In Re: The Determination Rights To Water Located Within Diamond Valley Hydrographic Basin No. 10-153 ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 84275
DETERMINATION OF THE RELATIVE
RIGHTS IN AND TO ALL WATERS.
BOTH SURFACE AND
UNDERGROUND, LOCATED WITHIN
THE DIAMOND VALLEY
HYDROGRAPHIC BASIN 10-153,
EUREKA AND ELKO COUNTIES, MAY 0 4 2022
NEVADA. A BROWN
UPREMECour
THE STATE OF NEVADA CLERK
DEPARTMENT OF CONSERVATION
AND NATURAL RESOURCES,
DIVISION OF WATER RESOURCES;
ADAM SULLIVAN, P.E., STATE
ENGINEER; AND EUREKA COUNTY,
Appellants.
vs.
SOLARLJOS, LLC; DANIEL S.
VENTURACCI; AMANDA L.
VENTURACCI; CHAD D. BLISS; ROSIE
J. BLISS; WILFRED BAILEY AND
CAROLYN BAILEY, TRUSTEES OF
THE WILFRED AND CAROLYN
BAILEY FAMILY TRUST, DATED
FEBRUARY 20, 2018; JAMES E.
BAUMANN; VERA L. BAUMANN;
NORMAN C. FITZWATER; KINDY L.
FITZWATER; ARC DOME PARTNERS,
LLC; ROBERT F. BECK AND KAREN A.
BECK, TRUSTEES OF THE BECK
FAMILY TRUST DATED APRIL 1, 2005;
IRA R. RENNER; MONTIRA RENNER;
SADLER RANCH, LLC; MW CATTLE,
LLC; UNITED STATES DEPARTMENT
OF INTERIOR, BUREAU OF LAND
MANAGEMENT; PETER
GOICOECHEA; AND GLADY
SUPREME COURT
OF
NEVADA
2_ - ict 2 6 'I
GOICOECHEA,
Resk.mdents.
ORDER DISMISSING APPEAL
This is an appeal from a district court summary judgment,
certified as final under NRCP 54(b), resolving an exception filed in a water
rights adjudication.
In January 2020, the State Engineer issued a final order of
determination adjudicating vested surface and underground water rights in
the Diamond Valley Hydrographic Basin. Per NRS 533.165, the order of
determination was filed in the district court, and thereafter, several
interested parties filed exceptions thereto, under NRS 533.170. One of
those parties, respondent Solarljos, LLC, moved for summary judgment on
its exception, which the district court granted on October 27, 2021 (corrected
order). Three months later, the court granted Solarljos's motion for NRCP
54(b) certification, determining that Solarljos was not involved in any of the
other exceptions before the court, that none of those exceptions was
interrelated with that of Solarljos for certification purposes, and that the
summary judgment resolved all issues concerning Solartos. such that
certification would not result in piecemeal iitigation. Further, the court
found that Solarljos would be prejudiced by any delay in appealing and that
no just reason for delay existed. Accordingly, the court granted NRCP 54(b)
certification and directed entry of final judgment as to Solarljos.
The State of Nevada, Department of Conservation and Na tural
Resources, Division of Water R.esources and the State Engineer filed a
protective appeal and moved both for a• stay pending appeal and to
determine jurisdiction, arguing that the summary judgment was
2
improperly certified as final under NRCP 54(b). See Fernandez v. Infusaid
Corp., 110 Nev. 187, 192-93, 871 P.2d 292, 295 (1994). Appellant Eureka
County has joined in both motions.
On March 1, 2022, we granted a temporary partial stay pending
the completion of briefing on both motions and further order of this court.
Briefing is now completed.'
Jurisdiction
With respect to water law adjudications, "Wile purpose of the
Water Law is perfectly obvious. If seeks not only to have the water rights
adjudicated but to have them adjudicated in such a proceeding as to
terminate for all time litigation between all such water users." Ruddell v.
Sixth Judicial Dist. Court, 54 Nev. 363, 367, 17 P.2d 693, 694-95 (1933).
Thus, early on we recognized that "the character of an adjudication, under
the Water Code, forbids the idea of separate controversies being involved."
In re Water Rights in Silver Creek & Its Tributaries, in Lander County, 57
'The Renner respondents filed an opposition to the jurisdiction
motion on March 4, 2022, which the Venturacci respondents and Solarljos
joined. Solarljos filed an opposition as well (Solarljos's motion for leave to
exceed the NRAP 27(d)(2) page limit by 7 pages is granted; the opposition
was timely filed on March 4, 2022). The State appellants have filed a reply
(the State appellants March 9, 2022, motion for leave to file replies to the
responses to the stay motion and jurisdictional motion that exceed the page
limit by 8 and 3 pages, respectively, is granted; both replies were filed on
March 9, 2022). Eureka County also filed a reply to the responses for both
motions, joining in the State appellants' arguments (Eureka County's
motion to exceed the page limit for its reply by 3 pages is granted; the reply
was filed on March 9, 2022). Additionally, Solarljos's March 4 motion to
exceed the page limit with respect to its opposition to the stay motion and
March 7 motion for brief extension of time are granted. Finally, in light of
the March 7 filing by Peter and Gladys Goicoechea, we direct the clerk of
this court to remove those parties as respondents to this appeal.
