Filed: Aug. 20, 2018
Latest Update: Mar. 03, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MINERAL COUNTY, No. 15-16342 Intervenor-Plaintiff- Appellant, D.C. No. 3:73-cv-00128-RCJ- WALKER LAKE WORKING WGC GROUP, Defendant-Appellant, ORDER AND and AMENDED ORDER CERTIFYING UNITED STATES OF AMERICA, QUESTIONS TO THE Plaintiff, SUPREME COURT OF NEVADA WALKER RIVER PAIUTE TRIBE, Intervenor-Plaintiff, v. WALKER RIVER IRRIGATION DISTRICT; NEVADA DEPARTMENT OF WILDLIFE; FENILI FAMILY TRUST, c/o Peter Fenili and Veronica Feni
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MINERAL COUNTY, No. 15-16342 Intervenor-Plaintiff- Appellant, D.C. No. 3:73-cv-00128-RCJ- WALKER LAKE WORKING WGC GROUP, Defendant-Appellant, ORDER AND and AMENDED ORDER CERTIFYING UNITED STATES OF AMERICA, QUESTIONS TO THE Plaintiff, SUPREME COURT OF NEVADA WALKER RIVER PAIUTE TRIBE, Intervenor-Plaintiff, v. WALKER RIVER IRRIGATION DISTRICT; NEVADA DEPARTMENT OF WILDLIFE; FENILI FAMILY TRUST, c/o Peter Fenili and Veronica Fenil..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINERAL COUNTY, No. 15-16342
Intervenor-Plaintiff-
Appellant, D.C. No.
3:73-cv-00128-RCJ-
WALKER LAKE WORKING WGC
GROUP,
Defendant-Appellant,
ORDER AND
and AMENDED ORDER
CERTIFYING
UNITED STATES OF AMERICA, QUESTIONS TO THE
Plaintiff, SUPREME COURT OF
NEVADA
WALKER RIVER PAIUTE
TRIBE,
Intervenor-Plaintiff,
v.
WALKER RIVER IRRIGATION
DISTRICT; NEVADA
DEPARTMENT OF WILDLIFE;
FENILI FAMILY TRUST, c/o
Peter Fenili and Veronica
Fenili, Trustees; SIX N
RANCH, INC., c/o Richard and
Cynthia Nuti; MICHAEL NUTI;
NANCY NUTI; RALPH E. NUTI;
MARY E. NUTI; LAWRENCE
2 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
M. NUTI; LESLIE NUTI; MICA
FARMS, LLC, c/o Mike
Faretto; JOHN AND LURA
WEAVER FAMILY TRUST, c/o
Lura Weaver, Trustee; SMITH
VALLEY GARAGE, INC., c/o
Dan Smith and Shawna
Smith; DONALD GIORGI;
LORIE MCMAHON; MERLE
MCMAHON; CENTENNIAL
LIVESTOCK; LYON COUNTY;
ANNETT’S MONO VILLAGE;
F.I.M. CORPORATION; R.N.
FULSTONE COMPANY; JAMES
T. FOUSEKIS, Trustee; CHRIS
H. GANSBERG, JR.; FAYE E.
GANSBERG; TODD
GANSBERG; HUNEWILL LAND
& LIVESTOCK CO., INC.;
DAVID SCEIRINE; PAMELA
HAAS; VIRGINIA LAKE
MUTUAL WATER COMPANY;
MONO COUNTY, County
Counsel,
Defendants-Appellees.
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 3
Filed May 22, 2018
Amended August 20, 2018
Before: A. Wallace Tashima, Raymond C. Fisher
and Jay S. Bybee, Circuit Judges.
Order;
Amended Order
SUMMARY*
Water Rights
The panel amended the certification order, filed on May
22, 2018, in an appeal raising issues pertaining to Nevada
state water law. The panel certified to the Supreme Court of
Nevada the following questions:
Does the public trust doctrine apply to rights
already adjudicated and settled under the
doctrine of prior appropriation and, if so, to
what extent?
