UNITED STATES OF AMERICA, APPELLANT, v. STATE ENGINEER, STATE OF NEVADA, RESPONDENT.
No. 32740
IN THE SUPREME COURT OF THE STATE OF NEVADA
July 24, 2001
27 P.3d 51
I do not believe that the Legislature has enacted a statute which violates the Due Process Clause of either the United States or the Nevada Constitutions. Finger‘s judgment of conviction should be affirmed.
United States Department of Justice, Environment and Natural Resources Division, and Andrew C. Mergen and Stephen G. Bartell, Washington, D.C., for Appellant.
Frankie Sue Del Papa, Attorney General, and Marta A. Adams, Deputy Attorney General, Carson City, for Respondent.
OPINION
Per Curiam:
This appeal requires us to examine the scope and constitutionality of
On appeal, the BLM contends that the plain language of
FACTS
On April 7, 1997, the State Engineer issued Ruling No. 4519, denying nine applications filed by the BLM for permits to appropriate public waters in Douglas County, Nevada. These applications were filed between 1991 and 1994. The BLM also has approximately ninety additional stockwater permit applications pending with the Office of the State Engineer. The nine applications sought to appropriate water from Red Canyon Springs, 5 O‘clock Spring, Pinyon Spring, Buena Suerte Spring, and Winter‘s Mine Springs. The springs are located on BLM managed public lands within Douglas County, Nevada. The applications indicated that the water would be primarily appropriated for stockwatering purposes, with a minor amount of water to be used for the secondary purposes of wildlife and recreational use. The BLM filed the applications in the name of the appellant, United States.
In the applications, the BLM does not assert that it owns, or has a proprietary interest in any livestock that would be benefited by a stockwatering permit. The applications state that the BLM desires to appropriate the water for purposes of granting water rights to individuals seeking to obtain grazing permits from the BLM. If granted, the BLM, rather than the State of Nevada,
The State Engineer found that the sources of water sought to be appropriated by the BLM would not interfere with existing water rights because they are isolated springs and not tributaries to other surface water sources on which there are existing water rights. The State Engineer concluded, however, that the BLM was not a qualified applicant for a stockwater permit. The State Engineer‘s determination was based upon an opinion issued by the Nevada Attorney General‘s office, dated February 11, 1997, which concluded that
The BLM petitioned the district court for judicial review of the State Engineer‘s denial of its permit applications. Following a hearing, the district court denied the petition and affirmed the State Engineer‘s decision. The BLM timely appealed.1
DISCUSSION
The BLM contends that the plain language of
- The state engineer shall not issue:
- A permit to appropriate water for the purpose of watering livestock on public lands unless the applicant for the permit is legally entitled to place the livestock on the public lands for which the permit is sought.
- A certificate of appropriation based upon a permit to appropriate water for the purpose of watering livestock on public lands unless the person who makes satisfactory proof that the water has been beneficially used is legally entitled to place on the land the livestock which have been watered pursuant to the permit.
- This section must not be construed to impair the vested right of any person to the use of water for the purpose of watering livestock or to prevent any transfer of ownership of a water right for the purpose of watering livestock.
(Emphasis added.)
To the contrary, the State Engineer contends that “legally entitled to place the livestock on the public lands for which the permit is sought” means that the applicant must have a legal right to place livestock on public lands. Livestock cannot be placed upon public lands without a grazing permit or lease. Thus, the State Engineer reasons that since the United States, through the BLM, does not possess either a grazing permit or lease, it cannot qualify for a stockwater permit.
Statutory construction is a question of law which this court reviews de novo. See Associated Bldrs. v. So. Nev. Water Auth., 115 Nev. 151, 156, 979 P.2d 224, 227 (1999). However, the appropriation of water in Nevada is governed by statute, and the State Engineer is authorized to regulate water appropriations. See
The United States asserts that the State Engineer erred because he went beyond the plain meaning of the statute in construing the statute. We agree. While it is true that an administrative agency‘s interpretation of its own regulation or statute is entitled to consideration and respect—especially where, as here, the State Engineer has a special familiarity and expertise with water rights issues—it is well established that “[w]hen the language of a statute is plain and unambiguous, a court should give that language its ordinary meaning and not go beyond it.” City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989). “[A]n [administrative] agency‘s interpretation of a regulation or statute does not control if an alternative reading is com-
CONCLUSION
We conclude that the phrase “legally entitled to place the livestock on the public lands for which the permit is sought” in
BECKER, J., concurring in part and dissenting in part:
I disagree with the majority‘s conclusion that
If only the words “legally entitled” are considered in interpreting the statute, then the United States would be correct in asserting the plain-meaning doctrine. However, the statute does not state, as argued by the BLM, that an applicant must be legally entitled to place livestock on public lands. The statute states that an applicant must be “legally entitled to place the livestock on the public lands for which the permit is sought.”
