Nevada Supreme Court upholds narrow victory in Clark County Commission race

The front of the Nevada Supreme Court Building

The state Supreme Court Thursday upheld a 15-vote victory last November by now-Clark County Commissioner Ross Miller, denying the legal challenge by former Las Vegas City Councilman Stavros Anthony, who was seeking a new election.

Chief Justice James Hardesty wrote the unanimous opinion for the court, disagreeing with Anthony’s attorneys, who argued discrepancies in the voting process met the definition of an election being “prevented.” 

“Because voters had the opportunity to vote in the November 3, 2020, general election and were not prevented from casting their votes for District C, we conclude that the district court properly found that the election was not ‘prevented" under (state law),” Hardesty wrote. “Accordingly, we affirm the judgment of the district court.”

Anthony, a Republican, filed for a recount on Dec. 4, three days after the Clark County Commission certified the results of the District C election in spite of 139 ballot discrepancies in the district. Those discrepancies had caused the board to consider a special election, but then it reversed course. 

The recount resulted in 74 new ballots included in the count, which found that former Miller, a Democrat and the former secretary of state, won by 15 votes, more than the 10-vote margin from the original results. Miller was ultimately sworn in as commissioner.

The seat on the commission was open because Commissioner Larry Brown was term-limited.

During oral arguments, Hardesty pointed to the District Court’s decision to stick with an affidavit filed in District Court by Clark County Registrar of Voters Joe Gloria, which did not indicate that a fair election was prevented. 

After arguments, decision likely coming soon on long-simmering payroll tax, DMV fee lawsuit filed by GOP senators

Photo of the top front of the building with the words Supreme Court of Nevada

After more than 650 days, state lawmakers will soon get an answer from the state Supreme Court as to whether decisions extending two expiring tax sources in the waning hours of the 2019 Legislature were constitutionally valid — with potential major budget implications for the 2021 session on the line.

Attorneys representing both sides tangled before the seven members of the state’s highest court on Monday over the merits of a lawsuit filed more than 21 months ago by state Senate Republicans.

Justices made no ruling on Monday, but beyond the constitutional questions, a decision to uphold the District Court’s ruling last September in favor of Senate Republicans could have major implications for lawmakers crafting the state budget this session. The extended payroll tax rate being challenged in the lawsuit brings in tens of millions of dollars in state tax revenue — meaning legislators could soon be facing a large budget hole with just weeks left in the session.

The lawsuit was filed by eight state Senate Republicans in July 2019 over a pair of bills — one removing a scheduled decrease in a payroll tax and another extending a $1 per transaction DMV technology fee — passed during the 2019 Legislature with less than a two-thirds majority, constitutionally required for any tax increase. 

Legislative Counsel Bureau General Counsel Kevin Powers argued Monday that proponents of the 1990s initiative requiring a two-thirds vote in the Legislature for any tax increase back then had the general goal of requiring a higher bar for legislation that would increase or expand different forms of tax revenue, but that the intent was “never to hamstring the government and impair existing revenues.”

“Both of these bills are consistent with the intent that the voters understood, that existing revenues will not be impaired,” he said. “Simply, the burden on the fee-payer or the taxpayer has remained the same. There has no been no change from one fiscal year to the next fiscal year.”

Justices peppered both Powers and state Deputy Solicitor General Craig Newby (representing the governor’s office and state DMV) with questions about why the actions taken by the 2019 Legislature didn’t meet the constitutional threshold (and two-thirds requirement) of a bill that “creates, generates, or increases any public revenue in any form.”

Justice Douglas Herndon asked why similar “sunset” tax bills from the 2011, 2013 and 2015 sessions required a two-thirds vote. Powers replied that the Legislature's legal division changed its mind in 2019 after researching the issue.

Justice Elissa Cadish asked Newby why the 2019 legislation extending the DMV technology fee — a move that brought the agency an approximate $7 million in additional revenue — shouldn’t count as creation of new revenue, and whether defendants were asking the court to certify that any tax bill with an expiration date could be extended “in perpetuity” with a simple majority.

“Certainly, there could be some negative policy consequences that result from that type of interpretation in terms of the Legislature going forward,” Newby replied. “But that is a decision that the Legislature undertook on the advice of counsel to proceed that way. And, ultimately, this very well may not be the preferred interpretation...but under the circumstances, it is a reasonable interpretation. There is ambiguity within the term ‘increase.’”

Karen Peterson, representing the plaintiff Republican state senators, said that attorneys for the defendants were asking the court to “blindly defer” to the legislative branch and ignore a plain reading of the state Constitution and two-thirds provision. 

“The words used in the constitutional provision are plain, they're ordinary, they're easy to understand and they're unambiguous,” she said. “And the fact that there's another party that has a different interpretation of that constitutional provision doesn't mean that the constitutional provision is ambiguous.”

She also warned that reversing the District Court’s decision and allowing simple majorities to extend expiring tax rates would begin “chipping away” at the ability of legislators to negotiate, compromise, and “fashion a piece of legislation that they can all live with so that they could get their two-thirds vote.”

However, justices appeared skeptical of Peterson’s request for attorney’s fees from defendants in the case — Justice James Hardesty said it seemed a “dangerous and very slippery slope” by asking the courts to determine the behavior of public officials in their official capacity to see if they stepped out of bounds and warranted the awarding of attorney’s fees.

“I fear this would be a never ending legal process where some legislators sue other legislators because they think they stepped out of constitutional bounds and now they're seeking attorneys fees,” he said.

The court’s decision could have a substantial effect on the roughly 22,000 state businesses that pay the Modified Business Tax, a 1.475 percent payroll tax assessed on businesses with more than $50,000 in taxable wages per financial quarter. Businesses in the finance and mining industries pay a 2 percent rate. 

The current tax rate was set in 2015 through former Gov. Brian Sandoval’s efforts to raise more than $1.1 billion in new and extended taxes for K-12 education funding, but included a provision to automatically lower the tax rate if revenue exceeded projections set by the state Economic Forum.

