Sullivan v. Lincoln Cnty. Water Dist. , 140 Nev. Adv. Op. No. 4 ( 2024 )

'140 Nev, Advance Opinithi
IN THE SUPREME COURT OF THE STATE OF NEVADA
ADAM SULLIVAN, P.E., NEVADA No. 84739
STATE ENGINEER, DIVISION OF
WATER RESOURCES, DEPARTMENT
OF CONSERVATION AND NATURAL
RESOURCES,
Appellant,
vs.
FiLE
LINCOLN COUNTY WATER DISTRICT; iAN 2..5 2021/ 1
VIDLER WATER COMPANY, INC.; EL3JrH A. 3.Ra- Vti
esel V:IJR,'
CLER 0 ',O..:rt
COYOTE SPRINGS INVESTMENT, io
LLC; NEVADA COGENERATION DEPL-ITY CLERK —
ASSOCIATES NOS. 1 AND 2; APEX
HOLDING COMPANY, LLC; DRY LAKE
WATER, LLC; GEORGIA-PACIFIC
GYPSUM, LLC; REPUBLIC
ENVIRONMENTAL TECHNOLOGIES,
INC.; SIERRA PACIFIC POWER
COMPANY, D/B/A NV ENERGY;
NEVADA POWER COMPANY, D/B/A
NV ENERGY; THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS; MOAPA VALLEY WATER
DISTRICT; WESTERN ELITE
ENVIRONMENTAL, INC.; BEDROC
LIMITED, LLC; AND CITY OF NORTH
LAS VEGAS,
Respondents.
SOUTHERN NEVADA WATER No. 84741
AUTHORITY,
Appellant,
vs.
LINCOLN COUNTY WATER DISTRICT;
VIDLER WATER COMPANY, INC.;
COYOTE SPRINGS INVESTMENT,
LLC; NEVADA COGENERATION
ASSOCIATES NOS. 1 AND 2; APEX
HOLDING COMPANY, LLC; DRY LAKE
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• :;:$4-4.....t,.+:17;
WATER, LLC; GEORGIA-PACIFIC
GYPSUM, LLC; REPUBLIC
ENVIRONMENTAL TECHNOLOGIES,
INC.; SIERRA PACIFIC POWER
COMPANY, D/B/A NV ENERGY;
NEVADA POWER COMPANY, D/B/A
NV ENERGY; THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS; MOAPA VALLEY WATER
DISTRICT; WESTERN ELITE
ENVIRONMENTAL, INC.; BEDROC
LIMITED, LLC; AND CITY OF NORTH
LAS VEGAS,
Respondents.
CENTER FOR BIOLOGICAL No. 84742
DIVERSITY,
Appellant,
vs.
LINCOLN COUNTY WATER DISTRICT;
VIDLER WATER COMPANY, INC.;
COYOTE SPRINGS INVESTMENT,
LLC; NEVADA COGENERATION
ASSOCIATES NOS. 1 AND 2; APEX
HOLDING COMPANY, LLC; DRY LAKE
WATER, LLC; GEORGIA-PACIFIC
GYPSUM, LLC; REPUBLIC
ENVIRONMENTAL TECHNOLOGIES,
INC.; SIERRA PACIFIC POWER
COMPANY, D/B/A NV ENERGY;
NEVADA POWER COMPANY, D/B/A
NV ENERGY; THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS; MOAPA VALLEY WATER
DISTRICT; WESTERN ELITE
ENVIRONMENTAL, INC.; BEDROC
LIMITED, LLC; AND CITY OF NORTH
LAS VEGAS,
Respondents.
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MUDDY VALLEY IRRIGATION No. 84809
COMPANY,
Appellant,
vs.
LINCOLN COUNTY WATER DISTRICT;
VIDLER WATER COMPANY, INC.;
COYOTE SPRINGS INVESTMENT,
LLC; NEVADA COGENERATION
ASSOCIATES NOS. 1 AND 2; APEX
HOLDING COMPANY, LLC; DRY LAKE
WATER, LLC; GEORGIA-PACIFIC
GYPSUM, LLC; REPUBLIC
ENVIRONMENTAL TECHNOLOGIES,
INC.; SIERRA PACIFIC POWER
COMPANY, D/B/A NV ENERGY;
NEVADA POWER COMPANY, D/B/A
NV ENERGY; THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS; MOAPA VALLEY WATER
DISTRICT; WESTERN ELITE
ENVIRONMENTAL, INC.; BEDROC
LIMITED, LLC; AND CITY OF NORTH
LAS VEGAS,
Respondents.
COYOTE SPRINGS INVESTMENT, No. 85137
LLC; LINCOLN COUNTY WATER
DISTRICT; AND VIDLER WATER
COMPANY, INC.,
Appellants,
vs.
ADAM SULLIVAN, P.E., NEVADA
STATE ENGINEER, DIVISION OF
WATER RESOURCES, DEPARTMENT
OF CONSERVATION AND NATURAL
RESOURCES,
Respondent.
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Consolidated appeals from a district court order granting
petitions for judicial review in a water law matter and from a post-judgment
order denying motions for attorney fees. Eighth Judicial District Court,
Clark County; Bita Yeager, Judge.
Affirmed in part, reversed in part, and remanded.
Aaron D. Ford, Attorney General, Heidi Parry Stern, Solicitor General,
Jeffrey M. Conner and Kiel B. Ireland, Deputy Solicitors General, and
James N. Bolotin, Senior Deputy Attorney General, Carson City,
for Adam Sullivan, P.E., Nevada State Engineer.
Taggart & Taggart, Ltd., and Paul G. Taggart and Thomas P. Duensing,
Carson City; Steven C. Anderson, Las Vegas,
for Southern Nevada Water Authority.
Scott Lake, Reno,
for Center for Biological Diversity.