In this context, “legally entitled” might reasonably apply as a qualifier to the words “the livestock” rather than to the words “on the public lands.” This suggests that an applicant must have a legal right or proprietary interest in the livestock to be watered by the permit as opposed to the legal right to place the livestock on the public lands. In other words, an applicant must have control over the livestock, not the land.
The United States does not have a legal interest in the livestock to be watered under the applications. The applications seek permission to water certain numbers of livestock or wildlife in a generic fashion. The BLM is not authorized by Congress to raise livestock in the name of the United States. Therefore, the BLM, as an agent of the United States, would not be able to qualify for a stockwater permit in the sole name of the United States. Based upon a review of the Legislative history surrounding the enactment of
I. Historical perspective
Nevada‘s water law, like that of other western states, is exclusively based on the prior appropriation doctrine, which recognizes water rights based on the time of use, as well as actual use, of water without regard to the ownership of land contiguous to a water course. The common law doctrine of riparian rights, where control over water is tied to ownership of land, has been completely abrogated in Nevada. At common law, a landowner had control over the waterways passing over or under his or her land under the riparian rights doctrine. Decisions regarding the use and management of the water were left to the discretion of the individual landowner.
There are two classes of surface water rights by appropriation in Nevada: (1) vested rights, which were initiated during the early days of the state‘s development before any definite laws concerning appropriation of water existed; and (2) appropriation rights under which water is appropriated and beneficially used by virtue of permits granted by the State Engineer upon due application made to his office. See
Because the federal government owns a large amount of the land situated within Nevada, citizens have frequently expressed concern that decisions regarding the management of those lands will be made by national agencies without considering the detrimental impact such decisions may have within the state. For example, prior to the enactment of the Taylor Grazing Act, ch. 865, 48 Stat. 1269-1275 (1934) (codified as amended at
As Nevada‘s population has grown, apprehension over control of water rights has resulted in the development of new policies or procedures for managing water resources. Prior to 1980, the BLM had a policy of asserting control over the development of water rights on lands managed by the BLM. The BLM failed to comply with state law regarding the development of water rights and, as
The actions of the BLM were looked upon with disfavor because they permitted the United States to obtain the water rights and then reallocate them amongst competing interests without input from the State Engineer. The United States would also determine how much of the permitted water to allocate at any given time.
In response, the State Engineer implemented an informal policy (known as the “three-way system“) to deal with the allocation of water rights on federal land. The three-way system allowed water rights for watering livestock on public lands to be acquired and perfected by the range user, the federal government, or jointly by the range user and the federal government depending upon who developed the water right.
A permit allows the applicant to develop the water rights, i.e., drill a well, etc. Before a certificate of appropriation is issued, the permit recipient must demonstrate that any improvements have been completed and the water has been put to the beneficial use indicated in the application for the permit. This latter process is the perfection of the right. Whether the permit was issued jointly or individually depended upon who was developing the water right and the specifics of the beneficial use. The State Engineer encouraged the United States to utilize joint applications whenever possible and the BLM frequently accommodated the state in this regard.2
Periodic actions were taken to prohibit the federal government from obtaining water rights in its own name. For example, in State v. State Engineer, 104 Nev. 709, 715, 766 P.2d 263, 267 (1988), arguments were made that the federal government could not demonstrate it was putting water to a beneficial use because it did not own the livestock to be watered. This court, however, held that the United States was a person under the statutory scheme then in existence and was entitled to be treated as any other person applying for a water permit. Id. at 717. Since the statute did not require applicants to own the livestock to be watered, such a requirement could not be imposed upon the United States.
Thus, for a number of years, the BLM was issued stockwatering permits in either its own name or jointly with the entity grazing the livestock. In the early 1990s, the federal government, in a desire to improve the management of federal lands, embarked on a course of action that became known as “Rangeland Reform.”