That tax rate “buy-down” was triggered in late 2018 and was set to take effect in July 2019, but Gov. Steve Sisolak and legislative Democrats moved to keep the higher tax rates in place as a way to retain tens of millions of dollars in tax revenue. Attorneys with the Legislative Counsel Bureau issued an opinion in early May stating a two-thirds majority was not required to nix the scheduled payroll tax decrease.

The lawsuit also challenged an extension of a $1 per transaction “technology fee” assessed by the state DMV, initially approved in 2015 to help the agency pay for a system modernization project, but that was extended out to 2022 during the 2019 Legislature without a two-thirds majority vote. The DMV is asking lawmakers this session to extend the fee through 2026, following past complications and delays with the system modernization plan.

The decision is coming later than either side likely expected — Republicans initially said they hoped for a decision before October 2019, and Democratic legislative leadership wanted “clarity” on the matter before the start of the 2021 session. Republican Senate Minority Leader James Settelmeyer said in a statement Monday that he was “confident the Supreme Court will recognize the historical significance of this provision and uphold the District Court ruling.”

Monday wasn’t the first time the case had gone to the state Supreme Court — the state’s highest court actually issued an important procedural ruling in mid-2020 allowing attorneys with the Legislative Counsel Bureau to represent defendants in the case, even though the plaintiffs were also state lawmakers.

Lawyers argue before Nevada Supreme Court over close Clark County Commission race

The front of the Nevada Supreme Court Building

The state Supreme Court heard oral arguments Wednesday morning in a months-long case over an exceptionally close Clark County Commission race, with lawyers arguing whether discrepancies in the voting process met the definition of an election being “prevented.”  

Las Vegas Councilman Stavros Anthony, a Republican, filed for a recount on Dec. 4, three days after the Clark County Commission certified the results of the District C election in spite of 139 ballot discrepancies in the district. Those discrepancies had caused the board to consider a special election, but then it reversed course. 

The recount resulted in 74 new ballots included in the count, which found that former Secretary of State Ross Miller, a Democrat, won by 15 votes, more than the 10-vote margin from the original results. Miller was ultimately sworn in as commissioner.

In Wednesday’s appeal hearing, Anthony’s attorney, Michael Wall, hewed to the same argument he made at a November lower court hearing, when his request to stop results certification was denied. Mark Hutchison, another Anthony lawyer, said that comments made by Clark County Registrar of Voters Joe Gloria showed that an effective election had been “prevented” in the district because of ballot discrepancies.

“As a result [of the discrepancies], I cannot certify that the vote is an accurate representation of the will of the voters in that district,” Gloria said in the affidavit. “In my professional opinion as an election official, it raises a reasonable doubt as to the outcome of the election.”

Hutchison said that these discrepancies entitle Anthony and District C voters to a new election according to NRS 293.465, which says that a new contest is appropriate if “an election is prevented in any precinct or district by reason of the loss or destruction of the ballots intended for that precinct, or any other cause.” 

Chief Justice James Hardesty, however, pointed to the district court’s decision to stick with Gloria’s affidavit, which did not indicate that the election was prevented. 

“What the registrar said, to the logic to the Commission, was he could not certify the election,”  Wall said. “Nothing in the statute says that the registrar has to use the words ‘the election was prevented.’ The registrar used words which indicate, in his opinion, that there is no winner, there is no election that can be certified.”

Ballot discrepancies can occur when voters cast multiple ballots, when check-in numbers at voting sites don’t match up with the number of ballots cast at that site or as a result of various mail-in ballot issues. Gloria previously said that these discrepancies occur in every election.

Bradley Schrager, representing Miller, argued that neither Gloria nor the District Court, in its findings and conclusions, saw this as a “293.465 election.” 

“There was no election prevented here. What there was was statistical anomalies,” he said. “Mr. Anthony has not placed any ballots in question. There is no allegation that any ballot was counted that shouldn't have been. There's no allegation that any ballot wasn't counted that ought to have been. Neither is there any indication of any incident that can be directly linked to harm or prejudice to Mr. Anthony.”

However, Schrager suggested another statute — NRS 293.410 — would fit the case better as it includes instances in which the election board “made errors sufficient to change the results of the election, as to any person who has been declared elect.” 

“That's the terrain that Mr. Anthony ought to have been fighting,” Schrager said. “293.465 is a voter access statute; it is not a candidate protection statute.” 

The Supreme Court did not immediately issue a ruling after arguments.

Two water infrastructure projects and the complex puzzle to improve ‘efficiency’

Good morning, and welcome to the Indy Environment newsletter.

As always, we want to hear from readers. Let us know what you’re seeing on the ground and how policies are affecting you. Email me with any tips or suggestions at daniel@thenvindy.com

To get this newsletter in your inbox, subscribe here.


It’s infrastructure week, and I’m finally writing about something on my mind: Seepage.

In 2015 and 2016, a lot of my time was spent reading documents and testimony filed with the Public Utilities Commission of Nevada. Most of my reading was focused on understanding the big rooftop solar fight. But when you read those long regulatory filings, you often learn about other things. And one of the things I learned about was efficiency — that it’s not so simple.

The same thing is true with water, although it plays out in different ways. And over the past few months, I’ve been thinking a lot about “efficiency” in the context of water infrastructure projects. On the other side of increasing “efficiency” is often someone who is losing out on water. That, in addition to the cost, can make these infrastructure projects challenging. 

First, the Truckee Canal. 

The canal, constructed in the early 1900s, starts about 25 miles east of Reno and diverts part of the Truckee River through the growing town of Fernley and to farms in the Fallon area. But the canal also reduces how much water would naturally flow through the river into Pyramid Lake. 

