State Engineer v. Millard County, Utah

 423, 424-25 (1993), this court recognized that a district court order
remanding a decision to an administrative agency without finally
resolving the substantive issues before the court was not reviewable on
appeal as a final judgment. See also Clark Cnty. Liquor & Gaming
Licensing Bd. v. Clark, 102 Nev. 654, 658, 730 P.2d 443, 446 (1986)
(concluding that this court lacked jurisdiction to consider an appeal from a
district court order remanding a matter to the administrative agency to
conduct discovery).
Here, the order issued by appellant/cross-respondent Jason
King, the Nevada State Engineer, concluded that it would be "premature
to attempt to set quantitative standards or triggers for mitigation actions
in the Management Plan at this time," while also referencing statements
from two witnesses indicating that the need for mitigation should be
assessed on a case-by-case or site-by-site basis, Although the district court
acknowledged King's conclusions in this regard, it further noted that King
had also asserted that appellant/cross-respondent the Southern Nevada
Water Authority had presented a great deal of data that provided a basis
for making sound decisions on the mitigation issue. As a result, the
district court found that, if King "has enough data to make informed
decisions, setting standards and 'triggers' is not premature." The court
further found, as a corollary, that if King did not have enough data to set
mitigation standards, then granting the appropriation was premature.
Thus, because King's order declined to set objective standards regarding
when mitigation would be required, the district court concluded that that
order was incomplete and remanded the matter for resolution of this
significant issue.
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Insofar as the district court remanded this matter for the
State Engineer to resolve a substantive issue, we conclude that the district
court's order of remand was not an appealable, final judgment. See
Greenspun, 109 Nev. at 1025, 862 P.2d at 424-25; Clark, 102 Nev. at 658,
730 P.2d at 446. Moreover, as no statute or court rule otherwise provides
for an appeal from a district court order such as the one at issue here, see
NRAP 3A(b) (listing orders and judgments from which an appeal may be
taken); Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678
P.2d 1152, 1153 (1984) (noting that this court has jurisdiction to consider
an appeal only when the appeal is authorized by statute or court rule); see
also Clark, 102 Nev. at 658, 730 P.2d at 446, we lack jurisdiction to
consider this appeal, and therefore order the appeal dismissed.
It is so ORDERED.
J.
Parraguirre
Gibbons
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PICKERING, J., dissenting:
The majority concludes that we lack jurisdiction because the
district court's order was not a final, appealable judgment. But the order,
taken together with the State Engineer's findings, demonstrates that the
district court's decision was substantively final as to the core issue
presented: Does substantial evidence support the State Engineer's
decision to grant Southern Nevada Water Authority's (SNWA)
applications under NRS 533.370? The district court found in the negative
on that issue and its finding depends on its legal determination as to the
underlying law.
The district court's order may on its surface indicate that the
district court remanded the matter for the State Engineer to consider
evidence it failed to consider, rendering the order not "final." See State
Taxicab Auth. v. Greenspun, 109 Nev. 1022, 1024, 862 P.2d 423, 424
(1993) (order reversing agency's decision and remanding for the agency to
consider evidence it wrongfully refused to consider was not a final
judgment). On the last page of the order, the district court stated it would
not disturb the State Engineer's findings "save those findings that are the
subject of this Order," and "remanded" for the State Engineer to complete
four tasks:
1. The addition of Millard and Juab counties,
Utah in the mitigation plan so far as water
basins in Utah are affected by pumping of
water from Spring Valley Basin, Nevada;
2. A recalculation of water available for
appropriation from Spring Valley assuring that
the basin will reach equilibrium between
discharge and recharge in a reasonable time;
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3. Define standards, thresholds or triggers so that
mitigation of unreasonable effects from
pumping of water are neither arbitrary nor
capricious in Spring Valley, Cave Valley, Dry
Lake Valley and Delamar Valley, and;
4. Recalculate the appropriations from Cave
Valley, Dry Lake and Delamar Valley to avoid
overappropriations or conflicts with down-
gradient, existing water rights.
The majority focuses upon the third directive—that the State Engineer
must set objective standards, thresholds or triggers for when mitigation
must occur, and holds that this substantive matter was therefore
remanded to the State Engineer to resolve. Majority at 2.
As to this third directive, the State Engineer expressly found
that he did not have sufficient evidence to achieve it at the time he
granted the applications; rather, the State Engineer instead required
SNWA to conduct staged pumping, which he reasoned would allow the
interested parties to develop the specifics of any mitigation that may be
required to counteract any effects that are environmentally unsound or
that would conflict with existing rights under NRS 533.370(2). And, as
the majority recognizes, the district court found that if the State Engineer
"did not have enough data to set mitigation standards, then granting the
appropriation was premature." Majority at 2. It was because of the
prematurity of this grant that the district court also stated that "this
matter must be remanded to the State Engineer until objective standards
can be established and stated–as to when mitigation must occur."
Therefore, the district court's order held, in effect, that based upon the
evidence SNWA presented it, the State Engineer did not have sufficient
evidence to grant the applications. The district court's instructions as to
how the State Engineer might attempt to make up this factual
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insufficiency, or to allow the State Engineer to somehow hold the
applications until such evidence materialized, does not change the holding
that at the time the State Engineer made his decision it was not, in the
district court's view, supported by substantial, legally sufficient evidence.
As to the second instruction, the district court's express
holding that substantial evidence did not support the State Engineer's
finding that SNWA's Spring Valley appropriations were not against the
public interest effectively decided the issue: under NRS 533.370(2), the
State Engineer shall reject an application where "its proposed use or
change . . . threatens to prove detrimental to the public interest."
