By the Court, PICKERING, J.:
NRS 533.450(1) affords judicial review "in the nature of an appeal" to "[a]ny person feeling aggrieved by any order or decision of the State [Water] Engineer ... affecting the person's interests." The appeal "must be initiated in the proper court of the county in which the matters affected or a portion thereof are situated." Id. In this case, we consider what the statute means by "matters affected." The district court held that the phrase refers to the point of diversion of the applicants' existing or proposed water rights, nobody else's. It further held that filing for review in an improper county does not just misplace venue, a defect that may be cured or waived, but defeats subject matter jurisdiction, requiring dismissal. Thus, since the protesters filed their appeals in Churchill County, where their rights or interests allegedly would be affected, as opposed to Lyon County, where the applicants' groundwater appropriations lie, the district court summarily dismissed. By then, NRS 533.450(1)'s 30-day limit on seeking judicial review had passed.
We conclude that the district court read the statute too restrictively. We therefore
This case concerns State Engineer Ruling 5823, allocating groundwater rights in the Dayton Valley Hydrographic Basin (the Basin). Most of the applications considered in Ruling 5823 asked to change the point of diversion, place, and manner of use of existing groundwater appropriations. However, two were for new groundwater appropriations. The Basin lies wholly within Lyon County.
Appellants Churchill County and the Pyramid Lake Paiute Tribe (the Tribe) protested the applications before the State Engineer. They maintain that the Basin is "severely over-appropriated." Because the Basin's groundwater is hydrologically connected to the surface waters of the Carson River, which flows into the Lahontan Reservoir, they argued to the State Engineer that approving the applications in Lyon County would deplete these waters, in which they have an interest, in neighboring Churchill County.
Churchill County holds decreed surface water rights in the Carson River, but the Tribe does not. Nonetheless, the Tribe reasons that the applications considered in Ruling 5823 affect its interests because depleting the Carson River surface water will decrease inflow into the Lahontan Reservoir. In turn, Newlands Reclamation Project senior water rights holders would be entitled to divert Truckee River surface water to compensate for insufficient flows from the Carson River. This water diversion would decrease the Truckee River's flow into Pyramid Lake, thus affecting the Tribe's interests.
In Ruling 5823, the State Engineer rejected both Churchill County's and the Tribe's protests and granted all pending applications.
Churchill County and the Tribe appealed, invoking NRS 533.450(1), which reads in pertinent part as follows:
Deeming themselves "aggrieved" and the "matters affected or a portion thereof to be situate in Churchill County, the County and the Tribe filed their appeals in the Third Judicial District Court in Churchill County. In addition, the Tribe filed a separate appeal in the federal court that had issued the decree governing use of Carson River water, United States v. Alpine Land & Reservoir Co., 503 F.Supp. 877, 879-81 (D.Nev.1980), aff'd as modified, 697 F.2d 851 (9th Cir.1983) (the Alpine decree), relying on the clause of exception in NRS 533.450(1) ("but on stream systems where a decree of court has been entered, the action must be initiated in the court that entered the decree").
The State Engineer responded to the Third Judicial District Court appeals with a demand to change venue from Churchill to Lyon County. At the time, the Third Judicial District comprised both Churchill and Lyon Counties. In practical terms, therefore, all the State Engineer sought was an intradistrict change of venue, from one county court to another, within the same judicial
The motions to change venue and to dismiss both argued that, under NRS 533.450(1), "the proper court of the county in which the matters affected or a portion thereof are situated" was the Third Judicial District Court in Lyon County, because that is where the applicants' water rights are or would be located. Not surprisingly, Churchill County and the Tribe disagreed. In their view, NRS 533.450(1) by its terms ("or a portion thereof ...") contemplates more than one possible forum and, in using the phrase "matters affected," refers not just to an applicant's interests but to a protester's as well. Thus, the district courts in either Churchill County or Lyon County could entertain their appeals.