In 2008, the earthen canal burst open and flooded hundreds of homes in Fernley. Federal water managers wanted to prevent that from happening again, and in December, the U.S. Bureau of Reclamation approved a solution: to line parts of the canal with synthetic material and concrete. Doing so could address flood safety concerns, and from a water management standpoint, the project could make the canal more “efficient.” Right now, water seeps through the canal and into a local aquifer. Once lined, water could be delivered to Fallon with less loss to the system. That could, in theory, result in less water diverted away from the Truckee River and Pyramid Lake.

But the project presents a major problem for the city of Fernley. Earlier this month, lawyers for the city sued federal water managers over a plan to place barriers around parts of the canal, alleging that the city relies on water seeping through the canal — the seepage is accounted for. 

The lawsuit, as the Associated Press reported, said the town is “utterly reliant on seepage from the canal to keep the aquifer recharged and in a healthy condition.” What might appear to look like “efficiency” to one — the lining of a canal — might appear to cut off water rights to another. 

A spokesperson for the federal agency declined to comment, with the litigation pending, but the agency wrote in its decision last year that not all parts of the Fernley area would be lined. That would allow for some water to continue seeping into the Earth, despite the fact that the agency argues, under the law, that it is not required to ensure a certain amount of seepage in the area.  

And it’s not the only project that has caught my eye over the past few months. Earlier this year, the USDA’s Natural Resources Conservation Service floated a project to upgrade portions of the Steamboat Ditch, a different diversion on the Truckee River that starts west of Reno and snakes its way through the city, supporting an ecosystem for a popular nature area on the way.

As I’ve written before on this, where there is water, there is also vegetation and wildlife. And the path adjacent to parts of the unlined ditch are popular for hikers and runners (including myself).

In this case, the agency proposed several options, but one possibility was to turn several miles of the ditch into a pipeline. The goal was to improve flood protection — and seepage permeating through the groundwater had affected homes near the canal. The project had the added benefit of efficiency. After all, the ditch is diverting water that naturally flowed through the Truckee River. Again, efficiency could, in theory, mean more water flowing in the river and into Pyramid Lake.

But there was a serious downside to limiting water loss and seepage. Piping the water, instead of letting it flow through unlined ditches, could have left a popular recreation area parched. And environmentalists and recreationists raised many concerns about the impact of such a proposal on established wildlife and vegetation that has now existed in that area for more than a century. 

The agency halted its planning process earlier this year. 

These situations are not entirely comparable, and I’m not intending to compare and contrast them. It’s just to say that changing existing water infrastructure is difficult because someone is often benefiting from the way things currently are done. Of course, a big question in both of these situations is where will the “conserved” water go? Will it go back to the Truckee River and increase the amount of water that’s flowing to Pyramid Lake? Or will it go to other users?

Bracket, for a moment, whether you think the projects are right or wrong — or even a matter of settled law. The point here is just to say that it is all more complicated than it might seem at first. I’ll be writing more about the Truckee Canal as the case makes its way through the courts. 

Here’s what else I’m watching this week:


THE LEGISLATURE

Mining tax remains in the mix: Legislative leaders are still weighing three resolutions that look to increase revenue by changing the tax formula for mining, my colleague Riley Synder reports in his biweekly newsletter, Behind the Bar. “[Senate Majority Leader Nicole] Cannizzaro refused to close the door on any of the three proposed constitutional amendments changing the mining tax rate that were passed during the 2020 special session. She said that a hearing on any of the three would likely come later in the session, but also refused to rule out the possibility that lawmakers could pass two or more of the resolutions to head to the 2022 ballot.”

The right to repair: “Environmentalists and electronic repair shops on Monday hailed a bill making it easier for consumers to repair their electronic devices as a way to reduce toxic waste,” reports Tabitha Mueller. “But technology firms criticized the legislation for potential cybersecurity risks and unintended consequences.”

WATER 

Most of the state is in severe drought: “The entire state has been flagged for dry conditions, with 92 percent of the state in what climatologists classify a ‘severe’ drought,” Amy Alonzo writes for the Reno Gazette Journal. “Throughout the state, Nevadans will see various drought impacts – a potential uptick in wildlife and bears encroaching into residential areas in search of food; more dust; closed boat ramps; and extended fire season and activity for some areas.”

Supreme Court OKs a water commission: In February, we reported that Chief Justice James Hardesty was eyeing a commission to study how water cases are adjudicated and the possibility of setting up specialized “water courts.” Earlier this month, the court voted in favor of creating a commission on water law. 

Real water faces lawsuits, investigation: Real Water, a Las Vegas-based company founded by former Republican Assemblyman Brent Jones, is facing more consumer lawsuits that link its  bottled water to severe illness, including the hospitalization of a UFC fighter. David Ferrara, with the Las Vegas Review-Journal, is following the story

PUBLIC LAND

The federal government’s atomic legacy: Susan Montoya Bryan, with the Associated Press, reports on a renewed effort to compensate those exposed to radiation from nuclear testing during the Cold War. “Lawmakers from several Western states, advocacy groups and residents have been urging Congress to expand a payout program for years, and advocates say the latest push takes on added weight because the Radiation Exposure Compensation Act is set to expire next year. Wednesday’s hearing was the first on the issue since 2018, advocates said.”

A national monument and a proposed wind farm: Energy developer Eolus North America submitted a new application for a wind project in southern Nevada. The project is a smaller version of the Crescent Peak project, which the Department of the Interior rejected in 2018. But the company is proposing to site the project in an area where a coalition of environmental groups and local tribes are advocating for a new national monument. Shannon Miller and Tyler Harrison report on the issue for Fox 5 Vegas.  

Group petitions to list rare buckwheat: The Center for Biological Diversity is asking federal land managers to protect 4,015 acres of land surrounding the Tiehm’s buckwheat, whose only known 10-acre range of habitat, overlaps with the footprint of a proposed lithium mine.

ENERGY

The Department of Energy is looking to cut the cost of solar in half by 2030. 