Any right acquired on or after August 21, 1995, to use water on public land for the purpose of livestock watering on public land shall be acquired, perfected, maintained and administered under the substantive and procedural laws of the State within which such land is located. To the extent allowed by the law of the State within which the land is located, any such water right shall be acquired, perfected, maintained, and administered in the name of the United States.
Id.
The interim study committee expressed concern with the language in the proposed regulation that directed the federal government to exercise substantial control over water used for livestock watering on public land. To the committee, this appeared to be an attempt by the federal government to interfere in the management of Nevada‘s water. As a result, the interim committee issued a report recommending that the Legislature enact laws formalizing existing policies of the State Engineer with respect to the issuance of stockwater permits to the BLM.
The proposed federal regulations also created concern within the state‘s Department of Conservation and Natural Resources. The Department was apprehensive about the language in the proposed regulation which stated that “[t]o the extent allowed by the law of the State” water was to be “acquired, perfected, maintained, and administered in the name of the United States.” Id. Because the existing three-way system was only an informal policy of the State Engineer, the Department believed the three-way system needed to be codified to prevent the United States from using the language of the regulation as grounds for asserting complete control over the stockwatering rights on public lands.
Senate Bill 96 was assigned to the Senate Natural Resources Committee. The Committee received advice from the Legislative Counsel Bureau‘s office that Nevada‘s ability to continue to utilize the three-way system in light of the new federal regulations depended on its adopting the system statutorily. While the bill was originally intended to simply codify the existing policies, at the subsequent hearings on the bill the entire issue of the propriety of issuing stockwatering permits to the United States was debated.
As a result of hearings before the Natural Resources Committee and the Assembly Committee on Government Affairs, significant changes to the initial language of proposed S.B. 96 were made. The final version of S.B. 96 did not codify the then-existing three-way system. Instead, it created a new policy for the issuance of stockwatering permits on public lands. This policy, now codified as
- The state engineer shall not issue:
- A permit to appropriate water for the purpose of watering livestock on public lands unless the applicant for the permit is legally entitled to place the livestock on the public lands for which the permit is sought.
- A certificate of appropriation based upon a permit to appropriate water for the purpose of watering livestock on public lands unless the person who makes satisfactory proof that the water has been beneficially used is legally entitled to place on the land the livestock which have been watered pursuant to the permit.
- This section must not be construed to impair the vested right of any person to the use of water for the purpose of watering livestock or to prevent any transfer of ownership of a water right for the purpose of watering livestock.
(Emphasis added.)
II. Statutory construction of NRS 533.503
When a statute is ambiguous, it should be construed consistent “‘with what reason and public policy would indicate the legislature intended.‘” Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983) (quoting Cannon v. Taylor, 87 Nev. 285, 288, 486 P.2d 493, 495 (1971), adhered to, withdrawn in4
Several factors can be used to determine legislative intent. The title of a statute can be considered. See A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248, 1250 (1971). Other words or phrases used in the statute or separate subsections of the statute can be reviewed to determine the meaning and purpose of the statute. See Bd. of County Comm‘rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983). Legislators’ statements can be considered in construing the statute when they are a reiteration of events leading to the adoption of the statute rather than an expression of personal opinion. Khoury v. Maryland Casualty Co., 108 Nev. 1037, 1040, 843 P.2d 822, 824 (1992), disapproved of on other grounds by Breithaupt v. USAA Property and Casualty, 110 Nev. 31, 867 P.2d 402 (1994). Finally, the subject matter of the statute and the policy to be effectuated can be used in statutory construction. See Welfare Div. v. Washoe Co. Welfare Dep‘t, 88 Nev. 635, 503 P.2d 457 (1972).
During the course of several hearings, a number of proposed amendments to S.B. 96 were debated and discussed by members of the Legislature. While such comments alone would not be indicative of legislative intent, the failure to adopt many of the proposed changes and the adoption of the final language of the bill is relevant in determining legislative intent.
The comments, together with the consideration of the various proposed amendments, demonstrate that the lawmakers intended to eliminate the three-way system of issuing stockwater permits. Instead, the Legislature desired to create a new system that would prohibit the BLM from obtaining a stockwatering permit in its own name, unless it had some legal or proprietary interest in the livestock to be watered under the permit. The Legislature wanted to preserve state primacy over water rights without unconstitutionally discriminating against the federal government.
