Corp. Bishop, LDS v. Seventh Jud. Dist. Ct.

132 Nev., Advance Opinion eat
IN THE SUPREME COURT OF THE STATE OF NEVADA
CORPORATION OF THE PRESIDING No. 65424
BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS ON
BEHALF OF CLEVELAND RANCH, FILED
Petitioner,
vs. JAN 2 8 2016
THE SEVENTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF WHITE
PINE; AND THE HONORABLE
ROBERT E. ESTES,
Respondents,
and
JASON KING, P.E., IN HIS OFFICIAL
CAPACITY AS THE NEVADA STATE
ENGINEER, THE NEVADA
DEPARTMENT OF CONSERVATION
AND NATURAL RESOURCES,
DIVISION OF WATER RESOURCES;
AND SOUTHERN NEVADA WATER
AUTHORITY,
Real Parties in Interest.
Original petition for an extraordinary writ challenging a
district court order on judicial review determining that the State Engineer
properly applied a water law statute to certain applications to appropriate
water.
Petition denied.
Hejmanowski & McCrea LLC and Paul R. Hejmanowski, Las Vegas;
Kaempfer Crowell and Severin A. Carlson, Reno; Lionel Sawyer & Collins
and David N. Frederick and Lynda Sue Mabry, Las Vegas,
for Petitioner.
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Adam Paul Laxalt, Attorney General, and Micheline N. Fairbank, Senior
Deputy Attorney General, Carson City,
for Real Party in Interest Jason King, P.E., in His Official Capacity as the
Nevada State Engineer, Nevada Department of Conservation and Natural
Resources, Division of Water Resources.
Lewis Roca Rothgerber, LLP, and Daniel F. Polsenberg and Joel D.
Henriod, Las Vegas; Taggart & Taggart, Ltd., and Paul G. Taggart and
Gregory H. Morrison, Carson City; Southern Nevada Water Authority and
Gregory J. Walch and Dana R. Walsh, Las Vegas,
for Real Party in Interest Southern Nevada Water Authority.
BEFORE THE COURT EN BANC,
OPINION
By the Court, PARRAGUIRRE, C.J.:
NRS 533.3705(1), enacted in 2007, allows the State Engineer
to subject newly approved water applications to an incremental use
process. In material part, NRS 533.3705(1) provides that "Eu]pon approval
of an application to appropriate water, the State Engineer may limit the
initial use of water to a quantity that is less than the total amount
approved for the application" and then authorize additional amounts for
use at a later date, up to the total amount approved for the application.
Here, we are asked to determine whether the State Engineer improperly
applied NRS 533.3705(1) retroactively by ordering incremental pumping,
and thus limiting the initial water use, for certain applications that were
filed in 1989 and approved in 2012. We conclude the State Engineer did
not give NRS 533.3705(1) an improper retroactive application because the
statute unambiguously applies to only approved applications, and the
present applications were approved almost five years after NRS
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533.3705(1) took effect. Accordingly, we deny petitioner's request for an
extraordinary writ barring the State Engineer from applying NRS
533.3705(1) to the disputed water permit applications.
FACTS
In 1989, real party in interest Southern Nevada Water
Authority (SNWA) filed various water permit applications' with the State
Engineer. Those applications sought to appropriate water from the Spring
Valley Hydrographic Basin for municipal and domestic purposes in
southern Nevada. In 2007, the State Engineer ruled on SNWA's
applications, rejecting some and approving the rest subject to incremental
development in the form of staged pumping and other restrictions on use,
as well as a plan for continued monitoring. Parties opposing SNWA's
applications sought judicial review of the State Engineer's ruling, but the
district court found no material error. The opponents then sought review
from this court, which reversed and remanded, requiring the State
Engineer to republish SNWA's applications. Great Basin Water Network
v. Taylor, 126 Nev. 187, 190, 234 P.3d 912, 914 (2010).
After republishing, many entities, including petitioner
Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints (CPB) opposed SNWA's applications. This dispute
culminated in "a record long six weeks of administrative hearing" in late
2011. Ultimately, the State Engineer issued Ruling 6164 in March 2012
denying some of SNWA's applications and granting others. Invoking NRS
533.3705(1), the State Engineer subjected SNWA's approved applications
'The Las Vegas Valley Water Authority filed the applications, but
SNWA later acquired the rights to those applications.
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to three stages of incremental development and monitoring. That
approval allowed a maximum potential water appropriation of 61,127
acre-feet-annually (afa), assuming no material problems arose during the
course of the incremental development.
CPB, among others, petitioned the district court for review.
The district court rejected CPB's argument that the State Engineer gave
NRS 533.3705(1) an improper retroactive effect, concluding the statute
applies only to approved applications, and SNWA's applications were not
approved until 2012, nearly five years after NRS 533.3705(1) took effect.
Nevertheless, the district court reversed and remanded the State
Engineer's ruling on other grounds. CPB now petitions this court for an
extraordinary writ barring the State Engineer from applying NRS
533.3705(1) to SNWA's applications.
DISCUSSION
CPB has the burden of demonstrating that this court's
extraordinary intervention is warranted. Pan v. Eighth Judicial Dist.
Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). "Whether
extraordinary writ relief will issue is solely within this court's discretion."
MountainView Hosp., Inc. v. Eighth Judicial Dist. Court, 128 Nev., Adv.
Op. 17, 273 P.3d 861, 864 (2012). This court may address writ petitions
when they "raise important issues of law in need of clarification, involving
significant public policy concerns, of which this court's review would
promote sound judicial economy." Int? Game Tech., Inc. v. Second
Judicial Dist. Court, 122 Nev. 132, 142-43, 127 P.3d 1088, 1096 (2006).