Dotson Law and Robert A. Dotson and Justin C. Vance, Reno; Steven D.
King, Dayton,
for Muddy Valley Irrigation Company.
Dylan V. Frehner, District Attorney, Lincoln County; Great Basin Law and
Wayne O. Klomp, Reno,
for Lincoln County Water District.
Allison MacKenzie, Ltd., and Karen A. Peterson and Alida C. Mooney,
Carson City,
for Vidler Water Company, Inc.
Robison, Sharp, Sullivan & Brust and Kent R. Robison and Hannah E.
Winston, Reno; Brownstein Hyatt Farber Schreck, LLP, and Bradley J.
Herrema, Las Vegas; Coulthard Law PLLC and William L. Coulthard, Las
Vegas; Wingfield Nevada Group and Emilia K. Cargill, Coyote Springs,
for Coyote Springs Investment, LLC.
4
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Dyer Lawrence, LLP, and Francis C. Flaherty and Sue S. Matuska, Carson
City,
for Nevada Cogeneration Associates Nos. 1 and 2.
Kaempfer Crowell and Severin A. Carlson and Sihomara L. Graves, Reno,
for The Church of Jesus Christ of Latter-Day Saints.
Marquis Aurbach and Christian T. Balducci, Las Vegas,
for Apex Holding Company, LLC, and Dry Lake Water, LLC.
McDonald Carano LLP and Lucas Foletta, Sylvia Harrison, and Jane
Susskind, Reno,
for Georgia-Pacific Gypsum, LLC, and Republic Environmental
Technologies, Inc.
Parsons Behle & Latimer and Gregory H. Morrison, Reno,
for Moapa Valley Water District.
Schroeder Law Offices, P.C., and Laura A. Schroeder, Caitlin R. Skulan,
and Therese A. Ure Stix, Reno,
for Bedroc Limited, LLC, City of North Las Vegas, and Western Elite
Environmental, Inc.
Timothy M. Clausen and Michael D. Knox, Reno,
for Sierra Pacific Power Company.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court. LEE, J.:
This case examines whether the State Engineer has the
authority to redesignate multiple existing hydrographic basins as one
"superbasin" based on a shared source of water for purposes of the water's
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administration and management. We also look at whether the State
Engineer complied with due process in creating the superbasin at issue
here.
In Order 1309, the State Engineer determined that the waters
of seven basins were interconnected in a manner such that withdrawals
from one basin affected the amount of water in the other basins.
Consequently, the State Engineer combined those basins, for
administration purposes, into one superbasin. Further, the previously
granted appropriations of water exceeded the rate of recharge in the
superbasin, now known as the Lower White River Flow System (LWRFS).
The State Engineer found that permitted groundwater pumping from that
flow system may reduce the amount of water available to parties with
vested surface water rights, including rights to waters from the Muddy
River, a vital source of water for Las Vegas. Additionally, the State
Engineer determined that no more than 8,000 afa, and perhaps less, could
be appropriated from the flow system without affecting the vested rights
and other public interests.
Respondents, owners of water rights throughout the new
superbasin, petitioned for judicial review in the district court, alleging that
the State Engineer lacks authority to conjunctively manage surface waters
and groundwater and to jointly administer the multiple basins that form
the LWRFS. They also asserted that the State Engineer violated their due
process rights in issuing Order 1309. The district court largely agreed with
respondents and granted their petitions for judicial review. The State
Engineer and others interested in the flow of water throughout the LWRFS
appealed.
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We hold that the State Engineer has authority to conjunctively
manage surface waters and groundwater and to jointly administer multiple
basins and thus was empowered to issue Order 1309. We also conclude that
the State Engineer did not violate due process protections because
respondents received notice and had an opportunity to be heard.
Accordingly, we reverse the district court's order insofar as it granted
respondents' petitions for judicial review and dismissed appellants'
petitions for judicial review and remand this matter to the district court for
further proceedings as to the State Engineer's factual determinations. We
further affirm in part and reverse in part the district court's conflicting
order on whether appellants had notice that the State Engineer would
adjudicate the absence of a conflict to Muddy River rights. Finally, we do
not reach the merits of the attorney fees issue here, given our reversal of
the order granting petitions for judicial review.
FACTS AND PROCEDURAL HISTORY
In 2001, the State Engineer considered pending applications to
appropriate groundwater from several basins that sit just north of Las
Vegas. The groundwater is from an underground water resource known as
the carbonate rock aquifer system, or the LWRFS, a large area of
underground water whose rate of recharge and boundaries were unknown
at the time. The State Engineer held those applications in abeyance and
instead issued Order 1169. In Order 1169, he opined that groundwater in
the various basins originated from the same carbonate rock aquifer system
and that pumping groundwater from one basin might reduce the flow of
water to other basins, including to the springs supplying the fully
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appropriated Muddy River.' He indicated that it was unclear how much
additional groundwater could be appropriated without causing adverse
effects throughout the LWRFS. In order to determine the effects of
additional pumping, the State Engineer ordered water rights holders in
Coyote Springs Valley, one of the subject basins, to conduct a pump test to
obtain further information by stressing the aquifer. During the pump test,
the water rights holders in Coyote Springs Valley pumped at least 50% of
their permitted water rights over a period of two years.
Based on the results of the pump test, the State Engineer issued
Order 1169A in 2012. In that order, the State Engineer determined that
the increased pumping resulted in an unprecedented decrease in water flow
to the highest elevation springs fed by the carbonate rock aquifer system.
The State Engineer found that the pump test measurably
reduced flows in the headwater springs that feed the Muddy River, which
was fully appropriated for use prior to 1905 under the Muddy River Decree.