A lithium pilot project: “A Houston-based oilfield company announced plans...to launch a lithium extraction plant in Nevada, capitalizing on the growing demand for battery material. Schlumberger’s New Energy division said its new venture, NeoLeith Energy, will launch a pilot plant in Clayton Valley. Officials said it would extract lithium from brine while reducing water consumption by over 85 percent compared with current methods,” Jonathan Ng writes for the Las Vegas Review-Journal.

Update: This post was updated at 5:45 p.m. on March 31, 2021 to note that a proposed wind project outside of Las Vegas is called the Crescent Peak project. An earlier version of this story described it as the Crescent Dunes project.

Open government advocates worry proposed legislation will conceal deliberations about environmental issues. That's only half of the story.

Trucks at mine site.

Good morning, and welcome to the Indy Environment newsletter.

As always, we want to hear from readers. Let us know what you’re seeing on the ground and how policies are affecting you. Email me with any tips or suggestions at daniel@thenvindy.com

To get this newsletter in your inbox, subscribe here.


The federal government requires them. Standard confidentiality clauses.

The agreements are rarely discussed. But they are central to SB77, a proposed state Senate bill that could exempt certain pre-decisional meetings and records involving environmental issues from the Open Meeting Law and Public Records Act. Eureka County, a main proponent of the bill, has argued a change is needed to comply with both the federal agreements and state law.

April Corbin Girnus wrote an excellent piece about the issue for the Nevada Current: Right now, counties are often hampered by confidentiality rules. To discuss issues, they are stuck between following (or breaking) the federal confidentiality agreements and the state’s transparency laws.

But open government advocates have argued that the proposed bill would limit transparency in a process that has real-world consequences — whether mines are approved or power lines are erected. Ahead of a recent hearing, a coalition representing environmental groups, civil liberty advocates and news organizations, sent an opposition letter that’s worth reading (here’s a link). 

It is worth noting, too, that Eureka County’s natural resource manager, Jake Tibbitts, said the county opposes changes to the Public Records Act, and he is working to amend the drafted bill.

“If this were to move forward, we're totally open to stripping out all of that,” he said.

What struck me was why this bill was proposed in the first place. When the legislation was floated last fall, it was the first time I had heard of these federal confidentiality agreements. Given the federal government’s large role in permitting projects, they struck me as significant. 

Before I get into that, some incredibly technical (but important!) background:

Every year, dozens of local governments, tribes and state agencies participate in what is known as the NEPA process. NEPA stands for the National Environmental Policy Act. A lot can be said about it, but for now, the most important thing is that it requires federal agencies to analyze the environmental consequences of projects on federal land — and the outcome is significant. 

Nevada is about 85 percent federal land, so there are a lot of NEPA proceedings happening at any given time — and in many different corners of the state. When a federal agency starts the NEPA process, they invite local and state agencies to act as “cooperating agencies” during the crafting of an environmental analysis. It allows local and state agencies to convey opinions in an otherwise federal process. But there’s a downside: This is where confidentiality comes in.

These cooperating agencies — Churchill County or the Nevada Department of Transportation, for instance — must sign agreements with federal land managers, like the U.S. Bureau of Land Management (BLM). But the agreements, a BLM spokesperson said, include standard language about confidentiality to prevent the “release of predecisional information or working documents.”

That puts a jurisdiction like Eureka County, an entity governed by three county commissioners, in a tough position. The county, at the center of the state’s gold mining activity, wants to have a say in the process for analyzing environmental impacts. To participate, they must agree to keep information confidential. At the same time, the Open Meeting Law requires that elected officials deliberate in public. But if they deliberate in public, they risk breaking the confidentiality clause. 

In 2009, the BLM chastised the county for doing just that: The Eureka Sentinel disclosed a report that showed pumping associated with a controversial molybdenum mine would have big effects on water. The disclosure suggested that the county broke its confidentiality agreement.

To avoid the issue, Tibbitts or one county commissioner typically represents the views of the county in the NEPA process. But state law limits their discussions with other elected officials. 

“It's been a whole struggle for me the whole time I've been here,” Tibbitts said.

This is especially a problem in rural counties that have small staffs or lack departments devoted to natural resources issues. Instead, a single county commissioner might take the lead in representing a county’s interests without being able to deliberate with their colleagues. 

But is Open Meeting Law the best venue by which to address the issue? That’s another question.

Open government advocates and environmentalists say no. They argue that a federal fix to the confidentiality language, stemming from the “deliberative process exemption,” might be needed. 

“The answer isn’t less transparency,” said Patrick Donnelly, the state director for the Center for Biological Diversity. “The answer is more transparency. Let’s not make things worse.”

Donnelly sees SB77, as written, fitting into efforts to weaken state law around open government. 

He is also watching AB39, an Assembly bill that would exempt agencies from disclosing their deliberations prior to making a decision. Such a move would make it harder for the public to understand the interagency process, and in some cases the science, informing decisions.

“It would eliminate transparency,” he said. “Most public records requests I've ever done, which have resulted in important finds for our conservation campaigns, would have been exempted.”


Here’s what else I’m watching this week:

CLIMATE CHANGE 

The Clark County Commission meeting. Yes, I’m aware that everyone tuned into the Clark County meeting on Tuesday for a different item: To watch the commissioners vote to change the name of the Las Vegas airport, currently dedicated to former Sen. Pat McCarran, a virulent and well-documented bigot. Now, with the FAA’s approval, it will be named for one former Sen. Harry Mason Reid. But all that to say, there was another big item on Tuesday’s commission agenda:

  • The Clark County Commission gave its unanimous approval to a climate action plan (here’s a link to the plan). It’s a major step for the state’s largest local government. With the majority of Nevada’s population, Clark County could play a key role in planning for more extreme heat and drought. “The impacts of climate change are very real and they are upon us,” commission Chairman Marilyn Kirkpatrick said Tuesday. “As a county set in the Mojave Desert, we know what’s at stake with our water and energy supply and intensifying heat island impacts. This plan recognizes those unique challenges.”