First, the Legislature was concerned that Rangeland Reform was an attempt by the federal government to undermine its long-standing policy of deference to the states in the area of water law. Thus, the Department of Conservation and Natural Resources lobbied for a legislative preference for the three-way system of stockwater allocation, rather than have all stockwater permits issued in the sole name of the BLM. Therefore, the original version of S.B. 96, provided in part, that:
Section 1. Chapter 533 of NRS is hereby amended by adding thereto a new section to read as follows:
When issuing a certificate of appropriation pursuant to NRS 533.425 for the right to use water for the purpose of watering livestock on public land, the state engineer shall issue the certificate of appropriation:
- If the application was perfected by a person other than the Federal Government, in the name of that person;
- If the application was perfected by the Federal Government, in the name of the Federal Government; or
- If the application was perfected jointly by a person other than the Federal Government and by the Federal Government, in the name of that person and the Federal Government jointly.
- As used in this section, “Federal Government” includes any agency, department, instrumentality or corporation of the Federal Government.
S.B. 96, 68th Leg. (Nev. 1995).
When Senator Mark James introduced S.B. 96 to the Natural Resources Committee on February 27, 1995, he indicated that the measure was intended to codify the informal three-way system for issuing stockwater permits that the State Engineer had utilized since the 1980s. This system would allow a rancher to apply for a water right independently, a federal land management agency to apply independently, or the rancher and federal land management agency to apply in conjunction with each other. Senator James noted that his understanding of S.B. 96 was that “if the federal government owned cows which were being watered on their land, then they could get water rights solely in the name of the federal government . . . [but] it seems the government could never get water rights in their name unless they have livestock.‘’5
However, HRBWA lobbyist Mike Baughman expressed concern at the hearing that codifying the three-way system would not be in Nevada‘s best interest, because it would inadvertently facilitate the federal government‘s reform policy of acquiring all water rights solely in the name of the United States. Baughman noted that while the BLM had been cooperating with the State Engineer in filing joint applications, the new federal regulation would compel the BLM to file all applications in the sole name of the United States, if that were permitted under state law.
In response, Senator James indicated that the interim study committee considered a bill that outright prohibited the BLM from acquiring stockwater permits in its name. However, the interim committee felt that the language of the bill draft submitted by the Department of Conservation and Natural Resources clearly expressed the legislative intent which was that “if every-
Subsequently, at the March 15, 1995, hearing, Baughman presented the committee with a report detailing the applications, permits and certificates involving stockwater and the BLM. The report indicated the number of permits issued solely in the name of the BLM, as well as the number of joint permits issued. Baughman argued that the United States would no longer seek joint permits due to Rangeland Reform, which would be a substantial change in current practice. Thus, Baughman encouraged the committee members to amend S.B. 96 to eliminate the three-way system. Instead, Baughman proposed that the legislature codify a two-way system. The BLM would only be able to obtain a joint permit with persons having an interest in the livestock.7 Baughman proposed the following amendment to S.B. 96:
Section 1. Chapter 533 of NRS is hereby amended by adding thereto a new section to read as follows:
- Whenever, pursuant to the provision of this chapter, the federal government seeks to appropriate water to support livestock watering on public lands, the state engineer shall require that applications for such water be filed jointly by the federal government and the permittee having authorization to graze livestock on said lands.
- [1.] When issuing a certificate of appropriation pursuant to
NRS 533.425 for the right to use water for the purpose of watering livestock on public land, the state engineer shall issue the certificate of appropriation:
- If the application was perfected by a person other than the Federal Government, in the name of that person;
- If the application was perfected jointly by a person other than the Federal Government and by the Federal Government, in the name of that person and the Federal Government, jointly. [If the application was perfected by the Federal Government, in the name of the Federal Government; or]
- [(c) If the application was perfected jointly by a person other than the Federal Government and by the Federal Government, in the name of that person and the Federal Government jointly.]
[2.] As used in this section, “Federal Government” includes any agency, department, instrumentally [sic] or corporation of the Federal Government.
Hearing on S.B. 96 Before Senate Natural Resources Comm., 68th Leg. (Nev., February 27, 1995); Hearing on S.B. 96 Before Senate Natural Resources Comm., 68th Leg. (Nev., March 15, 1995).