Similar arguments were made to the Alpine decree court on motions to dismiss the Tribe's parallel federal appeal. The Alpine decree court ruled before the district court in this case did. United States v. Alpine Land & Reservoir Co., Case Subfile No. 3:73-cv-00203-LDG, Equity No. 3:73-cv-00183-LDG (D.Nev. July 3, 2008) (Alpine 2008 order). It accepted arguendo (as do we) that Ruling 5823 affected the Tribe's rights in the Truckee River, as adjudicated in United States v. Orr Water Ditch Co., Equity No. A-3 (D.Nev.1944) (the Orr Ditch decree), due to the alleged impact on the surface waters of the Carson River outlined above. Nonetheless, the Alpine decree court rejected the Tribe's argument that this qualified its appeal under the clause in NRS 533.450(1) providing, "but on stream systems where a decree of court has been entered, the action must be initiated in the court that entered the decree." According to the Alpine decree court, alleging that a State Engineer's ruling affects federally decreed water rights does not thereby "confer jurisdiction" on the decree court. Alpine 2008 Order, slip op. at 3. "Rather," the court continued, NRS 533.450(1) reposes exclusive jurisdiction in the court where the applicant's actual or proposed water rights are located, meaning in the context of Ruling 5823 "that such jurisdiction is in the proper court in Lyon County, as that is the county in which the Dayton Valley Hydrographic Basin is located." Id. Accordingly, the Alpine decree court dismissed the Tribe's appeal of Ruling 5823.
The district court in this case accepted Aspen Creek's invitation to take judicial notice of the Alpine 2008 order. It "agree[d] with the Alpine court that it is the location of the water rights of the applicant that determines which court has jurisdiction to hear an appeal from a State Engineer's decision." Given the admitted fact that "[t]he rights granted or altered in State Engineer Ruling 5823 are located in Lyon County," it concluded that it did not have "subject matter jurisdiction over th[e] appeal." Lacking subject matter jurisdiction, the district court deemed itself powerless to order a change of venue, and dismissed. It did so based on the pleadings and the State Engineer's written ruling, without considering the administrative record, which had yet to be filed when its order was entered.
From this order of dismissal, Churchill County and the Tribe have appealed.
After the principal briefs in this appeal were filed, the Ninth Circuit Court of Appeals vacated the Alpine 2008 order. United States v. Alpine Land & Reservoir Co., 385 Fed.Appx. 770 (9th Cir.2010). It did so based on United States v. Orr Water Ditch Co., 600 F.3d 1152 (9th Cir.2010). The 2010 Orr Ditch decision rejects the proposition that the location of the applicant's water rights determines jurisdiction under NRS 533.450(1), at least in cases where the protester's
This court requested and received further briefing on the impact on this appeal of the decisions in Alpine Land & Reservoir Co., 385 Fed.Appx. 770, and United States v. Orr Water Ditch Co., 600 F.3d 1152, as well as the federal district court's order on remand from the Ninth Circuit in United States v. Alpine Land & Reservoir Co., 788 F.Supp.2d 1209 (D.Nev.2011). See also United States v. Alpine Land & Reservoir Co., Nos. 3-73-cv-00183-LDG, 3:37-cv-00202-LDG, 2011 WL 2470627 (D.Nev. Jun. 17, 2011). We also asked the parties to clarify whether the interests of Churchill County and the Tribe assertedly affected by Ruling 5823 derive from water rights that are decreed, permitted, or a combination of both, a question the parties could not definitively answer given the limited record available.
The sole issue presented by this appeal concerns subject matter jurisdiction, which the district court determined was lacking based on its reading of NRS 533.450(1), the pleadings, and State Engineer Ruling 5823. When decided on pleadings alone, "[s]ubject matter jurisdiction [presents] a question of law subject to de novo review." Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). "[Q]uestions of statutory interpretation" also receive de novo review. Bigpond v. State, 128 Nev. ___, ___, 270 P.3d 1244, 1248 (2012).