“First-hand experience:” Assembly Speaker Jason Frierson cited “Nevada’s diverse population and first-hand experience in issues relating to climate change, public lands, immigration and health care” as reasons why we have “a unique voice that deserves to be heard first” in nominating presidential candidates. Why we aren’t already first? I don’t know. POLITICO’s Tyler Pager and David Siders have more on that.

Natural gas in the Legislature: Gov. Steve Sisolak’s climate strategy recognized the need to transition away from natural gas to meet a goal of reducing total greenhouse gas emissions to net-zero by 2050. As I’ve written about before, this issue is coming to Carson City. Earlier this month, Assemblywoman Lesley Cohen (D-Henderson) wrote an opinion piece for The Nevada Independent about why she is proposing legislation that would require gas utilities to undergo a more rigorous regulatory process when building new infrastructure. The bill would also require that state utility regulators study natural gas in the context of the state’s climate goals. Nevada’s largest gas utility, Southwest Gas, responded to the op-ed on Nevada Newsmakers last week. 

The natural gas PR-person Nextdoor: Mother Jones climate reporter Rebecca Leber digs into the tactics that the fossil fuel industry is using to influence customers to believe that natural gas stoves are preferable to electric stoves. The story includes an example from California, where an employee for a PR firm logged onto Nextdoor to stir up opposition to an electrification effort. Spoiler: There are Instagram influencers too. The reporting provides context for how the natural gas industry is doubling down on past efforts to sell gas stoves amid efforts to reduce fossil fuel use to combat climate change and a growing recognition of the health problems caused by indoor air pollution.

Texas, the electric grid, and climate change: The L.A Times’ Sammy Roth writes that “for all the differences between the events in Texas and California’s more limited rolling blackouts last year, there’s a common lesson: Extreme weather events are becoming more frequent and more severe as the climate crisis worsens. And the U.S. power grid is not prepared to handle the hotter heat storms, more frigid cold snaps and stronger hurricanes of a changing planet.”

WATER AND LAND

Shout it from the rooftop: You can’t build a new city without water. When I heard Gov. Steve Sisolak tout Blockchains LLC in his State of the State — with the words “smart city” — I could not help but ask about the water. We started digging, and what we found was that Blockchains, a big donor to politicians (and The Nevada Independent), wants to pipe water from rural Nevada. It scooped up water rights in northern Washoe County for more than $30 million and has also looked elsewhere, including in Humboldt County. The big takeaway here: Development of any sort, though especially a new city, is a question of natural resources as much as anything else. 

Rancher sues BLM over lithium mine: A Northern Nevada rancher is suing the U.S. Bureau of Land Management over the Trump administration’s approval of the Thacker Pass lithium mine north of Winnemucca. The lawsuit alleges that the land agency’s approval, in the final days of the administration, violated environmental laws, the Sierra Nevada Ally’s Scott King writes.

Judge rules against lifting mining moratorium: “A federal judge on Thursday overturned a Trump administration action that allowed mining and other development on 10 million acres (4 million hectares) in parts of six western states that are considered important for the survival of a struggling bird species,” Matthew Brown reported for the Associated Press last week. A District Court judge ordered the Bureau of Land Management to reconsider the Trump administration’s decision, which did not fully consider how it would affect the imperiled Greater sage grouse.

The commission to study water law: A few weeks ago, we reported that Supreme Court Chief Justice James Hardesty planned to empanel a commission to study how water law is viewed in the judicial system and examine whether to create specialty water courts. An order requesting the creation of such a commission is now online, and a public hearing is scheduled for March 3.

Reno attorneys fined in Swan Lake flooding lawsuit: A Washoe County District Court judge fined City of Reno attorneys “$1,500 for failing to admit to facts in the Swan Lake flood case filed by Lemmon Valley residents,” Bob Conrad reported for This is Reno. “The sanction is on top of awarding more than $750,000 in damages to plaintiffs in the case. The award does not include attorney fees, which could double the amount owed to plaintiffs and attorneys.”

Contact tracing in wastewater: “Findings from wastewater testing suggest the U.K. variant of the coronavirus is circulating in Southern Nevada, according to one UNLV researcher, but the prevalence of the more contagious variant is unclear,” the Review-Journal’s Blake Apgar writes.

Some ranch sales are just out of this world.

OUTDOOR RECREATION

Boost in outdoor activities: The Nevada Department of Wildlife (NDOW) saw a jump in hunting and fishing license sales during the pandemic — and 2021 is expected to be better, Sudhiti Naskar reports for This is Reno. Our reporter Tabitha Mueller broke down the numbers in our legislative newsletter (you should sign up to receive it). “If there is a silver lining, it's in people's turning to nature for mental health, or physical health," NDOW Director Tony Wasley said in January.

Where to see dark skies: The Reno Gazette Journal has a few suggestions. 

Update: This story was corrected at 9:09 a.m. on Thursday, Feb. 18 to indicate that NEPA stands for the National Environmental Policy Act, not the Nevada Environmental Policy Act, as an earlier draft stated.

As Sisolak administration abandons move to upend legal system for water rights cases, Supreme Court may study new specialty court

On Monday, the first day of the legislative session, the state’s top water regulator sent a letter to the chair of the Senate Judiciary Committee Melanie Scheible: Gov. Steve Sisolak’s administration was backing away from a request that state lawmakers, then the voters, change the Constitution and alter the judicial branch’s system for how often-complex water cases are litigated in court. 

As the state moves away from the proposal, Supreme Court Chief Justice James Hardesty said he plans to petition his colleagues to empanel a commission that will examine the creation of specialty courts, known as water courts, to bring more water law expertise to the judiciary.

“It’s important to note, of course, that water law is a very complex and challenging area of the law. Because of that, it is also a very unique speciality. So it makes sense that when reviewing decisions by the state engineer and other water law matters, people need to be trained up to appropriately handle those cases,” Hardesty said, referring to Nevada’s top water regulator, the state engineer. “And that’s an approach that’s taken in some other states.”