Committee members discussed the proposed amendment, and Senator Dean Rhoads, Chairman of the Natural Resources Committee, asked Mike Turnipseed, the State Engineer, why the BLM would receive stockwater certificates if it does not own the livestock for which the permit is sought. Turnipseed answered that the determination to grant certificates of appropriation to the BLM resulted from this court‘s decision in State v. State Engineer, 104 Nev. 709, 766 P.2d 263 (1988), which led the State Engineer to treat the federal government “as fairly as any other appropriator.‘’8
Following Turnipseed‘s remarks, Senator James commented that, when considering the bill draft, the interim study committee was under the erroneous impression that the BLM had not been filing applications for stockwater permits solely in its name. The Senate Committee then discussed enacting a two-way system, and Senator James indicated that S.B. 96 would have to be amended, stating that he “did not know that the federal government could file for [the watering of] livestock when it did not own any livestock.‘’9
No action was taken on the bill. At an additional hearing on June 9, 1995, Baughman presented the Committee with another proposed version of S.B. 96 which stated:
Section 1. Chapter 533 of NRS is hereby amended by adding thereto a new section to read as follows:
- Whenever, pursuant to the provisions of this chapter, a governmental entity responsible for administration of public lands seeks to appropriate water to support livestock watering on public lands, the state engineer shall require that applications for such water be filed jointly by the governmental entity responsible for administration of public lands
and the permittee having authorization to graze livestock on said lands.
- [1.] When issuing a certificate of appropriation pursuant to
NRS 533.425 for the right to use water for the purpose of watering livestock on public land, the state engineer shall issue the certificate of appropriation:
- If the application was perfected by a person other than a governmental entity responsible for administration of public lands [the Federal Government], in the name of that person;
- If the application was perfected jointly by a person other than a governmental entity responsible for administration of public lands and by the governmental entity responsible for administration of public lands, in the name of that person and the governmental entity responsible for administration of public lands, jointly. [If the application was perfected by the Federal Government, in the name of the Federal Government; or]
- [(c) If the application was perfected jointly by a person other than the Federal Government and by the Federal Government, in the name of that person and the Federal Government, jointly.]
- [2.] As used in this section, “governmental entity responsible for administration of public lands” [“Federal Government“] includes any agency, department, instrumentally [sic] or corporation of a local government, the State of Nevada or the Federal Government.
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., June 9, 1995).
Peter Morros, Director of the State Department of Conservation and Natural Resources, expressed concern regarding the constitutionality of this version. Morros questioned whether the proposed language was consistent with the State v. State Engineer decision. Morros also expressed similar concerns at previous hearings.10 Morros commented that the current three-way system for issuing stockwater rights permits worked well, and that he felt prolonged litigation would result and obstruct this system if the federal government was precluded from acquiring stockwater permits in its own name. The Committee agreed to hold the bill for further work prior to voting on it.
The next hearing was held on June 12, 1995. Morros again expressed concern over the constitutionality of a bill that would preclude the federal government from acquiring stockwater per-
No party holding a stock water right on lands managed by a public agency may deny access to that water to wildlife or to any livestock authorized to graze in the area.
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., June 12, 1995).
Committee members expressed dissatisfaction with Morros’ proposed amendment because it “would still give a lot of room for the federal government entities to secure water under their name.” Id.
At that same hearing, Gordon DePaoli, a lobbyist with Sierra Pacific Power Company, offered still another amendment to S.B. 96 as follows:
Amend the bill as a whole by deleting page 1, lines 1 through 25, and page 2, lines 1 through 3, and substituting:
- Whenever, pursuant to the provisions of this chapter, an application is made for a permit to appropriate water for watering livestock on public lands, the state engineer may not issue a permit therefor or a certificate based upon a permit so issued, unless the person applying for the permit or proving beneficial use is the owner of the livestock to be watered or which have been watered pursuant to the permit.
- Nothing in this section is intended to impair the vested right of any person to the use of water for watering livestock nor shall it prevent the transfer of ownership of a water right for watering livestock.
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., June 12, 1995).
While DePaoli‘s version alleviated Morros’ concerns regarding discrimination against the federal government, the new language posed its own problems. Specifically, it would preclude a private landowner who leased pasture for grazing from acquiring rights for watering livestock. In addition, Turnipseed commented that, under DePaoli‘s version, ranchers who finance their livestock through banks would be precluded from obtaining stockwater permits if the bank actually owns their livestock or has a security interest in the livestock. Finally, grazing associations do not own the livestock, so they would be precluded from obtaining stockwater permits if the issuance of permits was based on livestock ownership. Id.