A decision of the State Engineer enjoys a presumption of correctness. NRS 533.450(10). The presumption does not extend to "purely legal questions," such as "the construction of a statute," as to which "the reviewing court may undertake independent review." Town of Eureka v. State Engineer, 108 Nev. 163, 165, 826 P.2d 948, 949 (1992). Even so, this court recognizes the State Engineer's expertise and looks to his interpretation of a Nevada water law statute as persuasive, if not mandatory, authority. Id. at 165-66, 826 P.2d at 950. Put another way, "[w]hile the State Engineer's interpretation of a statute [may be] persuasive, it is not controlling." Id.; accord State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988).
Our analysis begins with NRS 533.450(1)'s text. See 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47:1, at 274-75 (7th ed. 2007) ("The starting point in statutory construction is to read and examine the text of the act and draw inferences concerning the meaning from its composition and structure." (footnote omitted)); Oliver Wendell Holmes, Collected Legal Papers 207 (New York 1920) ("we do not inquire what the legislature meant; we ask only what the statute means").
NRS 533.450(1) starts out with an introductory grant clause that gives "[a]ny person feeling aggrieved by any order or
Having established a right of judicial review in favor of applicants and protesters alike, the statute continues with its forum clause. This clause specifies that the judicial review proceeding "must be initiated in the proper court of the county in which the matters affected or a portion thereof are situated." NRS 533.450(1). "Must" is mandatory, as distinguished from the permissive "may." Fourchier v. McNeil Const. Co., 68 Nev. 109, 122, 227 P.2d 429, 435 (1951). Thus, to obtain judicial review under NRS 533.450(1), a "person" aggrieved "must" file the proceeding in "the proper court of the county in which the matters affected or a portion thereof are situated." But this does not signify, as the district court held, that only a single court in a single county will do—much less that the "matters affected" must be judged from the perspective of the applicant, not a protester. On the contrary, the phrase "or a portion thereof contemplates multiple potential forums: If "a portion" of the "matters affected" being situated in the forum county satisfies the statute, so too, should the remainder of the "matters affected" qualify the counties in which they are situated. Further, the forum clause's use of "matters affected" hearkens back to the language in the introductory clause that grants judicial review to "[a]ny person feeling aggrieved by any order or decision of the State Engineer... affecting the person's interests." NRS 533.450(1) (emphasis added).
NRS 533.450(1) continues with a clause of exception: "but on stream systems where a decree of court has been entered, the action must be initiated in the court that entered the decree." The statute's introductory grant and forum clauses have been in place since 1915. 1915 Nev. Stat., ch. 253, § 13, at 384. The clause of exception was added in 1951. 1951 Nev. Stat., ch. 110, § 11, at 140. The clause of exception reinforces the conclusion that NRS 533.450(1) contemplates more than one possible forum—the decree court and other non-decree courts that otherwise, without this clause, could potentially hear the appeal.
Nothing in NRS 533.450(l)'s text, in short, vests exclusive jurisdiction in the court of the county where all or part of the applicant's water rights lie (unless perhaps the clause of exception applies to the applicant's rights, which isn't suggested here). Instead, the statute's wording plainly contemplates more than one permissible forum, depending
Relying on the later-vacated order of the Alpine decree court, Alpine 2008 Order, slip op. at 3, the district court concluded that NRS 533.450(1) is ambiguous and that the result produced by a literal reading of NRS 533.450(1) was unreasonable. In reaching this conclusion, the district court, like the Alpine decree court, relied primarily on the final clause of exception that was added to NRS 533.450(1) in 1951.
In the district court's words, "[t]he Legislature clearly intended [the clause of exception in] NRS 533.450(1) to confer continuing and exclusive jurisdiction of State Engineer decisions that `affect' water rights on decreed stream systems on the one court that entered the decree." Otherwise, "the interests claimed to be affected by one decision could be water rights on two different stream systems for which different decrees of court have already been entered by different courts." From this, the district court concluded that, "[i]n order to accomplish the intended exclusive jurisdiction over appeals from decisions deciding water rights on st[r]eam systems, it is necessary to define the `matters affected' by a State Engineer[']s decision as the water rights of the applicant," in both decree-court and non-decree-court cases.