Even before he learned about the state’s proposal, Hardesty said he had been exploring the creation of a panel to look at judicial decision-making around water. In an interview Tuesday, Hardesty said he expected the petition to be available by next week, with a public hearing on the issue in March. A majority of justices must approve the petition to create the commission.

Hardesty said that “in many areas of water law people don’t agree. But at least on this topic, it appears that there is wide-ranging agreement that the Supreme Court undertake this effort.”

The Supreme Court’s potential formation of a commission provides an alternative pathway for a conversation that the state hoped to have on its proposal, one that ultimately raised red flags. 

The state’s effort, as with the Supreme Court commission, looked to address a similar issue: to ensure that the judiciary has a strong understanding in water law when deciding cases. And it comes as the state is likely to face continued in-depth proceedings over conflicts across the state, from the contested Coyote Springs area near Las Vegas to the Humboldt River Basin.

Not moving forward with legislation

By the time lawmakers arrived in Carson City on Feb. 1, water users and legal observers had raised many concerns about SJR1, an unusual proposal from an executive branch agency. 

The Senate joint resolution aimed to kickstart a long process to amend the Nevada Constitution, giving the Court of Appeals, rather than locally elected District Court judges, the first chance to hear cases challenging the way state officials decide to adjudicate, permit or manage water. 

That meant that if a water user in Eureka, for instance, wanted to dispute a state ruling on water rights, the complaint would be heard by a court based in Carson City or Las Vegas, hundreds of miles away, by a panel of statewide judges that, in all other matters, only hear cases on appeal. 

The request by the agency raised questions about the separation of powers. In centralizing cases, it appeared to limit access to the judicial system for rural water users and shift the representation of the courts.

In an interview, acting State Engineer Adam Sullivan, who leads the agency as the state’s top water regulator, said he understood those concerns and agreed with them. Sullivan said they were a primary reason for deciding not to pursue the joint resolution as it was drafted and introduced.

“I agree with those [concerns],” Sullivan said. “And that’s why we’ve expressed our intent to not really pursue SJR1 the way that it was written, because we don’t want to create problems.”

“We’re trying to have a solution-oriented approach to this,” he added.

But Sullivan and the agency’s deputy administrator, Micheline Fairbank, also said aspects of SJR1 were misinterpreted. The original proposal was not intended to be a constitutional amendment, which the Legislative Counsel Bureau, the office that assists with drafting bills, believed was required. 

The concept of giving the Court of Appeals original jurisdiction, she added, was meant to start a dialogue. When water users want to challenge a decision by the state agency, they can petition a District Court to review the decision. These cases, she noted, are appellate in nature. 

The idea behind identifying the appellate court, Fairbank said, is that you would have a small group of judges that, over time, by way of hearing many water cases on a variety of subjects, would develop a subject-area expertise in water law. 

Both Sullivan and Fairbank said they are open to other ideas. 

“We are really supportive of what Justice Hardesty has taken on,” Sullivan said last week. “It’s still really early in the process, and we’re pleased to see the direction that this is all going.”

The Supreme Court commission

As the legislation was being developed, state water officials reached out to Hardesty.

“One, they wanted to apprise me of SJR1 and get my reaction to that,” he said. “But in addition to that, they had heard that I had expressed a willingness to consider this alternative approach.”

Hardesty said he met with state officials on Nov. 20, two days after SJR1 was pre-filed. He told state water officials that they could pursue the amendment, but noted it’s a long process. 

“If your goal is to try to improve the adjudication of water matters,” Hardesty recalls saying, “it would seem to me to make more sense to go down a path that produces a result that is a lot quicker than amending the Constitution and doing it in a way that, frankly, would be disruptive to the voters’ approval of the constitutional amendment that created the Court of Appeals.”

The Court of Appeals is a three-judge body that was approved by voters in 2014, making it a new institution in the Nevada judiciary. The appellate court is assigned appeals by the Supreme Court according to the Nevada Rules of Appellate Procedure 17. Court rules reserve administrative agency cases involving water, public utilities and taxation for the Supreme Court. 

Hardesty said “having the Court of Appeals work on water law cases would be inconsistent with the goals and objectives of the creation of the Court of Appeals in the first place.” He said that it was meant as an “error-correction court” that resolves cases that are largely not precedential.

But if not the Court of Appeals, then who? Hardesty is looking at the concept of water courts, developed in other states, most notably Colorado, and other alternatives to the current system.

Water courts, like other speciality courts, could be created by the Supreme Court, he said.

He said the commission, which he emphasized would be public and transparent, would aim to generate “recommendations to the Supreme Court either to not pursue anything further or to consider various alternatives for how to approach the handling of these cases in the future.”

Once the petition for the commission is filed, there would be a public hearing where “people who have interests in this topic can come in and express their points of view about this approach.”

Water courts? Educational training?

Administrative legal questions that are studied by the Supreme Court often deal with issues that directly affect practitioners of the law. But the way water is litigated can affect everyone from small ranchers to large developers. 

Debbie Leonard, a Reno-based water attorney, said it is important for all voices to be heard early on in the Supreme Court process to thoroughly frame the issue and what alternatives the commission should examine.

“There’s a lot of stakeholders out there who spend a lot of time on water issues in court,” she said. “Getting that context and lay of the land ahead of time could be really beneficial.”

Multiple water attorneys and groups that represent a variety of different water users said that a Supreme Court process could result in bringing more expertise to water law-related decisions.

But different groups have different definitions of the problem. 

David Rigdon, an attorney for the law firm Taggart & Taggart, said that as the commission looks at how to deepen water expertise in the judiciary, it “should also be looking at ways to shore up the administrative process so judges have a really good record to look at.” 

He said issues stem from how the state keeps its administrative record. The water agency does not have to follow the Administrative Procedures Act in the way other agencies do. If the state keeps better administrative records, District Courts can write more precise decisions, he argued.