Rights holders under the Muddy River Decree hold prestatutory vested
water rights, and the State Engineer is statutorily required to not impair
these types of water rights. Further, the springs and tributary headwaters
of the Muddy River are the only habitat of the Moapa Dace, a fish protected
under the Endangered Species Act. As a result, the State Engineer
acknowledged that groundwater pumping in the subject basins could
negatively impact Muddy River surface water rights holders and the public
interest.
"'Aquifer' means a geological formation or structure that stores or
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transmits water, or both." NRS 534.0105.
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Moreover, the State Engineer found that the pump test impacts
were widespread, extending far beyond the Coyote Springs Valley pump test
sites to multiple nearby basins, including Kane Springs Valley, Hidden
Valley, Garnet Valley, the Muddy River Springs Area, California Wash, and
a small part of the Black Mountains Area (the Subject Basins), all of which,
with the exception of Kane Springs Valley, the State Engineer had
previously designated as individual basins for the purposes of
administration. As a result, he concluded the pump test provided clear
proof of the close hydrologic connection of the Subject Basins, with the
notable omission of Kane Springs Valley. The State Engineer then
determined that all the Subject Basins, except Kane Springs Valley and the
Black Mountains Area, shared the same perennial yield and held no
unappropriated groundwater.2 He consequently denied hundreds of
applications for further appropriations of groundwater throughout the
Subject Basins based on his conclusion that there was no unappropriated
water remaining in the source of supply.3
21t appears that the State Engineer suspected Kane Springs Valley
and a portion of the Black Mountains Area were a part of the LWRFS but
did not have enough information at the time to incorporate them in the
LWRFS for the purposes of further administration. The Black Mountains
Area was considered for management with the rest of the superbasin in
Order 1303, and Kane Springs Valley was added in Order 1309.
31n issuing Order 1169A, the State Engineer found that the Muddy
River was supplied by springs that recharge from groundwater in carbonate
rocks and that the area of recharge included other nearby topographical
areas throughout the LWRFS. As a result, groundwater pumping from the
LWRFS in the Subject Basins may reduce the springs' discharge and thus
reduces the flow of the Muddy River itself.
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Thereafter, in 2019, the State Engineer began addressing
concerns that the carbonate aquifer was over-appropriated by existing
groundwater rights. He issued Order 1303, designating the Subject Basins,
with the exception of Kane Springs Valley, as a "joint administrative unit
for purposes of administration of water rights" called the "Lower White
River Flow System." Instead of administering water rights separately
within each of the previously recognized six basins, the State Engineer
reordered and administered water rights throughout the newly created
LWRFS based upon the respective priority dates throughout the entirety of
the LWRFS.
The State Engineer further solicited reports from water rights
holders on the following topics: (a) the geographic boundary of the LWRFS;
(b) infbrmation related to the pump test, Muddy River headwater spring
flow, and aquifer recovery; (c) the long-term annual quantity of
groundwater that may be pumped from the LWRFS; (d) the effect of moving
water rights between wells on senior decreed rights to the Muddy River;
and (e) any other matter believed to be relevant. Lastly, Interim Order 1303
announced a future administrative hearing and held applications to change
existing groundwater rights i.n abeyance, issued a temporary moratorium
on development and construction, and allowed rights holders to use the
order to support extensions of time and prevent forfeitures.
Order 1309
Following the anticipated administrative hearing, and based on
the scientific evidence and testimony presented, the State Engineer in 2020
issued the order challenged herein, Order 1309. Order 1309 in pertinent
part delineated the LWRFS, this time including Kane Springs Valley, as a
single hydrographic basin and determined that no more than 8,000 afa (and
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perhaps less) could be pumped from that flow system without adversely
affecting the Muddy River and Moapa Dace, providing:
1. The Lower White River Flow System consisting
of the Kane Springs Valley, Coyote Spring Valley,
Muddy River Springs Area, California Wash,
Hidden Valley, Garnet Valley, and the northwest
portion of the Black Mountains Area as described
in this Order, is hereby delineated as a single
hydrographic basin. The Kane Springs Valley,
Coyote Spring Valley, Muddy River Springs Area,
California Wash, Hidden Valley, Garnet Valley and
the northwest portion of the Black Mountains Area
are hereby established as sub-basins within the
Lower White River Flow System Hydrographic
Basin.
2. The maximum quantity of groundwater that
may be pumped from the Lower White River Flow
System Hydrographic Basin on an average annual
basis without causing further declines in Warm
Springs area spring flow and flow in the Muddy
River cannot exceed 8,000 afa and may be less.
3. The maximum quantity of water that may be
pumped from the Lower White River Flow System
Hydrographic Basin may be reduced if it is
determined that pumping will adversely impact the
endangered Moapa dace.
(Emphases added.) Finally, Order 1309 lifted the moratorium on
development and construction and also rescinded all other matters not
addressed from Interim Order 1303, including the portion of Order 1303
that reordered rights throughout the LWRFS based on date of priority.
Petitions for judicial review
Water rights holders affected by Order 1309 petitioned the
district court for judicial review under NRS 533.450, and the cases were
consolidated. After oral argument, the district court granted respondents'
petitions. The district court took judicial notice that, unlike the six other
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basins, Kane Springs Valley was not previously statutorily designated as a
basin for administration. The district court found that the State Engineer
exceeded his statutory authority when creating the LWRFS out of multiple
distinct, already established hydrographic basins. The district court further
found that the State Engineer lacked the statutory authority to
conjunctively manage surface water and groundwater and to jointly
administer multiple sub-basins within the LWRFS. Additionally, the
district court determined that the State Engineer violated the water rights
holders' constitutional right to due process by failing to provide adequate
notice of the topics addressed at the hearing and a meaningful opportunity
to be heard on the issues. The district court declined to reach whether the
factual findings in Order 1309 were supported by substantial evidence. The
district court later filed an addendum to the order, granting in part and
dismissing in part the petition from the Southern Nevada Water Authority
(SNWA) and dismissing the petitions from the Muddy Valley Irrigation
Company (MVIC) and the Center for Biological Diversity (CBD), which had
primarily challenged Order 1309 only insofar as it determined that the
8,000 afa pumping cap did not impact vested water rights.