If the public trust doctrine applies and allows
for reallocation of rights settled under the
doctrine of prior appropriation, does the
abrogation of such adjudicated or vested
rights constitute a “taking” under the Nevada
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
Constitution requiring payment of just
compensation?
ORDER
The certification order filed May 22, 2018, and reported
at 890 F.3d 1174, is amended. An amended certification
order is filed concurrently with this order.
AMENDED ORDER1
Pursuant to Rule 5 of the Nevada Rules of Appellate
Procedure, we respectfully certify to the Supreme Court of
Nevada the questions of law set forth in Section III of this
order. The answers to the certified questions may determine
issues pending before this court and their resolution will have
significant implications for Nevada state water law. There is
no clearly controlling precedent in the decisions of the
Nevada Supreme Court.
We hold Mineral County’s public trust claim for the
reallocation of the waters of Walker River and the Takings
Clause claim in abeyance pending the result of certification.
1
This amended Order supersedes the published Order filed May 22,
2018.
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 5
I. Background
The circumstances here are virtually identical to those
that led to the Nevada Supreme Court’s decision in Mineral
County v. Nevada Department of Conservation & Natural
Resources, 20 P.3d 800, 802–05 (Nev. 2001), in which
Mineral County and the Walker Lake Working Group (the
“Working Group”) brought essentially the same suit as this
one. In Mineral County, the Nevada Supreme Court
ultimately declined to exercise jurisdiction in light of the
federal district court’s continuing and exclusive jurisdiction
over the Walker River Basin litigation. See
id. at 807. We
reproduce the relevant background here in brief.
A. The Walker River Basin and Walker Lake’s Decline
The Walker River Basin covers about 4000 square miles,
running northeast from its origins in the Sierra Nevada
Mountains in California before turning south and ultimately
flowing into Walker Lake in Nevada. The first quarter of the
basin lies in California, and California accounts for a majority
of the precipitation and surface water flow into the basin.
The vast majority of the water is consumed across the border
in Nevada.
Walker Lake is about 13 miles long, five miles wide and
90 feet deep – a large lake by most any measure. But its size
and volume have shrunk significantly since they were first
measured in 1882. By 1996, Walker Lake had retained just
50 percent of its 1882 surface area and 28 percent of its 1882
volume. Today’s Walker Lake also suffers from high
concentrations of total dissolved solids (“TDS”) – meaning it
has a high salt content, low oxygen content and a high
temperature.
6 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
These conditions have drastically degraded the lake’s
environmental and economic well-being. The high TDS
concentrations have proven so inhospitable to fish species
that, according to Mineral County, much of the lake’s fishing
industry “has been eliminated for the time being.” Walker
Lake’s decline also threatens its status as an important shelter
for migratory birds, and it has “drive[n] away the many
Nevadans and other Americans who used Walker Lake for
recreational enjoyment and economically productive
activities.” Although the parties dispute the cause of Walker
Lake’s troubles, it seems clear that upstream appropriations
play at least some part, together with declining precipitation
levels and natural lake recession over time.
B. Litigation Over Water Rights in the Basin
In an effort to protect and rehabilitate Walker Lake,
Mineral County intervened in the long-running litigation over
water rights in the Walker River Basin. That litigation began
in 1902, when one cattle and land company sued another in
the United States District Court for the District of Nevada
over appropriations from the Walker River. After
considerable back and forth in state and federal court –
including a Supreme Court decision holding that the Nevada
federal court had prior, exclusive jurisdiction over the action,
see Rickey Land & Cattle Co. v. Miller & Lux, 218 U.S. 258,
262 (1910) – the case ended in 1919.
Five years later, the United States brought a new action in
Nevada federal court, seeking to establish the water rights of
the Walker Lake Paiute Tribe. After 12 more years of
litigation – bringing us to 1936 – that proceeding resulted in
the Walker River Decree. The Walker River Decree
adjudicated the water rights of hundreds of claimants under
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 7
the doctrine of prior appropriation.2 The Decree also created
the Walker River Commission and the United States Board of
Water Commissioners. The federal district court in Nevada
has maintained jurisdiction over the Decree and its
administration ever since.