And some question whether District Court judges are routinely producing inconsistent opinions.

Jeff Fontaine, who leads the Central Nevada Regional Water Authority and the Humboldt River Basin Water Authority, said that it’s important to clearly define the problem that the state is looking to solve. Together, the groups represent rural counties over about two-thirds of the state.

“Quite frankly, we weren't totally sure of the need for SJR1 nor did we support the merit of the bill,” he said. “District Courts have been deciding water law cases since we've been deciding water law cases in the state of Nevada… It's not anything we saw a need to change or alter.”

Kyle Roerink, who directs the Great Basin Water Network, cautioned against major changes to the current system and stressed preserving access to the courts for rural water users.

“If there are pragmatic ways to ensure that judges across the state are educating themselves on water law — that's not something I would oppose or think ill of,” Roerink said.

In many cases, the expertise of a judge can vary depending on geography. Many water cases are concentrated in Northern Nevada, and fewer cases usually come to courts in Clark County. 

“In my experience, it really depends on the District Court that you’re in and if you’re in a county where there tends to be more water disputes and challenges of a state engineer's opinion,” Sev Carlson, a water attorney for Kaempfer Crowell, said in an interview last week. 

Steve Hartman, a water attorney who represents the Carson City-based Vidler Water Company, said he has seen fewer District Court judges well-versed in water law over the years. He said it would be valuable for more judges to have training that would allow them to evaluate technical geologic and engineering data and science. 

"We are at a point in time now where the complexity of water law and water-related issues need to be addressed by folks who have had an exposure and understand in depth the issues that surround water — and we don't have that,” Hartman said. 

Hartman and several other attorneys, including the state engineer’s office, pointed out that the National Judicial College has a program that provides water law training to judges. They said this would be a good starting point to provide judges with more water expertise. 

Fairbank, a deputy administrator for the state engineer’s office, said that Nevada judges have less participation in the National Judicial College’s program than judges in other states. She said programs like that are important to ensure District Court judges make informed decisions.

“Good decisions and good outcomes don’t always necessarily mean that our office prevails or the person who’s challenging us prevails,” she said. “But you want to go ahead and have a thoughtful analysis that takes into consideration, not only the disputes that are before the, but the larger impacts.”

NV Supreme Court denies Trump campaign lawsuit seeking overturn of presidential election

The Nevada Supreme Court has ruled unanimously to dismiss an appeal filed by President Donald Trump’s campaign seeking to overturn the state’s presidential election results.

Members of the court wrote in a 6-0 opinion published late Tuesday that the Trump campaign had failed to show any serious errors or flaws in Carson City District Court Judge James Russell’s order last week that would warrant a reversal. Russell’s order denied the campaign’s election contest lawsuit amid findings that the campaign had not backed up its claims of mass voter fraud throwing the state’s presidential election results into doubt.

The three page order states that the Trump campaign failed to identify any direct “unsupported factual findings” in Russell’s order that it wished to challenge under the appeal, and the court itself has “identified none.”

"To prevail on this appeal, appellants must demonstrate error of law, findings of fact not supported by substantial evidence, or an abuse of discretion in the admission or rejection of evidence by the district court,” members of the court wrote in their order. “We are not convinced they have done so."

Though the Trump campaign can still appeal the decision to the U.S. Supreme Court, Tuesday’s decision is yet another blow to the campaign’s multi-faceted and thus far failed effort to overturn the results of the presidential election in Nevada and a handful of other closely decided swing states where former Vice President Joe Biden prevailed over Trump. The campaign has filed a litany of unsuccessful lawsuits in other states including in Pennsylvania, where the U.S. Supreme Court earlier Tuesday denied a last-minute attempt to overturn results in that state.

Biden won a 33,596-vote victory over Trump in Nevada.

Any future appeals will face another burden — Tuesday marks what’s known as the “safe harbor” deadline, a federal election-related date by which states need to certify election results or resolve related litigation before members of the Electoral College meet to cast their votes for president on Dec. 14.

In a statement published after the ruling, the Nevada Republican Party said it was "extremely disappointed" in the court's decision and said it had "rushed to judgment in the same flawed manner" as the District Court.

"We were not afforded an opportunity to write our brief or argue the case in front of the Supreme Court," the party said in a statement. "Full denial of legitimate due process and appellate rights is truly unprecedented, shocking and extraordinary."

The Trump campaign announced that it would file a lawsuit seeking to overturn the state’s election results in mid-November during a press conference in which campaign attorney Jesse Binnall flatly declared that Trump had won the state but was thwarted by mass voter fraud. It sought to have a judge either award the state’s electoral college votes to Trump, or prevent the state from casting its six electoral votes.

The lawsuit recycled claims that Clark County’s use of an automated signature verification machine was unlawful and allowed fraudulent ballots to be counted (a claim rejected in pre-election litigation also brought by the campaign) and claimed that tens of thousands of votes were cast by improper voters, including the deceased, non-state residents and noncitizens. The campaign also submitted depositions from anonymous whistleblowers who made outlandish claims about vote totals on machines changing overnight and a pro Biden-Harris bus arriving at an early vote site in which workers were said to have filled out dozens mail ballots.

The Trump campaign requested that most of its evidence be filed under seal, meaning much of the evidence isn’t publicly viewable.

But Russell, who was assigned to the case in Carson City District Court, summarily dismissed its claims of voter fraud and request for an overturn of election results in a ruling on Friday, writing that the campaign’s evidence provided “little to no value” based on questionable or “unsound” methodology, adding that the evidence failed to show any “credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud.”

The Trump campaign nonetheless appealed the decision to the state Supreme Court on Monday, saying in filings that the court failed to take into account “expert” testimony provided by the campaign and applied a higher evidentiary standard than required to prove sufficient voter fraud had occurred.