The State Engineer appealed from the district court's decisions,
as did SNWA, MVIC, and CBD.4 Respondents are parties with
appropriations throughout the LWRFS whose petitions for judicial review
4 To the extent that SNWA and MVIC challenge two paragraphs in
Order 1309 as an adjudication that the order does not conflict with their
rights under the Muddy River Decree, the State Engineer has agreed with
them that any such determination exceeded the scope of the hearing notice
and thus violated due process. We agree that such an adjudication exceeded
the scope of the hearing notice and therefore affirm the partial grant of
SNWA's petition and reverse the dismissal of MVIC's petition as discussed
in the conclusion.
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were granted by the district court. Certain respondents have separately
appealed from a post-judgment order denying their motions for attorney
fees. The appeals have been consolidated for the purposes of briefing, oral
argument, and disposition.
DISCUSSION
Prior appropriation doctrine
"As the driest state in the Nation," Nevada long ago adopted the
prior appropriation doctrine to allocate its water, "this most precious of
natural resources." United State.s v. State Eng'r, 117 Nev. 585, 592, 27 P.3d
51, 55 (2001) (Becker, J., concurring in part and dissenting in part). "The
prior appropriation doctrine grants an appropriative right that may be
described as a state administrative grant that allows the use of a specific
quantity of water for a specific beneficial purpose if water is available in the
source free from the claims of others with earlier appropriations." Mineral
County v. Lyon County, 136 Nev. 503, 509, 473 P.3d 418, 423 (2020)
(internal quotations and alterations omitted). "The doctrine of prior
appropriation ... is itself largely a product of the compelling need for
certainty in the holding and use of water rights." Arizona v. California, 460
U.S. 605, 620 (1983), decision supplemented, 466 U.S. 144 (1984). Both
surface water and groundwater are subject to the doctrine of prior
appropriation. Cappaert v. United States, 426 U.S. 128, 142 (1976).
"Nevada's supply of water, even with the most effective management tools,
is often insufficient to supply the state's needs," and thus, "allowing water
to be controlled by individual landowners was deemed to be harmful to the
public at large." United States v. State Eng'r, 117 Nev. at 592, 27 P.3d at
55 (Becker, J., concurring in part and dissenting in part). As a result, "[t]he
water of all sources of water supply" in Nevada "belongs to the public," and
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the State Engineer administers water rights on the public's behalf. NRS
533.025 (emphasis added).
"The term 'water right' means generally the right to divert
water by artificial means for beneficial use . . . ." Application of Filippini,
66 Nev. 17, 21, 202 P.2d 535, 537 (1949). The types of water rights
recognized in Nevada may be thought of as two groups: (1) prestatutory
GCvested" rights that existed under common law prior to 1913, which may not
be impaired by statutory law, and (2) statutorily granted rights, which
include permitted and certificated rights. See Andersen Farn. Assocs. v.
Hugh Ricci, P.E., 124 Nev. 182, 188-89, 179 P.3d 1201, 1204-05 (2008).
Relevant here, "vested water rights are subject to regulation under
Nevada's statutory system, [but] such regulation may not impair the
quantity or value of those rights." Id. at 190, 179 P.3d at 1206.
The State Engineer has authority to delineate the LWRFS as a single
hydrographic basin for conjunctive management and joint administration
"[T]he scope of the State Engineer's authority here is a question
of statutory interpretation, subject to de novo review." Wilson v. Pahrump
Fair Water, LLC, 137 Nev. 10, 14, 481 P.3d 853, 856 (2021). "The
Legislature has established a comprehensive statutory scheme regulating
the procedures for acquiring, changing, and losing water rights in Nevada."
Id. at 13, 481 P.3d at 856. "The State Engineer's powers thereunder are
limited to only those ... which the legislature expressly or implicitly
delegates." Id. (internal quotations omitted). "[F]or implied authority to
exist, the implicitly authorized act must be essential to carrying out an
express duty." Stockrneier v. State, Bd. of Parole Cornrn'rs, 127 Nev. 243,
248, 255 P.3d 209, 212 (2011).
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atu,
The State Engineer has implied authority under NRS 533.085 to
create the LWRFS and to determine the maximum amount that can be
pumped
NRS 533.085 prohibits the impairment of vested water rights,
regardless of the source of the water.5 See Andersen Fam. Assocs., 124 Nev.
at 190, 179 P.3d at 1206. All statutorily granted water rights in Nevada are
given subject to existing rights. NRS 533.030 ("Subject to existing
rights ... all water may be appropriated for beneficial use . . . ."); NRS
534.020 ("All underground waters . . . subject to all existing rights to the
use thereof, are subject to appropriation for beneficial use only under the
laws of this State relating to the appropriation and use of water and not
otherwise."). Because vested water rights by definition exist prior to the
grant of statutorily granted water rights, all statutory rights are granted
subject to vested rights, and no statutorily granted water right may impair
vested water rights.
Rights under the Muddy River Decree are prestatutory vested
rights under the protection of NRS 533.085 because the rights were
appropriated before 1913. In order to protect prestatutory vested rights
from impairment, the State Engineer must be able to determine the extent
of the groundwater resource that feeds the Muddy River to determine which
users are pumping from it and how much. See Rasmussen v. Moroni
5 NRS 533.085(1) states.
Nothing contained in this chapter shall impair the
vested right of any person to the use of water, nor
shall the right of any person to take and use water
be impaired or affected by any of the provisions of
this chapter where appropriations have been
initiated in accordance with law prior to March 22,
1913.
