judgment a in a presented formally protest, as If, were to claim in a public example, protestant interest issue. first, granting application that hearing, an application effective, water and would would be wasteful of would not be cost second, and, effect that environmental extremely have an adverse all alternative would avoid such readily a available “threat[]s” interest, could not properly then the State protestant. the claims of such a Such legally turn a deaf ear on of fact that findings and for claims call for careful consideration that granting would conclusions justify threat to the public either was or was not a subject applications an alternative called to the State Protestants offered the “Negotiated Settlement.”6 The protestants claimed that rejec- tion of that alternative and granting of the applications would result in a threat of detriment to the public interest. Protestants claim that the offered alternative is manifestly superior to the now-approved multimillion Honey (which dollar Lake Project incurs a substantial expenditure) and would at produce least two-thirds more water. It from appears this record that the State Engineer has any refused to consider alternatives to the project. Without considering the Honey alternatives to the Lake Project presented by the protestants, the State Engineer was clearly unable to make an informed judgment as to whether granting applications threatens to prove detrimental to the public interest. course,
Of even if the State were to conclude that options proffered by protestants superior, economically were environmentally, to those accepted by County Engineer, the State this alone would not mean that the granting the applications necessarily threatened to detrimental to the interest. The point is that when come in and protestants furnish evidence of a water use that claim is plan they far superior County to that and the State accepted Engi- neer, the Engineer may ignore such evidence and is required give cognizance some to these claims. The State Engineer is not in a to make a considered or no position yes decision to whether a he present as interest threat is until If, made has some evaluation of the claims. for exam- opposing situation, ple, in a hypothetical granted had inter-basin told comparable permit by protestants was readily-available there was a alternative that would plan clearly conserve many per year evapo- thousands of acre-feet of water *16 loss, then, naturally, ration or other water the would be plan bound to take a look at such alternative to by applica- determine if the the accepting plan proposed pending tions be to the clearly public would wasteful and thus a threat 6The “Negotiated legislation Settlement” is passed by which was Congress. United States purposes The Negotiated (1) Settlement are: equitably to disputed waters; divide the (2) Tahoe river good to make obligations injured tribes; owed to the (3) American Indian to settle and avoid litigation; (4) improve and to the habitat of migratory local fish and water fowl. ends, To Negotiated these Settlement allocates the Lake Tahoe Basin waters, provides payments for Pyramid Tribe, to the Lake Indian provisions includes improve protect to wetland thorough habitat. For a Settlement, discussion Negotiated the reader is referred to E. Leif Reid, Ripples the Truckee: Congressional The Case Apportionment from Disputed Rights, Interstate Water (1995). 14 Stan. Envtl. L.J. 145
762
The decisions of local officials in water matters governmental might public’s in some instances to be a threat to the Legislature interest in water conservation. The has told the State Engineer that he must into matters to overall inquire relating interest in all water matters. In cases where the public permit public expressly by protestants issue of interest has been raised to it application, duty is the to make findings adjudicate and to interest issue to be required by considered of the statute. Under the language present he in the opinion having perform is freed future from to statutory duty.
PUBLIC TRUST DOCTRINE Before a user of water is allowed to use available prospective water, an for the to that water be application right use must filed Engineer. the State approved State Engineer’s refusal to consider alternatives to the is not consistent with the exercise of his functions as the trustee of water resources in Nevada and his to responsibility insure “all sources of water the . . . supply with state whether above or ground” beneath the surface of the is as an managed asset belonging to the NRS 533.025. In public.7 refusing consider any of the alternatives to the use presented protestants by the applicants, Engineer has violated his trust and has failed to consider interest in adequately public’s its resources. Consideration of alternatives is necessary in order permit State Engineer to make informed findings and conclusions rela- cost-effectiveness, tive to comparative efficiency, waste avoid- ance and environmental impact. public interest requires the largest possible economic use of state Ormsby waters. County v. Kearney, 37 Nev. (1914). P. 803 Whether the Honey Lake Project or the Negotiated Settlement or some other water use plan offers the most economic use of state waters is a question unanswered in these proceedings and ais question that should have been answered by the State Engineer. before, As mentioned the State Engineer has no authority alternative, to command the but the State Engineer does have the power reject a proposal in Doctrine, government, 7Under the Public Trust the state as trustee all resources, fiduciary obligation general natural owes maintain countervailing uses unless an alternative use would achieve a public 709, Super. Cty, benefit. See Alpine Nat. Audubon Soc. v. Ct. of 658 P.2d Thus, (Cal. 1983). protect Public Trust Doctrine serves to public expectations against destabilizing in natural held in resources common Sax, change. Joseph Liberating L. the Public Trust Doctrine Its Histori from Shackles, cal 14 U.C. Davis L. Rev. *17 cases, for example, where there are clearly superior alternatives. case, In such a the public interest would not be served by approving a substantially inferior and wasteful proposal. The State Engineer’s failure or refusal find facts and his various, failure or refusal to balance conflicting public private presented by interests the protestants invalidate all of the administrative proceedings and decisions of the State Engineer. The State Engineer is guilty of a number clear violations of Nevada’s water law and particularly failing comply public interest requirements 533.370(3). of NRS Under such circumstances it is difficult to see how the State Engineer’s granting of these permits can possibly be permitted to stand.
CONCLUSION This appeal involves purely legal questions which can be decided this court “without deference agency’s deci- State, Administration, sion.” v. Mirage 257, Dep’t of 110 Nev. 871 P.2d only Not did act Remand, in defiance to the trial court’s clearly acted in contravention of Nevada water law and in viola- tion 533.370(3). of NRS I have enumerated a number of errors of law which call for reversal and for a remand to the State Engi- neer; but the consequence of this decision me the gives most concern is that allowed, henceforth the is if not directed, to ignore the clear 533.370(3) mandate of NRS relative to the interest of all in making Nevadans the best possible use of their limited water resources. This is unfortunate. The judgment of the majority of this court “threatens to prove detrimental to the interest”; therefore, I dissent. PALMER,
RICHARD LEE Appellant, v. THE Respondent. NEVADA, STATE OF
No. 26842
June