But limiting jurisdiction under NRS 533.450(1) to the court of the county where the applicant's water rights lie creates its own problems with multiple potential forums and creates an even more profound conflict between a decree court's ongoing jurisdiction and a second court's assumption of such jurisdiction—a conflict that the clause of exception in NRS 533.450(1) seems designed to mitigate, to the extent possible. The Ninth Circuit's recent Orr Ditch decision, 600 F.3d at 1154, 1159-61, illustrates the problems perfectly.
As the 2010 Orr Ditch decision recognizes, federal "subject matter jurisdiction over appeals from decisions of the State Engineer is an odd amalgam," a "`highly extraordinary,'" "unique jurisdictional arrangement." Id. at 1159 (quoting United States v. Alpine Land & Reservoir Co., 878 F.2d 1217, 1219 n. 2 (9th Cir.1989)). In appeals of decisions affecting federally decreed rights, jurisdiction rests not only on NRS 533.450(1), but also "on the ability of a court of equity to enforce and administer its decrees." Id.; see State Engineer of NV. v. South Fork Band of Te-Moak, 339 F.3d 804, 813-14 (9th Cir. 2003) (applying the doctrine of prior exclusive jurisdiction to affirm the trial court's abstention ruling in a federal suit to enforce Sixth Judicial District Court Humboldt Decree rights). To the extent an order or decision of the State Engineer affects a protester's senior, federally decreed rights, the decree court has jurisdiction over the appeal. Orr Ditch, 600 F.3d at 1160. Such jurisdiction is limited, however, to assessing and, if appropriate, directing the State Engineer to correct the adverse effect on the senior, federally decreed rights. Id. To the extent an appeal asserts that state-decreed or state-permitted rights are adversely affected, jurisdiction lies in the "proper court of the county in which the matters affected or a portion thereof are situated." NRS 533.450(1); see Orr Ditch, 600 F.3d at 1160.
Orr Ditch focused on the jurisdiction of a federal decree court, pursuant to the clause of exception in NRS 533.450(1). However, its holding that a protester whose decreed rights are adversely affected by a State Engineer's order or decision can appeal to the decree court is inconsistent with the district court's decision in this case that the location of the applicant's water rights determines subject matter jurisdiction in this context—as, indeed, another panel of the Ninth Circuit held in Alpine Land & Reservoir Co.,
Our holding that NRS 533.450(1) does not limit subject matter jurisdiction according to the location of an applicant's water rights is not inconsistent with Jahn v. District Court, 58 Nev. 204, 73 P.2d 499 (1937), although several respondents argue otherwise. Jahn grew out of the long-running and contentious litigation by Humboldt Lovelock Irrigation, Light & Power Company (HLILP), which established the Pitt-Taylor Reservoirs, on the one hand, and the State Engineer and the United States, on the other, over the establishment of the Rye Patch Reservoir. See United States v. Humboldt Lovelock Irr. Light & P. Co., 97 F.2d 38, 39-42 (9th Cir. 1938); Gray Mashburn & W.T. Mathews, The Humboldt River Adjudication, at v-vii (1943); see also Carpenter v. District Court, 59 Nev. 42, 73 P.2d 1310 (1937) (prohibiting the Humboldt County district court from granting new trials in favor of noncontest claimants seeking to reopen the decree adjudicating rights to Humboldt River waters), aff'd on reh'g, 59 Nev. 42, 84 P.2d 489 (1938).
The issue that divided the parties in Jahn was whether HLILP could proceed under section 36½ of the water law (now NRS 533.220(1)) with a request that the decree court direct the State Engineer to act as HLILP demanded or was limited to, and should have initiated, a proceeding for review under section 75 (now NRS 533.450(1)). Jahn, 58 Nev. at 206-08, 73 P.2d 499 (reprinting the parties' arguments); id. at 211-12, 73 P.2d at 501-02. The court held that the remedy afforded by section 75 was exclusive, and that HLILP could not proceed under section 36½ or pursuant to the inherent powers of the decree court, which was located in Humboldt County. Jahn, 58 Nev. at 213, 73 P.2d at 502 ("As the water law ... does not contemplate such a procedure in the district court as was initiated by the company [HLILP], the law does not confer the right of appeal from the order in question.").