In 1987, the Paiute Tribe intervened in the Walker River
litigation to establish procedures for reallocating water rights
under the Decree. Since that proceeding’s conclusion in
1988, the Nevada State Engineer reviews all applications to
change allocations under the Decree in Nevada, subject to
review by the Nevada federal district court. It appears that
Nevada’s prior appropriation law, which has largely been
codified, governs the Engineer’s decisions and the district
court’s review. See, e.g., Nev. Rev. Stat. § 533.370; see also
Greg Walch, Water Law: Treading Water Law — A Nevada
Water Rights Primer, 6 Nev. Law. 18, 18 (Nov. 1998)
(discussing the history of prior appropriation and its
codification in Nevada). Next, in 1991, the Paiute Tribe and
the United States sought recognition of the Tribe’s right to a
certain additional amount of water from the Walker River,
under a principle that Native American tribes have superior
water rights based on their relationship to the federal
government. That case is pending before this panel. See
United States v. Walker River Irrigation Dist., No. 15-16478.
2
Under the doctrine of prior appropriation, “[t]he first appropriator
of the water of a stream passing through the public lands . . . has the right
to insist that the water shall be subject to his use and enjoyment to the
extent of his original appropriation, and that its quality shall not be
impaired so as to defeat the purpose of its appropriation.” Lobdell v.
Simpson, 2 Nev. 274, 277–78 (1866) (quoting Butte Canal & Ditch Co. v.
Vaughn,
11 Cal. 143, 153–54 (1858)).
8 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
C. Mineral County’s Intervention
In 1994, Mineral County moved to intervene in the
Decree litigation. The district court granted the motion in
2013. The amended complaint in intervention alleges that
“[a]ctivities and businesses attributable to the presence and
use of Walker Lake represent[] approximately 50% of the
economy of Mineral County.” The complaint asks the Decree
court, “pursuant to its continuing jurisdiction under . . . the
. . . Decree, [to] reopen and modify the final Decree to
recognize the rights of Mineral County . . . and the public to
have minimum levels [of water] to maintain the viability of
Walker Lake.” Mineral County seeks recognition “that a
minimum of 127,000 acre/feet [of water] per year to Walker
Lake is . . . required under the doctrine of maintenance of the
public trust.”3
The Working Group – already a party to this litigation as
a right-holder under the Decree – supports Mineral County’s
position. Because of the posture of this case, the Working
Group is considered a defendant as to Mineral County’s
intervention. But the Working Group “always has supported
efforts to transfer water rights for use in Walker Lake . . . and
has supported the enforcement of the public trust doctrine for
this same purpose.”
3
Under the public trust doctrine, states hold navigable waterways
within their borders in trust for the good of the public. See Lawrence v.
Clark County, 254 P.3d 606, 607 (Nev. 2011); see also Mineral
County,
20 P.3d at 807 (Rose, J., concurring) (“In its most fundamental terms, the
public trust doctrine provides that . . . all of a state’s navigable waterways
are held in trust by the state for the benefit of the people and that a state
official’s control of those waters is forever subject to that trust.”).
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 9
In 2015, the district court dismissed the amended
complaint in intervention. First, the district court held
Mineral County lacked standing to assert its public trust
claim. It concluded Mineral County’s claim “was based
purely on a parens patriae theory” of standing – i.e., that
Mineral County did not assert any of its own interests, only
those of its citizens – and that a county lacks the ability to sue
as parens patriae.
Notwithstanding its conclusion on standing, the district
court also addressed the merits of Mineral County’s public
trust claim. It concluded the public trust doctrine may factor
into future allocations of water, but that using the doctrine to
reallocate rights already adjudicated under the Decree would
constitute a taking and require just compensation. Invoking
the political question doctrine, the court concluded it lacked
authority to order Nevada to effectuate such a taking. The
district court also held, without analysis, that Walker Lake is
not part of the Walker River Basin under the Decree, and
therefore that the Decree prohibits allocating any water
specifically to the lake.