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Irrigation Co., 189 P. 572, 577 (Utah 1920) (-When therefore all of the water
is appropriated by a prior appropriator which flows in a given stream at
some point some distance down said stream, such appropriator acquires a
right to all of the sources of supply of such stream whether visible or
invisible, or whether underneath or on the surface."). The State Engineer
concluded that the best available science, as presented at the Order 1309
hearing, established that the basins in the LWRFS all share the same,
interconnected source of water. The State Engineer must then have the
authority to determine the maximum amount that can be pumped from the
LWRFS as a whole in order to determine whether water is available for
further appropriation and to protect the flow of water to senior vested
rights.6 Therefore, in determining the amount of unappropriated water in
the LWRFS and in accounting for the impact on the source of water, the
State Engineer has the implied authority to conjunctively manage surface
and groundwater and to jointly administer across multiple basins based on
the interconnected source of water that flows to vested rights holders.
NRS 533.085 gives the State Engineer the statutory authority
to conjunctively manage surface waters with groundwater. If statutory
rights holders deplete groundwater resources such that the flow of water to
the elevated springs that feed the Muddy River is reduced to the point of
impairing vested rights, then the State Engineer has the authority to invoke
NRS 533.085 to protect vested rights. Cf. Andersen Fam. Assocs., 124 Nev.
6We do not determine at this time exactly how the State Engineer is
to manage previously granted appropriation rights throughout the sub-
basins in the LWRFS, or whether he can apply a pump cap to individual
users, as those issues are not before us.
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at 191, 179 P.3d at 1206 (stating that "a loss of priority can amount to a de
facto loss of rights depending on water flow").
We likewise decline to hold that NRS 533.085 solely applies
within a single previously delineated basin and cannot extend across
multiple basins regardless of the location of the supply of water. Without
this authority, junior rights holders could deplete the shared water resource
according to their local priority and previously granted appropriation,
regardless of the impact such appropriation has on vested rights holders
outside of the local basin. This result would be contrary to both NRS
533.085 and the prior appropriation doctrine because it could impair the
rnost senior prestatutory vested rights that rely on this supply of water. See
An,dersen Farn. Assocs., 124 Nev. at 191, 179 P.3d at 1206; see also Proctor
v. Jennings, 6 Nev. 83, 87 (1870) ("Priority of appropriation, where no other
title exists, undoubtedly gives the better right.").
We further note the legislative policy declarations set forth in
NRS 533.024(1)(c) and (e), which require the State Engineer to "consider
the best available science in rendering decisions concerning the available
surface and underground sources of water" and "No manage conjunctively
the appropriation, use and administration of all waters," support our
interpretation. If the best available science indicates that groundwater and
surface water in the LWRFS are interrelated and that appropriations frorn
one reduces the flow of the other, then the State Engineer should manage
these rights together based on a shared source of supply. Since the State
Engineer must have the ability to conjunctively manage and jointly
administer water across multiple basins in order to prevent the impairment
of senior vested rights under NRS 533.085, we hold that he has the implied
statutory authority to do so.
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The State Engineer also has authority to issue Order 1309 pursuant to
a multitude of other statutory provisions
Appellants point to a multitude of other statutory authority,
including but not limited to NRS 534.080(1), NRS 533.370(2), NRS 534.030,
NRS 534.110(6), NRS 534.110(3), and NRS 534.120, that give the State
Engineer the power to conjunctively manage and jointly administer the
subject basins. Respondents assert that no statute authorizes the State
Engineer to redefine, combine, or delineate previously established basins
into a new superbasin. We take this opportunity to interpret each statute
in turn in order to clarify the State Engineer's authority to conjunctively
manage and jointly administrate water.
Under NRS 534.080(1), the right to appropriate groundwater
can be obtained only by complying with the provisions of NRS Chapter 533
pertaining to the appropriation of water." NRS Chapter 533 addresses
both surface water and groundwater, and several provisions implicitly
require conjunctive management and joint administration. NRS 533.030(1)
makes the appropriations of"all water" "[s]ubject to existing rights." Thus,
any appropriation granted under NRS 534.080(1) is subject to existing
surface water and groundwater rights. Any appropriation of groundwater
under NRS 534.080(1) is likewise subject to nonimpairment of vested rights
under NRS 533.085 and is thus subject to conjunctive management and
joint administration concepts based on a shared source of supply, as earlier
discussed.
NRS 534.080(1)'s requirement to comply with NRS Chapter 533
also requires compliance with NRS 533.370(2). NRS 533.370(2) requires
the State Engineer to reject applications for permitted water rights "where
there is no unappropriated water in the proposed source of supply . . . or
where its proposed use or change conflicts with existing rights." (Emphasis
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added.) We previously interpreted NRS 533.370(2) in Eureka County v.
State Engineer, 131 Nev. 846, 856, 359 P.3d 1114, 1121 (2015), and held
that the State Engineer must consider the effect that groundwater
appropriations have on spring discharge. There, we deterrnined that new
groundwater appropriations that deplete springs were a "conflict" for the
purposes of NRS 533.370(2). Id. at 852, 359 P.3d 1118. Although we did
not use the term "conjunctive rnanagement," it is clear the concept was
recognized in that caselaw. See id.; see also Cappaert, 426 U.S. at 142(noting that "Nevada itself may recognize the potential interrelationship
between surface and groundwater since Nevada applies the law of prior
appropriation to both").
We next turn to NRS 534.030 and NRS 534.110(6). NRS
534.030(1) and (2) give the State Engineer authority to designate an area
as a "basin" for the purposes of further administration, and NRS 534.110(6)
gives him authority to "conduct investigations in any basin or portion
thereof' where replenishment appears inadequate and to restrict
withdrawals to conform to priority rights. To determine whether these
statutes support Order 1309, we must first determine the definition of
-basin" as used in these statutes.