We will address CPB's petition because it presents a narrow
legal issue concerning a matter of significant public policy, and its
resolution will promote judicial economy. See id. First, whether the State
Engineer improperly applied NRS 533.3705(1) retroactively is a clear
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question of law. See Sandpointe Apartments, LLC v. Eighth Judicial Dist.
Court, 129 Nev., Adv, Op. 87, 313 P.3d 849, 853 (2013). Second, hundreds
of parties contested SNWA's applications, which are intended to help
secure adequate water for this state's most populous region; therefore, this
is a matter of great public importance. Finally, our intervention will
promote judicial economy by determining the proper application of a
statute that plays an important role in a matter that has spanned 25
years and multiple adjudications. Consequently, our discretionary
intervention is warranted, and we must now determine whether the State
Engineer properly applied NRS 533.3705(1) to SNWA's applications.
The State Engineer did not apply NRS 533.3705(1) retroactively
This court reviews questions of statutory interpretation and
retroactivity de novo. Sandpointe Apartments, 129 Nev., Adv. Op. 87, 313
P.3d at 853. Statutory language must be given its plain meaning if it is
clear and unambiguous. D.R. Horton, Inc. v. Eighth Judicial Dist. Court,
123 Nev. 468, 476, 168 P.3d 731, 737 (2007). "A statute is ambiguous if it
is capable of being understood in two or more senses by reasonably well-
informed persons." Id.
NRS 533.3705(1) was enacted in 2007, and it provides:
Upon approval of an application to appropriate
water, the State Engineer may limit the initial use
of water to a quantity that is less than the total
amount approved for the application. The use of
an additional amount of water that is not more
than the total amount approved for the application
may be authorized by the State Engineer at a later
date if additional evidence demonstrates to the
satisfaction of the State Engineer that the
additional amount of water is available and may
be appropriated in accordance with this chapter
and chapter 534 of NRS. In making that
determination, the State Engineer may establish a
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period during which additional studies may be
conducted or additional evidence provided to
support the application.
2007 Nev. Stat., ch. 429, § 3.5(1), at 2015 (codified at NRS 533.3705(1)).
We conclude the State Engineer did not apply NRS
533.3705(1) retroactively because (1) the statute unambiguously applies to
only approved applications, and (2) SNVVA's applications were approved
almost five years after NRS 533.3705(1) took effect.
NRS 533.3705(1) only applies to approved applications
CPB argues NRS 533.3705(1) impermissibly allows the State
Engineer to use incremental development to draw out the permit-approval
process over many years, in contravention of Great Basin Water Network
v. Taylor, 126 Nev. 187, 234 P.3d 912 (2010), and the 1989 version of NRS
533.370, which required the State Engineer to accept or reject water
appropriation applications within one year. We reject this argument
because NRS 533.3705(1) plainly requires the State Engineer to approve a
total appropriation before he can require incremental development of that
appropriation. 2
2We decline to address CPB's additional argument that the State
Engineer actually used NRS 533.3705(1) to draw out the approval process
here beyond one year. The State Engineer approved the material
applications here within the time frame set forth in Great Basin Water
Network. Moreover, he expressly found sufficient evidence to allow SNWA
to appropriate 61,127 afa before ordering incremental development
starting at 38,000 afa. Whether the State Engineer actually had sufficient
evidence that 61,127 afa was available for appropriation is a factual
inquiry this court declines to undertake in the present context. Round
Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534,
536 (1981) (noting that this court generally will not address factual issues
when evaluating writ petitions).
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By its own terms, NRS 533.3705(1) only allows incremental
development of a water project "[u]pon approval of an application." "Upon
approval of an application" unambiguously means "concurrent with"
approval of an application or "immediately after" the approval of an
application. See Upon, Webster's Third New International Dictionary
(2002) (defining "upon" as "immediately following on," "very soon after,"
"on the occasion of," or "at the time of"). NRS 533.3705(1) plainly makes
application approval and the State Engineer's decision to limit the initial
use of water separate events such that application approval triggers the
possibility for incremental development. Therefore, we conclude that NRS
533.3705(1) unambiguously applies to only approved applications because
reasonably well-informed people cannot reach a different conclusion after
reading NRS 533.3705(1)'s plain language. See D.R. Horton, Inc., 123
Nev. at 476, 168 P.3d at 737.
Applying NRS 533.3705(1) here does not constitute a retroactive
application
"[A] statute has retroactive effect when it takes away or
impairs vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability, in respect to
transactions or considerations already past." Pub. Emps.' Benefits
Program v. Las Vegas Metro. Police Dep't, 124 Nev. 138, 155, 179 P.3d 542,
553-54 (2008) (internal quotation marks omitted). However, "a statute
does not operate retrospectively merely because it draws upon past facts
or upsets expectations based in prior law." Sandpointe Apartments, 129
Nev., Adv. Op. 87, 313 P.3d at 854 (internal quotations marks and
citations omitted).
Here, the State Engineer applied NRS 533.3705(1)
prospectively to applications approved in 2012. NRS 533.3705(1), which
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was enacted in 2007, unambiguously applies only "[u]pon approval of an
application." 2007 Nev. Stat., ch. 429, § 3.5(1), at 2015. The material date
here is the date of an application's approval, not filing, and these
applications were approved five years after the statute took effect. As
such, the State Engineer did not apply NRS 533.3705(1) retroactively
here.
Accordingly, CPB is not entitled to the relief it seeks, and we
deny its petition.
We concur:
J.
Douglas
I) Ida , J.
Pickering
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