Mineral County timely appealed. We have concluded the
district court erred in dismissing the amended complaint in
intervention for lack of standing.4 The remaining issue –
whether the Walker River Decree can be amended to allow
for certain minimum flows of water to reach Walker Lake –
depends on whether the public trust doctrine applies to rights
previously adjudicated and settled under the doctrine of prior
4
In a concurrently filed memorandum disposition, we hold Mineral
County has standing to assert its public trust claim. Furthermore, we have
concurrently decided that Walker Lake is within the Walker River Basin.
See United States v. U.S. Bd. of Water Comm’rs, No. 15-16316.
10 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
appropriation and permits alteration of prior allocations.5
This is an important question of Nevada water law we believe
should be decided by the Nevada Supreme Court.
II. Discussion
The Nevada Supreme Court expressly recognized the
public trust doctrine under Nevada law in Lawrence v. Clark
County, 254 P.3d 606 (Nev. 2011). Lawrence involved an
attempt by the Nevada legislature to transfer state-owned land
to Clark County. See
id. at 608. Because the land may have
been a navigable waterway when Nevada joined the United
States, the Nevada State Land Registrar refused to transfer
title, citing the public trust’s prohibition on alienating land
held in trust for the public. See
id. The Nevada Supreme
Court remanded after setting out a three-part test for assessing
whether the public trust doctrine permits alienation of state
land. See
id. at 616–17.6
Lawrence, although formally recognizing the doctrine for
the first time, traced public trust principles in Nevada law
back to the state’s founding, concluding the doctrine was
“based on a policy reflected in the Nevada Constitution,
Nevada statutes, and the inherent limitations on the state’s
sovereign power.” Id. at 613. The court also noted it had
applied public trust principles in several of its earlier
5
We hold the subsequent takings claim in abeyance pending the
result of certification.
6
This test appears to be of limited relevance here because it
addresses alienation of trust lands. The issues here involve the scope of
the public trust doctrine and its relationship to the doctrine of prior
appropriation and Nevada’s statutory water law.
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 11
decisions. One of those decisions, Mineral County v. Nevada
Department of Conservation & Natural Resources, appears
to be particularly relevant here.
Mineral County involved the very case now under
consideration, filed by Mineral County and the Working
Group directly in the Nevada Supreme Court while the
county’s motion to intervene in this case was pending.
Although the Nevada Supreme Court dismissed the action
based on the federal court’s prior exclusive jurisdiction, two
aspects of Mineral County are relevant here. First, the
Nevada Supreme Court effectively invited the federal court
to certify the public trust question at issue here. See Mineral
County, 20 P.3d at 807 n.35 (“[Mineral County and the
Working Group] argue that if their motion to intervene in the
federal court is eventually granted, they will seek to have this
court decide the scope of the public trust doctrine pursuant to
the federal abstention doctrine. If the federal court reviews
this question, it can certify a question regarding the public
trust doctrine pursuant to NRAP 5; therefore, the issue need
not necessarily be addressed via the extraordinary remedy of
a writ.”).
Second, in Mineral County, Justice Rose (joined by
Justice Shearing) wrote a concurrence addressing in broad
strokes the public trust doctrine’s application in this case.
Justice Rose opined:
Although the original objectives of the
public trust were to protect the public’s rights
in navigation, commerce, and fishing, the trust
has evolved to encompass additional public
values – including recreational and ecological
uses. Additionally, although the original
12 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
scope of the public trust reached only
navigable water, the trust has evolved to
encompass non-navigable tributaries that feed
navigable bodies of water. This extension of
the doctrine is natural and necessary where, as
here, the navigable water’s existence is
wholly dependent on tributaries that appear to
be over-appropriated.
. . . [T]he existence of the public trust
doctrine in Nevada appears to be beyond
debate. . . . This court has itself recognized
that . . . public ownership of water is the most
fundamental tenet of Nevada water law.