No resolution was reached and the bill was passed until June 14, 1995. At that hearing, Turnipseed suggested another amendment to S.B. 96 that stated:
When an application is filed with the state engineer for livestock water on federal lands:
- The state engineer shall notify the land management agency as well as all livestock lessees or permitees of record.
- Any notified party will have the opportunity to file a concurrent application on the same source.
- If the concurrent applications meet the criteria set forth in [Nevada Revised Statutes]
NRS 533.370 , all must be approved with the same priority.- If at a later date, a change application is filed by any of the holders of such concurrent rights, the state engineer shall give notice to all other holders of concurrent rights on the same source.
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., June 14, 1995).
Turnipseed explained that the amendment was essentially a notice provision that would make private ranchers and the federal government aware of any permit or certificate changes on a water source. Although the Natural Resources Committee noted that Turnipseed‘s proposed amendment had merit, it eventually moved to amend and pass S.B. 96 with changes proposed by the Legislative Counsel Bureau which replaced the language “owner of the” suggested in DePaoli‘s proposed amendment with the phrase “person legally entitled to place [livestock] on the [public] land.” Id. The bill was then passed, as amended, by the full Senate and introduced to the Assembly. It was then referred to the Assembly Government Affairs Committee.
The Government Affairs Committee made some additional amendments to the bill on issues unrelated to the concepts of legal entitlement, and voted to pass S.B. 96 on June 27, 1995. In its final version, S.B. 96, as amended by Amendment No. 1070 provided, in pertinent part, that:
Amend section 1, page 1, by deleting lines 3 through 14 and inserting:
- The state engineer shall not issue:
- A permit to appropriate water for the purpose of watering livestock on public lands unless the applicant for the permit is legally entitled to place the livestock on the public lands for which the permit is sought.
- A certificate of appropriation based upon a permit to appropriate water for the purpose of watering livestock on public lands unless the person who makes satisfactory proof that the water has been beneficially used is legally entitled to place on the land the livestock which have been watered pursuant to the permit.
This section must not be construed to impair the vested right of any person to the use of water for the purpose of watering livestock or to prevent any transfer of ownership of a water right for the purpose of watering livestock. S.B. 96, 68th Leg. (Nev. 1995).
In light of the legislative history, I conclude that the legislature intended the phrase “legally entitled to place the livestock on the public lands for which the permit is sought” in
III. Constitutionality of NRS 533.503
Having concluded that
The constitutionality of a state statute is analyzed de novo by this court, beginning with the presumption that a legislative enactment is constitutional. See List v. Whisler, 99 Nev. 133, 137-38, 660 P.2d 104, 106 (1983). If reasonably possible, this court should construe the statute so as to render it constitutional, and the party challenging the statute bears the burden of establishing that it is unconstitutional. See id.
The claims of the United States focus on two issues. The first is that the State Engineer has interpreted the term “public lands” as used in the statute to mean only those lands managed by the BLM. The statute does not govern other lands owned by the United States, but managed by a different agency such as the Forestry Service, or lands owned by the State of Nevada. Thus, the limitations requiring an applicant to have a legal interest in the livestock to be watered apply only to land managed by the BLM.
The second issue involves the concept of the term “legally entitled,” and the decision by the Attorney General and the State Engineer that the United States may not obtain a stockwater per-
The United States Supreme Court held long ago that a state law violates the Supremacy Clause of the United States Constitution if it regulates the federal government directly or discriminates against it, or those with whom it deals. See McCulloch v. Maryland, 17 U.S. 316 (1819). However, a state law that indirectly regulates or affects the federal government‘s activity is not unconstitutional per se. In such cases, the Supreme Court has adopted a functional approach to claims of governmental immunity, accommodating each sovereign‘s legislative authority and respecting the primacy role of Congress in resolving conflicts between the national and state governments. See North Dakota v. United States, 495 U.S. 423, 434-35 (1990). This body of law is generally referred to as the intergovernmental immunities doctrine.
When analyzing whether a state law discriminates against the federal government, the state law should not be viewed in isolation and the entire regulatory system should be analyzed to determine whether it is discriminatory. North Dakota, 495 U.S. at 435. Moreover, it is not appropriate to look only at those provisions of the state law addressing the federal government or those with which it deals. See id. at 438. A state law that appears to treat the federal government differently on the most specific level of analysis may, in its broader regulatory context, not be discriminatory if the state law does not treat the federal government any worse than it treats any other entity affected by the law. That is, the federal government is not placed at a disadvantage in comparison to any other entity. See id.