The Jahn opinion could have begun and ended there, since HLILP had proceeded under section 36/4, not section 75. The court offered the following additional observation, however, on which several respondents rely here:
Id. at 213, 73 P.2d at 502. This statement is dictum but does not assist respondents in any event, as both HLILP's Pitt-Taylor Reservoirs and the Rye Patch Reservoir are located in Pershing County, not Humboldt County. See id. Thus, the statement quoted above from Jahn does not support the applicant-based jurisdictional rule for which respondents contend.
We share the Ninth Circuit's solicitude for the "general principle of water law that a single court should have exclusive jurisdiction over an interrelated system of water rights," and its concern with the "practical difficulties" in vesting jurisdiction in more than one court. Orr Ditch, 600 F.3d at 1160. "But th[e former] principle, while valid and important, is not an inviolable rule," id., and the practical difficulties can be alleviated in significant part by recognizing that the general forum clause in NRS 533.450(1) addresses venue, rather than subject matter jurisdiction. Compare NRS 13.050 (providing for change of venue in proceedings not brought in "the proper county") with NRS 533.165 (analogously recognizing and providing a "procedure when [an unadjudicated] stream system [is located] in two or more judicial districts," which is that the judges of the different courts shall decide which will be the decree court). Such an approach is consistent with the Language in NRS 533.450(1)'s forum clause (the "proper court of the county" where "the matters affected or a portion thereof are situated"), which speaks the language of venue, see NRS 13.010(2) (addressing venue in terms of "the county in which the subject of the action, or some part thereof, is situated"); NRS 13.050 ("[i]f the county designated ... be not the proper county," venue may be changed), rather than that of subject matter jurisdiction. Landreth v. Malik, 127 Nev. ___, ___, 251 P.3d 163, 168-69 (2011) (holding that Nev. Const. art. 6, § 6(1) vests general jurisdiction in all district court judges equally and rejecting the argument that the Legislature can create family courts as district courts of limited, not general, jurisdiction). It also comports with the position taken by the State Engineer, who took a venue—based approach in the district court, where he moved to change venue—not to dismiss—a position to which he returned in his supplemental brief to this court.
We recognize that the general venue statutes refer to changing "the place of trial," NRS 13.010; NRS 13.040; NRS 13.050; but see NRS 13.030 (addressing venue in actions involving counties in terms of place the action was commenced), while review under NRS 533.450(1) is "in the nature of an appeal." However, this does not defeat their application in this context. See NRS 533.450(8) ("The practice in civil cases applies to the informal and summary character of such proceedings, as provided in this section."). The general venue statutes apply to proceedings at the time they are initiated, not just to the eventual trial. Thus, a change of venue must be demanded "before the time for answering expires," NRS 13.050(1), and "[w]hen the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed...." NRS 13.050(3). This court has long drawn on procedures and law applicable to civil actions generally in water law cases, to the extent consistent with the governing statutes, see Carpenter v. District Court, 59 Nev. 42, 53, 84 P.2d 489, 491 (1938), aff'g on reh'g Carpenter v. District Court, 59 Nev. 42, 73 P.2d 1310 (1937). While the lack of a full record or a decision as to venue by the district court prevents this court from deciding venue in this opinion, on remand, the district court may, in deciding the motions to change venue that remain, draw on NRS Chapter 13 to the extent appropriate.
In vacating the district court's jurisdictional dismissal and remanding for a determination of venue, we do not address standing or comity and do not decide the merits of Churchill County's and the Tribe's claims that Ruling 5823 affects cognizable interests of theirs. We hold simply that the district
We concur: CHERRY, C.J., and DOUGLAS, SAITTA, GIBBONS, HARDESTY and PARRAGUIRRE, JJ.