Notwithstanding the district court's attempt to remedy the situation by
ordering a remand for the State Engineer to recalculate the water
available in Spring Valley and to ensure that SNWA's Spring Valley
award is consistent with that availability, the district court's holding on
the matter necessarily answered, in the negative, the substantive question
of whether substantial evidence supported the State Engineer's decision to
grant SNWA's Spring Valley appropriation applications.
As to the district court's fourth instruction that the State
Engineer recalculate SNWA's appropriations from Cave Valley, Dry Lake,
and Delamar Valley to avoid overappropriations or conflicts with existing
water rights, inherent in this instruction, as well as the part of the order
that analyzed the issue, is the district court's determination that the State
Engineer's decision that SNWA's appropriations would not cause
overappropriation or conflict with existing rights was not supported by
substantial evidence. In other words, if the district court found that a
lesser appropriation to SNWA in these valleys is necessary to prevent
overappropriation or a conflict with existing rights, then it also necessarily
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found that the State Engineer was required to deny the applications. NRS
533.370(2) (State Engineer shall deny applications "where there is no
unappropriated water in the proposed source of supply, or where its
proposed use or change conflicts with existing rights"). Finally, the
remaining instruction, adding Millard County and Juab County to the
mitigation plan, is a nonstarter issue if, as the district court found, the
State Engineer's decision to grant SNWA's applications was not supported
by sufficient evidence such as to comply with NRS 533.270.
Thus, the district court reached the merits of the petition for
review and made a legal ruling as to the propriety of the State Engineer's
decision given the evidentiary record SNWA provided, which distinguishes
this order from at least one of the cases the majority relies upon. See
Greenspun, 109 Nev. at 1025, 862 P.2d at 425 (district court did not review
the merits of the agency's decision).' That the district court attempted to
provide instructions as to how the State Engineer may grant the
applications if he were to issue a new decision regarding SNWA's
applications does not change that the district court determined substantial
evidence did not support the State Engineer's decision to grant the
applications, and effectively reversed the State Engineer. We have
reviewed similar decisions in the past, and thus they must have been final
judgments. See Office of State Eng'r v. Morris, 107 Nev. 699, 701, 819 P.2d
203, 204 (1991) (reviewing district court's decision that reversed the State
1 Clark County Liquor and Gaming Licensing Board v. Clark
indicates only that the district court remanded the case and ordered the
agency to grant discovery, and this court summarily stated that the order
was not a final, appealable one. 102 Nev. 654, 658, 730 P.2d 443, 446
(1986). Though presumably the district court did not reach the merits, it
is not precisely clear.
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Engineer's decision because the findings were clearly erroneous and an
abuse of discretion); State v. Morros, 104 Nev. 709, 711, 766 P.2d 263, 265
(1988) (reviewing district court's decision that partially affirmed and
partially reversed the State Engineer's grant of various applications).
Furthermore, other courts have recognized that a district
court's order remanding to an agency must be considered practically when
determining whether the order is final and therefore appealable. See, e.g.,
Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011). For
example, an order of remand may be final where "(1) the district court
conclusively resolves a separable legal issue, (2) the remand order forces
the agency to apply a potentially erroneous rule which may result in a
wasted proceeding, and (3) review would, as a practical matter, be
foreclosed if an immediate appeal were unavailable." Id.; Edgewater
Found. v. Thompson, 350 F.3d 694, 696 (7th Cir. 2003) ("Remands usually
are not appealable, because they are not "final" decisions; but remands
that otherwise may escape appellate review may be reviewable
immediately.").
All three of these considerations are present here. First, as
explained above, the district court resolved the main legal issue
underlying this appeal: whether the State Engineer may, consistent with
NRS 533.370(2), leave the determination of how and when mitigation will
occur for a future determination. Second, the appellants argue that the
district court's rulings would force the State Engineer to make rulings
under legal standards he considers erroneous. Finally, there is effectively
no way for the State Engineer to ensure that the remand order and its
legal rulings will ultimately be reviewed because it appears the State
Engineer cannot appeal his own decision, unless he can fall within the
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definition of a person aggrieved by his decision. NRS 533.450(1); see also
Travis v. Sullivan, 985 F.2d 919, 923 (7th Cir. 1993) (finding order
remanding to agency appealable because if the agency representative
complied with the district court's order to conduct a new hearing and
make new findings, the order would be effectively unreviewable; if the
agency representative ultimately awarded the applicant benefits then the
representative could not appeal his own decision, but if the representative
denied the benefits the resulting appeal would concern the merits of the
application's claim, effectively rendering the remand order moot and
therefore unreviewable); Daviess Cnty. Hosp. v. Bowen, 811 F.2d 338, 342
(7th Cir. 1987) (holding similarly).
Applying a functional and practical view of finality, Bally's
Grand Hotel & Casino v. Reeves, 112 Nev. 1487, 1488, 929 P.2d 936, 937
(1996), I would find that the district court's order constituted a final,
appealable decision on the merits. Thus, I respectfully dissent.
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cc: Chief Judge, The Seventh Judicial District Court
Hon. Robert E. Estes, Senior Judge
Attorney General/Carson City
Dana R. Walsh
Lewis Roca Rothgerber LLP/Las Vegas
Gregory J. Walch
Taggart & Taggart, Ltd.
Iris Thornton
Simeon M. Herskovits
Alexander, Berkey, Williams & Weathers LLP
EchoHawk Law Offices
Weinstein, Pinson & Riley
J. Mark Ward
Rhodes Law Office, Ltd.
Lionel Sawyer & Collins/Las Vegas
Kaempfer Crowell/Reno
Attorney General/Reno
White Pine County Clerk
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