Finally, a state law may violate the Supremacy Clause if it “actually and substantially interferes with specific federal programs.” North Dakota, 495 U.S. at 452 (citations omitted).
A. Public lands and the Supremacy Clause—United States as a landowner
The United States first contends that the provisions of
The United States also contends that the statute, as interpreted, is discriminatory because it places the BLM in a worse position than any other landowner seeking to develop stockwater rights upon their property. In response, the State Engineer argues that the United States is only considering a very narrow portion of the statutory scheme involving the appropriation of water in Nevada, and that North Dakota requires the court to review
Turning first to the statute itself, I conclude that it is not discriminatory on its face. Although
When considered in the context of livestock water only, the statute clearly treats the United States (BLM) as a landowner differently than all other landowners in the state. However, the United States has not demonstrated that this distinction, in and of itself, places the United States (BLM) at a disadvantage versus any other landowner who wishes to use his land to water his livestock. This difference, alone, is not enough to constitute a discriminatory practice in violation of the Supremacy Clause.
Moreover, the distinction becomes even more insignificant when considered in light of Nevada‘s entire water appropriation scheme. Only the BLM‘s right to use the water for livestock purposes is affected; the BLM is not treated differently than any other landowner with respect to other permitted uses.
I conclude that
Even if
Alternatively, the BLM contends that this burden violates the pre-emption doctrine as discussed by Justice Brennan in his concurrence and dissent in North Dakota.
The State Engineer argues that Congress has not expressly preempted state law concerning water rights on federal land and has, in fact, deferred to the states in this regard. In addition, the State asserts that the Rangeland Reform regulations only establish a policy of United States ownership of water rights if permitted by state law. Thus, Nevada‘s statutory scheme cannot be discriminatory in violation of the intergovernmental immunities doctrine, or a significant impairment of a federal policy or program in violation of the pre-emption doctrine.
I agree with the State that the federal government has not expressly pre-empted state law on this issue. Moreover, when considering the livestock watering regulations under Rangeland Reform, the federal government contemplated that the definitions of qualified applicants and beneficial use would be addressed through state law. See Water Rights for Purpose of Livestock Grazing on Public Lands,
However, nothing in the commentary to the federal regulations indicates that the United States contemplated a situation in which the BLM would be prohibited from applying for livestock watering rights not only under its own name, but also jointly with livestock grazers. Thus, the United States is still free to argue that the restrictions of
While the statute on its face does not bar the BLM from being a qualified applicant in its own name, it has that effect because the BLM is not a person “legally entitled to place the livestock on the public lands.” This provision, together with the fact that the statute, as interpreted by the State Engineer, only applies to lands managed by the BLM, arguably poses a greater impact upon the issue of discrimination than that created solely by the restrictive interpretation of the phrase “public lands.”
Even considering the two aspects together, I still conclude that the United States has not shown how it is so disadvantaged by the inability to obtain a permit in its own name, that it is being dis-
I reach a different conclusion on the constitutionality of the statute, however, when considering the issue of joint applications. If
The BLM is required by Congress to develop the resources upon the public lands under its control. These resources are to be developed so as to maximize the use of the land while conserving it for future generations. Public Rangeland Improvement Act,
Under List v. Whisler, 99 Nev. 133, 660 P.2d 104 (1983), we strive to construe statutes so as to avoid rendering them unconstitutional. Thus I would construe the statute to permit joint applications. Moreover, I am not persuaded that
Except as otherwise provided in
NRS 533.503 , as soon as practicable after satisfactory proof has been made to the state engineer that any application to appropriate water or any application for permission to change the place of diversion, manner or place of use of water already appropriated has been perfected in accordance with the provisions of this chapter, the state engineer shall issue to the holder or holders of the permit a certificate . . . .
The idea of multiple permit holders was a part of the 1995 amendments to the Adjudication of Water Rights chapter of the Nevada Revised Statutes. The changes to
While this fact is significant in determining the legislative intent, the plain language of the statute contemplates multiple or joint holders of permits and certificates. The Attorney General‘s opinion, as adopted by the State Engineer, concluded that because
CONCLUSION
I conclude that the phrase “legally entitled to place the livestock on the public lands for which the permit is sought” in