The State Engineer asserts that "basin" is broad and inclusive,
and thus may include an aquifer and multiple previously delineated
topographical basins. In its ruling, the district court narrowly defined
"basin" as the 253 hydrographic areas originally established by the United
States Geological Survey (USGS), which was adopted and published on a
map by Nevada's Division of Water Resources in 1968. See NRS 532.170
(the State Engineer is authorized to enter into agreements with the USGS
for "investigations related to the development and use of the water
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resources of Nevada"); Eugene F. Rush, Water Resources Information
Series, Report 6, Index of Hydrographic Areas in Nevada, Nevada
Department of Conservation and Natural Resources, Division of
Water Resources (1968), http://images.water.nv.gov/images/publications/
Information%20series/6.pdf (Rush Report). We disagree with the district
court's interpretation that "basin" refers only to the 253 hydrographic areas
or topographical "sub-basins," and we hold that "basin" includes the
meaning the State Engineer ascribes to it.
"[A]n agency charged with the duty of administering an act is
irnpliedly clothed with power to construe it as a necessary precedent to
administrative action." State v. Morros, 104 Nev. 709, 713, 766 P.2d 263.
266 (1988) (internal quotations omitted). However, this court will only
"defer to an agency's interpretation of its governing statutes . . . if its
interpretation is reasonable." Pub. Ernps.' Ret. Sys. of Nev. v. Nev. Pol'y
Rsch. Inst., Inc., 134 Nev. 669, 673 n.3, 429 P.3d 280, 284 n.3 (2018).
Although used throughout NRS Chapters 532, 533, and 534,
"basin" is not defined by statute. See, e.g., NRS 534.030(1)(b) (describing
the State Engineer's procedure to "designate the area by basin" for the
purposes of administration); see generally NRS Chapters 532-534 (leaving
"basin" undefined). The State Engineer's interpretation of "basins'
reasonably fits within a dictionary definition as "an enclosed or partly
enclosed water area" or "a broad area of the earth beneath which the strata
dip [usually] from the sides toward the center." See Basin, Merriam-
Webster's Collegiate Dictionary 102 (11th ed. 2003). Further, statutes
containing the word "basin" expressly contemplate underground water and
thus should not be limited to solely a surface level or topographical
meaning. See NRS 534.030(2) and (5) (discussing "groundwater basin[s]");
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NO,
NRS 534.110(6) (stating the State Engineer "shall conduct investigations in
any basin" where "the average annual replenishment to the groundwater
supply may not be adequate").7
The State Engineer is charged with the duty of administering
and construing his statutory authority and his interpretation is reasonable.
See Morros, 104 Nev. at 713, 766 P.al at 266. Therefore, "basin" as used by
the State Engineer in water law may include an "aquifer" and may include
multiple previously delineated basins as sub-basins.
Turning to NRS 534.110(6), it states in pertinent part,
[T]he State Engineer shall conduct investigations
in any basin or portion thereof where it appears
that the average annual replenishment to the
groundwater supply may not be adequate [,] . . . and
if the findings of the State Engineer so
indicate, ... the State Engineer may order that
withdrawals . . . be restricted to conform to priority
rights . . . .
7We likewise disagree with the district court's conclusion that "basin"
is singular and that management of water was only authorized on a sub-
basin within a basin approach. While this interpretation of basin as
singular is a permissive way to manage water, it is not exclusive of the
phiral management of multiple basins. See NRS 0.030(1) ("Except as
otherwise expressly provided in a particular statute or required by the
contextH . . . [t]he singular number includes the plural number, and the
plural includes the singular."). Nor in context does the meaning of "basin"
require the individual management of sub-basins and yet prohibit
management of a larger basin composed of sub-basins.
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101 I947A 46.
"[W]hen statutory language is clear and unambiguous, the
court will not look beyond its plain meaning and will give effect to its
apparent intent from the words used, unless that meaning was clearly not
intended." Andersen Farr- Assocs., 124 Nev. at 187, 179 P.3d at 1204(internal quotations omitted). NRS 534.110(6) is clear and unambiguous:
the State Engineer shall conduct investigations in a basin or any portion
where the groundwater replenishment may not be adequate for all
permittees and all vested-right claimants and may order restrictions based
on those findings.
In order to investigate a basin and determine if the
replenishment to the groundwater supply is adequate, the State Engineer
must be able to determine the boundaries of the basin that contains the
groundwater supply, the boundaries of the area that replenishes the basin,
and the rate of replenishment. See NRS 534.110(6); Stockrneier, 127 Nev.
at 248, 255 P.3d at 212 ("[E]or implied authority to exist, the implicitly
authorized act must be essential to carrying out an express duty."). "Basin,"
as discussed, may mean a large area and include aquifers or an area with
multiple basins that share the same source of interconnected groundwater
supply. We hold that NRS 534.110(6) gives the State Engineer the implied
authority to make a factual finding as to the boundaries of the LWRFS and
determine the maximum amount that can be pumped from the LWRFS
without reducing the supply of groundwater.8 He may then delineate the
boundary of the basin for administration under NRS 534.030. All of this
requires conjunctive management and joint administration.
8The factual findings in Order 1309 do not by themselves re-prioritize
the rights of individual permittees, and Order 1309 revoked the portions of
Interim Order 1303 that re-prioritized rights.
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The State Engineer also has the express statutory authority to
make the factual finding that the "area affected" by new appropriations is
broader than a previously defined basin. NRS 534.110(3) states, "The State
Engineer shall determine whether there is unappropriated water in the
area affected and may issue permits only if the determination is
affirmative." An "area affected" as used in NRS 534.110(3) is not limited to
"aquifer" or "basin," because "aquifer" is used at NRS 534.110(2), and
"basin" is used at NRS 534.110(6)-(8). Andersen Farn. Assocs., 124 Nev. at
187-88, 179 P.3d at 1204 (stating "no statutory language should be rendered
mere surplusage if such a consequence can properly be avoided"). The State
Engineer must delineate the "area affected" to determine whether there is
unappropriated water in the "area" in order to protect prior existing water
rights. See NRS 533.030(1); see also NRS 533.085.9
Finally, we turn our attention to NRS 534.120(1), which states,
Within an area that has been designated by the
State Engineer, as provided for in this chapter,
where, in the judgment of the State Engineer, the
groundwater basin is being depleted, the State
Engineer in his or her administrative capacity may
make such rules, regulations and orders as are
deemed essential for the welfare of the area
involved.