3
Nev. 232, 237, 61 P.2d 987, 989 (1936). "Necessarily such interrelated
rights must be adjusted as a whole in order to reach an equitable settlement
of the controversy." Id. Therefore, even water users who are "satisfied with
the final order of determination of the state engineer, . . . are still vitally
concerned in every other appropriation, because a modification of the order
might affect thern." Id. at 238„ 61 P.2d at 989.
To this end, the statutes provide that the district court must
hear any exceptions to the order of determination and then "shall enter a
decree affirming or modifying the order of the State Engineer." NRS
533.185; see also NRS 533.165(6); NES 533.170. NRS 533.200 provides for
appeals "from such decree" pursuant to the NRAP and "in the same manner
and with the same effect as in civil cases," except that notice must be
provided not only to those who filed exceptions, but also to claimants and
water users who have not appeared in the case, through the attorney
general. NRS 533.200. See Jackson v. Groenendyke, 132 Nev. 296, 300, 369
P.3d 362, 365 (2016). In 1932, this court recognized that "the right to appeal
in a proceeding of this kind is expressly conferred by the provisions of the
Water Law," and based on that law, which has changed little since that
time, "it appears quite clearly that an appeal will not lie in a proceeding for
the determination of the relative rights to use of the waters of a stream or
stream system until the decree is entered." In re Waters of Humboldt River
Stream Sys., 54 Nev. 115, 119, 7 P.2d 813, 814 (1932) (dismissing appeal
from a judgment deterrnining certain rights to stream waters). Four years
later, this court again dismissed an appeal from a judgment on exceptions,
because "[a]n appeal in a water adjudication proceeding . . . must be taken
from the decree as entered." In re Silver Creek, 57 Nev. at 239, 61 P.2d at
990 CThe statute does not contemplate such an appeal and it is therefore
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without any legal effect."). Accordingly, as far back as the 1930s, this court
has recognized that the right to appeal in adjudication cases exists solely by
statute and "appellants are limited to the plan therein outlined to protect
their rights," which does not include taking an appeal from a judgment
resolving an exception. Id. at 238, 61 P.2d at 989.
Nevertheless, respondents argue that nothing in our caselaw or
in the statutes precludes the district court from entering more than one
decree in an adjudication or from certifying a subpart of the adjudication as
final for appeal purpoSes. They point out that the cited cases Predate the
adoption of NRCP 54(b) and that, here, no other clainiants chose to be
involved in the proceedings concerning Solarljos's exception.
NRCP 54(b) allows the district court to direct entry of final
judgment upon the resolution of the action as to slime claims or parties, but
fewer than all. Here, the dištrict court appears to have based its
certification decision on both prongs--that the summary judgment resolved
both Solarljos's "claim" and completely removed it from the case--
concluding that the matter was "more akin to consolidated caseS retaining
their separate identity." But this goes against the nature of adjudications,
which, as noted above, "forbids the idea of separate controversies being
involved." Id. at 237, 61 P.2d at 989. Even • after one or more of the
exceptions is resolved, the decree may ultimately In odi fy the order of
determination in a way affecting other water users. And the character of
the adjudication does not change upon appeal. Id. at 238, 61 P.2d at 989.
Thus, the legislature has determined that an appeal may be taken only from
the district court's decree, and certification as to only part of the whole
matter necessarily results in piecemeal litigation and is improper in
adjudication cases. While respondents suggest that, here, the Solarljos
.,„ t
.5:N.": 2 .4'.1••
matter involved water sources unconnected and unrelated to the others,
such that this is not a typical adjudication, they have not supported that
assertion and the State appellants and Eureka County disagree, indicating
that the water sources involved are hydrologically connected and the
concern of all Diamond Valley water users. As a result, we conclude that
NRCP 54(b) certification was improvidently granted, such that we lack
jurisdiction over this appeal.
Because we lack jurisdiction, we
ORDER this appeal DISMISSED.2
J.
Hardesty
AlLcips-0 J.
Stiglich
J.
Herndon
cc: Hon. Gary Fairman, District Judge
Attorney General/Carson City
Allison MacKenzie, Ltd.
Eureka County District Attorney
Kaempfer CrowelliReno
Schroeder Law Offices, P.C.
Taggart & Taggart, Ltd.
2Inlight of this order, we deny appellants stay motion and vacate our
March 1 temporary stay.
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U.S. Department of Justice/Boise
Woodburn & Wedge
Dotson Law
Robertson, Johnson, Miller & Williamson
Steven D. King
Eureka County Clerk
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