Additionally, we have noted that those
holding vested water rights do not own or
acquire title to water, but merely enjoy a right
to the beneficial use of the water. This right,
however, is forever subject to the public trust,
which at all times forms the outer boundaries
of permissible government action with respect
to public trust resources. In this manner, then,
the public trust doctrine operates
simultaneously with the system of prior
appropriation.
....
If the current law governing the water
engineer does not clearly direct the engineer
to continuously consider in the course of his
work the public’s interest in Nevada’s natural
water resources, then the law is deficient. It is
then appropriate, if not our constitutional
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 13
duty, to expressly reaffirm the engineer’s
continuing responsibility as a public trustee to
allocate and supervise water rights so that the
appropriations do not substantially impair the
public interest in the lands and waters
remaining.
Id. at 807–09 (footnotes and internal quotation marks
omitted). No Nevada Supreme Court decision has formally
adopted Justice Rose’s concurrence, but Lawrence discussed
it as persuasive authority in the development of Nevada’s
public trust law.
See 254 P.3d at 610–11.
In light of Lawrence, all parties agree the public trust
doctrine exists in Nevada. They disagree, however, over the
doctrine’s scope and whether it permits reallocation of rights
settled under the separate doctrine of prior appropriation by
the Walker River Decree. No controlling Nevada precedent
reconciles these doctrines, and the parties advance conflicting
proposals.
Mineral County, for example, contends the public trust
doctrine requires the State Engineer to reconsider previous
allocations and, in doing so, to reserve a specified minimum
flow for Walker Lake regardless of any other rights or
considerations. Although Mineral County points to a number
of general principles suggesting the public trust doctrine
applies to Walker Lake in some form, it has not presented
authority for a version of the doctrine that holds absolute
supremacy over the competing doctrine of prior
appropriation.
The Lyon County appellees sit at the opposite end of the
spectrum. They contend, essentially, that once water rights
14 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
have been adjudicated and settled by decree, they are vested
and no longer within the purview of the public trust doctrine.
Lyon County is correct that Nevada considers water rights
settled by decree “vested.” See Nev. Rev. Stat. § 533.090 et
seq. (entitled “Adjudication of Vested Water Rights”).
Nevada law refers to water rights settled by decree as “final”
and “conclusive,” id. § 533.210, and the Nevada State
Engineer – charged with administering Nevada’s statutory
water law – may neither “carry out his or her duties . . . in a
manner that conflicts with any . . . decree or order issued by
a state or federal court,”
id. § 533.0245, nor authorize any
change in water use that “is inconsistent with any applicable
federal or state decree,”
id. § 533.3703. There is, moreover,
significant authority stressing the importance of finality in the
adjudication of water rights. See, e.g., Arizona v. California,
460 U.S. 605, 620 (1983) (“Certainty of rights is particularly
important with respect to water rights in the Western United
States. . . . The doctrine of prior appropriation . . . is itself
largely a product of the compelling need for certainty in the
holding and use of water rights.”).
Lyon County’s position nonetheless appears to suffer
from the same shortcoming as that of Mineral County. It
does not explain why the public trust doctrine must
completely yield to the doctrine of prior appropriation (or,
more precisely, to the decrees resulting from adjudications
under the prior appropriation doctrine and Nevada’s statutory
water law). The principles of finality on which Lyon County
rests are encapsulated in Nevada’s statutes and endorsed by
the Supreme Court, but it is not clear they would compel
Nevada to conclude that rights already adjudicated are
exempt from the public trust.
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 15
There is significant authority suggesting rights already
adjudicated may not be always and forever exempt from the
public trust. For example, the Nevada Supreme Court has
held:
the most fundamental tenet of Nevada water
law [is that] “the water of all sources of water
supply within the boundaries of the state
whether above or beneath the surface of the
ground, belongs to the public.” Indeed, even
those holding certificated, vested, or perfected
water rights do not own or acquire title to
water.
Desert Irrigation, Ltd. v. Nevada, 944 P.2d 835, 842 (Nev.
1997) (alteration omitted) (quoting Nev. Rev. Stat.