We hold that the plain language of this statute supports the
State Engineer's authority to issue Order 1309 in the six previously
designated basins. NRS 534.120(1) is silent as to the specific ability of a
State Engineer to redraw boundaries or group basins together. However,
9We note that the State Engineer has already effectively used this
authority to protect existing rights holders throughout the LWRFS,
including respondents, by denying applications for appropriations based on
the results of Order 1169.
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the clause enabling the State Engineer to "rnake such rules, regulations and
orders as are deemed essential for the welfare of the area involved" is a
broad delegation of authority, one that encompasses the creation of the
LWRFS out of multiple sub-basins for future management and determining
the maximum amount of water that can be pumped.'°
We disagree with respondents' argument that an area must be
designated as a critical management area under NRS 534.110(7) before the
State Engineer is authorized to make orders under NRS 534.120(1). There
is no indication that an "area" in NRS 534.120(1) has the exact same
meaning as a "critical management area" under 534.110(7). Additionally,
it would be illogical and unreasonable to require the State Engineer to
define a "critical management area" without first making a factual finding
as to the boundaries of the area containing groundwater.
The State Engineer has the implied authority to determine the
boundaries of the source of water in order to protect the Moapa Dace
against future appropriations
Finally, we turn to the statutory arguments regarding the
protection of the Moapa Dace. Appellants assert that delineation of the
LWRFS boundary was necessary to protect the State of Nevada from
liability under the federal Endangered Species Act (ESA) for failing to
protect the endangered Moapa Dace from groundwater pumping, citing
NRS 533.367 and NRS 533.370(2). Respondents assert that the State
Engineer lacks the authority to combine multiple basins in order to protect
an endangered species and that the plain language of NRS 533.367 and
'°Because Kane Springs was not previously designated a basin for
administration, the State Engineer may not rest on his authority in NRS
534.120(1) to issue orders in that area and must instead rely on the
previously discussed statutory authority.
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• 1,.:i4444):1E
NRS 533.370(2) does not provide the State Engineer with the authority to
manage existing water rights.11
NRS 533.367 states in pertinent part that "[Nefore a person
may obtain a right to the use of water from a spring or water which has
seeped to the surface of the ground, the person must ensure that wildlife
which customarily uses the water will have access to it." Although the plain
language of this statute places the onus on the person seeking the right to
use water, there is no way for a person to know how much water they can
take without impeding "access" to wildlife such as fish without first
obtaining information on the flow of water from the source of supply from
the State Engineer. Thus, NRS 533.367 impliedly requires the State
Engineer to determine the amount of water in the source of supply to
springs or seeps, in order to determine how much water can be drawn.
NRS 533.370(2) similarly provides that the State Engineer
shall reject applications "where there is no unappropriated water in the
proposed source of supply" or that "threaten[ ] to prove detrimental to the
public interest." Both of these statutes require the State Engineer to
determine the amount of water "in the proposed source of supply" in order
to determine if an application would be a threat to the public interest.12 The
11 Respondents also assert that the Moapa Dace is already protected
via a variety of agreements the parties entered into with the federal
government. We note that not all of the appellants, and in particular the
State Engineer, are party to all of the agreements cited; thus the Moapa
Dace rnay not be fully protected by preexisting agreements.
12 Neitherof these statutes, however, permits the impairment of
already existing rights in order to protect the Moapa Dace or avoid ESA
liability.
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preservation of wildlife is part of the public interest. See Pyrarnid Lake
Paiute Tribe of Indians v. Washoe County, 112 Nev. 743, 752, 918 P.2d 697,
702 (1996) (discussing whether the potential impact from pumping would
impact wildlife and thus be detrimental to the public interest). The State
Engineer has implied authority to make a factual determination as to the
boundaries of the source of water in order to make determinations on new
applications for appropriations.13
There is no due process violation because respondents received notice and
had an opportunity to be heard on the State Engineer's order
Respondents assert that they lacked notice of the topics of the
Order 1309 hearing and were not afforded a full and complete opportunity
to address the implications of the State Engineer's decision to subject the
basins to conjunctive management and joint administration. We review
"constitutional challenges de novo, including a violation of due process
rights challenge." Eureka County v. Seventh Jud. Dist. Ct., 134 Nev. 275,
279, 417 P.3d 1121, 1124 (2018). "In Nevada, water rights are 'regarded
and protected as real property." Id. (quoting Application of Filippini, 66
Nev. 17, 21-22, 202 P.2d 535, 537 (1949)). "Both the United States
Constitution and the Nevada Constitution guarantee that a person must
receive due process before the government may deprive him of his property."
Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007). "Procedural
due process requires that parties receive notice and an
'3We note that the State Engineer's 8,000 afa pump cap does not
reference the Moapa Dace and is not yet applied. We decline to extend our
ruling to address whether the State Engineer may apply a pump cap for the
benefit of an endangered species because that issue is not before us.
26
opportunity to be heard." Eureka County, 134 Nev. at 279, 417 P.3d at 1124
(internal quotations omitted). Due process attaches when there is even the
possible outcome" of curtailment; thus water rights holders must be
noticed. Id. at 279-80, 417 P.3d at 1125.
Apart from respondents in Kane Springs Valley, all
respondents were afforded adequate notice, through Interim Order 1303, of
the topics of the Order 1309 hearing. Interim Order 1303 contemplated all
of the issues under contention in Order 1309. Thus, respondents other than
those from Kane Springs Valley received constitutionally adequate notice.
With regard to the respondents with wells in Kane Springs
Valley, their inclusion in the Order 1309 hearing was not contemplated in
Interim Order 1303. They likewise did not participate in the Order 1169
pump test. However, Kane Springs Valley respondents participated in the
administrative hearing due to a request from the SNWA to the State
Engineer to consider including Kane Springs in the Order 1309 hearing and
the LWRFS in late 2018. The record also reflects that the Kane Springs
Valley respondents received over one month of formal notice of the potential
inclusion of Kane Springs Valley, with time allotted for a presentation
through a Notice of Hearing dated August 23, 2019. Thus, all of the
respondents received constitutionally adequate notice.
We likewise hold that all of the respondents had an adequate
opportunity to be heard on the factual issues. There are no policy or
management issues resolved in Order 1309 such that respondents needed
the opportunity to be heard on those issues. No deprivation of priority
property rights occurred because Order 1309 rescinded the portion of
Interim Order 1303 that reordered priority rights. Additionally, there was
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WI 1'14Y. ,411D
- I.
„,,......... ••,±11•41Vi.
:Fr 421.!
no loss of flow to any respondent as a result of Order 1309. much less the
"possible outcome" of curtailment, because the findings of the State
Engineer were purely factual. The Order 1309 hearing resulted in factual
findings as to the boundaries of the LWRFS and the maximum amount of
water that could be pumped, and the State Engineer did not consider
capping or curtailing any individual user as a result of the hearing.
Further, the record is clear that all respondents, including the Kane Springs
Valley respondents, were able to provide meaningful input on the factual
issues at the administrative hearing." Cf. Sw. Gas Corp. v. Pub. Utils.
Comrn'n of Nev., 138 Nev. 37, 46, 504 P.3d 503, 511-12 (2022) (holding the
due process claims failed because the issue was raised in the prefiled direct
testimony, providing notice that the issue would be considered, and the
appellant was afforded the opportunity to argue against it at the hearing).
Any findings regarding the maximum amount that can be pumped from the
LWRFS were not contemplated for the actual management of individual
users and were instead made for future proceedings.15
"Respondent Nevada Cogeneration Associates Nos. 1 and 2 asserts
that the State Engineer violated due process by improperly shifting the
burden of proof regarding the delineation of the boundary for the LWRFS.
We conclude there was no such burden shifting.
15We note that the inclusion of Kane Springs Valley and part of the
Black Mountain Area appears to be in part for the opportunity to conduct
additional studies on their hydrologic connection to the LWRFS. This
appears to be an acknowledgment from the State Engineer that the parties
raised factual issues that merit further study, which further strengthens
our holding that there was sufficient opportunity to be heard.
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((>) 1941A
Finally, appellants assert that the district court erred when it
held that the State Engineer violated respondents' due process rights by not
disclosing the criteria he used to evaluate hydrologic connections before the
Order 1309 hearing. Respondents assert that the State Engineer failed to
give notice of the six criteria he used for determining the boundary of the
new basin.
The "opportunity to be heard" is "a right that includes the
ability to challenge the evidence upon which the State Engineer's decision
may be based." Eureka County v. State Eng'r, 131 Nev. 846, 855, 359 P.3d
1114, 1120 (2015). "The Due Process Clause forbids an agency to use
evidence in a way that forecloses an opportunity to offer a contrary
presentation." Id. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 288 n.4 (1974)). However, the Due Process Clause
does "not preclude a factfinder from observing strengths and weaknesses in
the evidence that no party identified." Bowman Transp., Inc., 419 U.S. at
288 n.4.
Here, respondents are not alleging that they lacked access to
the underlying data or the factual issues; rather, they assert that they did
not have access to the State Engineer's method of interpreting, analyzing,
and weighing facts prior to the hearing. The Due Process Clause does not
require the State Engineer to explain how he will analyze and weigh
evidence prior to the evidence being submitted at a hearing. See id.
Therefore, the district court erred by finding violations of due process.
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CONCLUSION
The State Engineer did not exceed his statutory authority in
issuing Order 1309. The State Engineer has statutory authority to combine
multiple basins into one hydrographic "superbasin" based on a shared
source of water. Additionally, respondents' due process rights were not
violated because they received notice and had the opportunity to be heard
at the Order 1309 hearing. Accordingly, we reverse the district court's order
granting respondents' petitions for judicial review. For the same reason, we
reverse the district court's order dismissing MVIC and CBD's petitions for
judicial review and reverse the district court's order to the extent it
dismissed in part SNWA's petition for judicial review, directing the district
court to grant those petitions insofar as they assert the State Engineer has
the statutory authority to make the findings in Order 1309.
Additionally, we agree with appellants SNWA, MVIC, and the
State Engineer that the adjudication of an absence of conflict between
current groundwater puinping and rights under the Muddy River Decree
exceeded the scope of the hearing notice. We therefore affirm the district
court's decision to the extent it granted SNWA's petition and reverse the
dismissal of MVIC's petition, directing the district court to grant it in part
on remand. We remand for the district court to continue its review under
NRS 533.450 to determine whether substantial evidence supports Order
1309 and for further proceedings in accordance with this opinion. We
likewise lift our Order Granting Stay filed October 3, 2022.
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Finally, we do not reach the issue of attorney fees in Docket No.
85137 because our decision in this matter renders the issue moot. See
Personhood Nev. v. Bristol, 126 Nev. 599, 602, 606, 245 P.3d 572, 574-75
(2010) (dismissing appeal where subsequent events rendered the case
moot).
J.
Lee
We concur:
, C.J.
Cadish
J.
Stiglich
J.
Pickering
J.
Herndon
, J'•
J.
Bell
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