§ 533.025). Based on this statement, Justice Rose concluded
in Mineral County that even “those holding vested water
rights” hold “[t]his right . . . forever subject to the public
trust.” 20 P.3d at 808. Quoting Justice Rose, Lawrence said
the same thing in its exposition of the public trust doctrine
(albeit without holding that vested water rights are subject to
the public trust).
See 254 P.3d at 611; see also Mineral
County., 20 P.3d at 808–09 (Rose, J., concurring) (opining
that “the public trust doctrine operates simultaneously with
the system of prior appropriation” and urging the Nevada
Supreme Court “to expressly reaffirm the [Nevada State]
[E]ngineer’s continuing responsibility as a public trustee to
allocate and supervise water rights [pursuant to the public
trust doctrine]”). Thus, Nevada might not altogether exempt
vested, adjudicated rights from the public trust doctrine.
Under Justice Rose’s view, that water rights have been
settled by adjudication and decree may be relevant to
16 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
balancing the public trust doctrine against competing
principles of Nevada water law. But it does not necessarily
mean the public trust – itself a fundamental principle of law
– cannot disturb them.
Faced with a similar question in National Audubon
Society v. Superior Court, 658 P.2d 709 (Cal. 1983), the
California Supreme Court outlined the competing values
underlying the public trust doctrine and doctrine of prior
appropriation and, rather than deeming one doctrine supreme,
balanced them:
This case brings together for the first time
two systems of legal thought: the
appropriative water rights system which since
the days of the gold rush has dominated
California water law, and the public trust
doctrine which, after evolving as a shield for
the protection of tidelands, now extends its
protective scope to navigable lakes. Ever
since we first recognized that the public trust
protects environmental and recreational
values, the two systems of legal thought have
been on a collision course. They meet in a
unique and dramatic setting which highlights
the clash of values. Mono Lake is a scenic
and ecological treasure of national
significance, imperiled by continued
diversions of water; yet, the need of Los
Angeles for water is apparent, its reliance on
rights granted by the board evident, the cost of
curtailing diversions substantial.
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 17
. . . The prosperity and habitability of
much of this state requires the diversion of
great quantities of water from its streams for
purposes unconnected to any navigation,
commerce, fishing, recreation, or ecological
use relating to the source stream. The state
must have the power to grant nonvested
usufructuary rights to appropriate water even
if diversions harm public trust uses. Approval
of such diversion without considering public
trust values, however, may result in needless
destruction of those values.
Id. at 712 (citations omitted). This approach appears similar
to the one Justice Rose described – albeit in only general
terms – in his Mineral County concurrence. An approach
along these lines would permit, but not require, reallocation
of water rights that were previously settled. See Mineral
County., 20 P.3d at 808–09 (Rose, J., concurring) (the two
systems operate simultaneously, and the State Engineer must
at least “consider” the public trust in making allocation
decisions).7
7
Lyon County and the Nevada Department of Wildlife (NDOW) also
suggest Nevada law already incorporates the public trust doctrine by
requiring that appropriated water be put to a “beneficial use.” The Nevada
Supreme Court has not yet considered this question. As in National
Audubon, “no responsible body has ever” expressly considered the public
trust in making allocation decisions. Nat’l Audubon, 658 P.2d at 728; see
also Mineral
County, 20 P.3d at 808 (Rose, J., concurring) (“If the current
law governing the water engineer does not clearly direct the engineer to
continuously consider . . . the public’s interest in Nevada’s natural water
resources, then the law is deficient.”).
18 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
We conclude that whether, and to what extent, the public
trust doctrine applies to appropriative rights settled under the
Walker River Decree is an open question. Because this
question has significant implications for Nevada’s water laws
and because we cannot be certain how the Nevada Supreme
Court would resolve this matter, certification on this question
of law is appropriate.
III. Questions Certified to the Nevada Supreme Court
The questions of law we certify are:
Does the public trust doctrine apply to rights
already adjudicated and settled under the
doctrine of prior appropriation and, if so, to
what extent?
If the public trust doctrine applies and allows
for reallocation of rights settled under the
doctrine of prior appropriation, does the
abrogation of such adjudicated or vested
rights constitute a “taking” under the Nevada
Constitution requiring payment of just
compensation?
IV. Conclusion
Mineral County’s appeal presents open and important
questions under Nevada law that may be determinative of
issues essential to the resolution of the claims raised in the
present case. We therefore respectfully request that the
Supreme Court of Nevada accept and decide the questions
certified. “We recognize that the [Nevada Supreme] Court
may, in its discretion, reword the certified question[s].”
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 19
Progressive Gulf Ins. Co. v. Faehnrich, 627 F.3d 1137, 1140
(9th Cir. 2010). We further agree to abide by the decision of
the Nevada Supreme Court as specified in Rule 5 of the
Nevada Rules of Appellate Procedure, which states “[t]he
written opinion of the Supreme Court stating the law
governing the questions certified . . . shall be res judicata as
to the parties.” Nev. R. App. P. 5(g).
In light of our decision to certify the issues set forth
above, the submission of this appeal for decision is
withdrawn, and all further proceedings in this case before our
court are stayed pending final action by the Supreme Court of
Nevada, save for any petition for rehearing regarding this
order or the concurrently filed memorandum disposition. The
Clerk is directed to administratively close this docket,
pending further order. The Clerk of this court shall forward
a copy of this order, under official seal, to the Supreme Court
of Nevada, along with copies of all briefs and excerpts of
record that have been filed with this court. The parties shall
notify the Clerk of this court within 14 days of any decision
by the Nevada Supreme Court to accept or decline
certification. If the Nevada Supreme Court accepts
certification, the parties shall then notify the Clerk of this
court within 14 days of the issuance of the Nevada Supreme
Court’s opinion.
Supplemental Material
Pursuant to Rule 5 of the Nevada Rules of Appellate
Procedure, we include here the designation of the parties who
would be the appellants and respondents in the Nevada
Supreme Court, as well as the names and addresses of
counsel.
20 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
Appellants:
Mineral County, Nevada and Walker Lake Working Group
Sean A. Rowe
Mineral County District Attorney
P.O. Box 1210
Hawthorne, NV 89415
Simeon M. Herskovits
Advocates for Community & Environment
P.O. Box 1075
El Prado, NM 87529-1075
Attorneys for Mineral County, Nevada and Walker Lake
Working Group
Respondents:
Lyon County, Nevada et al. (Centennial Livestock,
Bridgeport Ranchers and the Schroeder Group)
Stephen B. Rye, District Attorney
Lyon County
31 S. Main Street
Yerington, NV 89447
Attorney for Lyon County
Jerry M. Snyder
429 West Plumb
Reno, NV 89509
Attorney for Lyon County
MINERAL CTY. V. WALKER RIVER IRRIGATION DIST. 21
Roderick E. Walston
Steven G. Martin
Best Best & Krieger LLP
2201 N. Main Street, Suite 390
Walnut Creek, CA 94596
Attorneys for Centennial Livestock
Therese A. Ure
Schroeder Law Offices, P.C.
440 Marsh Avenue
Reno, NV 89509
Attorney for the Schroeder Group
Walker River Irrigation District
Gordon H. DePaoli
Dale E. Ferguson
Woodburn and Wedge
6100 Neil Road, Suite 500
Reno, NV 89511
Attorneys for Walker River Irrigation District
Nevada Department of Wildlife
Adam Paul Laxalt, Attorney General
Bryan L. Stockton, Senior Deputy Attorney General
100 North Carson Street
Carson City, NV 89701-4717
Attorneys for Nevada Department of Wildlife
22 MINERAL CTY. V. WALKER RIVER IRRIGATION DIST.
County of Mono, California
Stacey Simon, Acting County Counsel
Stephen M. Kerins, Deputy County Counsel
Office of the County Counsel
County of Mono
P.O. Box 2415
Mammoth Lakes, CA 93546
Attorneys for County of Mono, California
QUESTIONS CERTIFIED; PROCEEDINGS
STAYED.
_____________________________
Jay S. Bybee
United States Circuit Judge, Presiding