“The massive scale of illegal and improper ballots that were counted casts reasonable doubt on the outcome of the election and requires the statutory remedy of nullification,” attorneys for the campaign wrote in a supplemental filing late Tuesday.

But the order filed Tuesday by the state Supreme Court states that the Trump campaign did not demonstrate any “legal error” in Judge Russell’s application of the state’s election law contest, and that Russell did not err in applying a higher burden of proof (noting that Russell still opted to consider the evidence and reject it even under a lesser standard.)

Democrats filed the motion on Monday asking the court to dismiss the suit and certify the state’s election results, writing in a supplemental brief on Tuesday that the Trump campaign had failed to provide “even a shred of credible evidence” and that the appeal should be considered “frivolous in light of the thoroughness of their defeat and the extraordinary high bar they must satisfy to overturn the district court’s fact-bound determinations.”

“Contestants have thus far identified no legal error committed by the district court and instead offer an improper invitation to this Court to invade the factfinding ambit of the district court, reweigh the evidence, and ignore the conspicuous logical and evidentiary gaps littered throughout the record,” attorneys for the Democrats wrote in the filing.

Prior to the decision, the Trump campaign also filed a motion seeking to disqualify Justice James Hardesty from the case, stating that the judge demonstrated “actual bias or prejudice” for one of the candidates because he congratulated the state’s Republican Secretary of State Barbara Cegavske last month for “carrying out an extraordinarily successful election.” Hardesty is a registered Democrat, but the seven members of the state Supreme Court run for office without party affiliation.

Attorneys for the president’s campaign argued that those comments essentially equated to Hardesty casting judgement on the election results, and that overseeing a case seeking to overturn the results would run afoul of rules against bias. 

Hardesty said in a written response that his comments were “an appropriately courteous and professional response and in no way reflects any predisposition or opinion by me,” and did not reflect any engagement of a judicial function or demonstrate his views regarding the facts of the case.

Other members of the Court agreed, saying in a unanimous opinion denying the challenge that they “find no basis for Justice Hardesty’s disqualification.”

Justice Elissa Cadish, who is also a registered Democrat, voluntarily recused herself from the case on Monday, saying in a disclosure that her “impartiality might reasonably be questioned based on my personal relationships with several of the named respondents.”

Updated at 10:53 p.m. to add a statement from the Nevada Republican Party.

Nevada Supreme Court accepts the results of the 2020 general election in the Silver State

The Nevada Supreme Court accepted the results of the 2020 general election on Tuesday, making official the results of a contentious election that has sparked numerous legal challenges seeking to cast doubt on the integrity of the electoral process in the Silver State.

The seven Supreme Court justices, who met in both Las Vegas and Carson City, formally signed the canvass of votes after a brief presentation from Secretary of State Barbara Cegavske. Several of the justices lauded Cegavske, a Republican, and her staff for running a fair and transparent election despite significant challenges amid the ongoing coronavirus pandemic.

“I just want to commend the secretary of state and her office for the extraordinary work they did under very difficult circumstances,” Justice James Hardesty said during the canvass of votes. “They’re to be congratulated for carrying out his extraordinarily successful election.”

Associate Chief Justice Mark Gibbons described the election as “incredibly trying” and said the fact that it ran “as smooth as it did” was “incredible.” Justice Elissa Cadish thanked Cegavske and her office for running the election “properly, reliably and with integrity.”

Cegavske, presenting the results of the election to the Supreme Court, acknowledged the challenges the state faced in running elections in the middle of a pandemic, from conducting an all-mail primary election in June to a “hybrid” general election in November. All active registered voters in Nevada were mailed a ballot this fall and given the opportunity to either fill it out and send it back or participate in person, either early or on Election Day, as usual.

Cegavske said the state saw a record 1,407,754 ballots cast this year, meaning that 77.3 percent of all active registered voters participated in the electoral process. Of those ballots, 49.2 percent were cast by mail, 41 percent during early voting and 9.7 percent on Election Day.

“I'd like to thank all of Nevada's election officials for their dedication and commitment to providing a transparent legal and fair election,” Cegavske said.

Per state law, Gov. Steve Sisolak is now required to issue certificates of election to the winners of the election and issue proclamations declaring the election of each individual. Sisolak, in a statement Tuesday afternoon, said he will be submitting a certification of ascertainment to the federal government in the coming days certifying that Joe Biden’s presidential electors received the highest number of votes in Nevada and will be issuing certificates of election to the winning candidates in the coming weeks.

“The process for the Governor to issue the certificates of the election and commissions to the winners — as declared by the justices of the Supreme Court — will likely take a significant period of time following today’s Supreme Court canvass,” he said.

The canvass of the votes comes amid ongoing legal challenges in Nevada and other battleground states over the results of the 2020 general election, all of which have so far been unsuccessful. 

Multiple legal challenges in Nevada were on court calendars on Tuesday, including a lawsuit by President Donald Trump’s campaign seeking to overturn the results of the election in Nevada, which he lost by about 34,000 votes, or 2.39 percentage points. The next hearing is scheduled for Dec. 3.

The Trump campaign has claimed without direct evidence that identified irregularities in the electoral process will be enough to overturn Joe Biden’s victory in Nevada.

Adelsons pour $500K into group backing Republican-aligned state Supreme Court candidate, other judicial candidates

The front of the Nevada Supreme Court Building

Billionaire casino owner Sheldon Adelson and his physician wife Miriam have contributed a combined half a million dollars to a new political action committee involved in several judicial races, including a contentious fight for a state Supreme Court seat.

According to a campaign finance report filed last week, the Adelsons — who made news last week amid disclosure that they poured $75 million into a pro-President Trump Super PAC — each contributed $250,000 in mid-September to a new political action committee called “Judge the Judges.”

So far, the PAC has started a TV advertising campaign aimed at boosting the candidacy of state Supreme Court candidate Douglas Herndon, an Eighth Judicial District Court judge running against Democratic Assemblyman and attorney Ozzie Fumo for the open seat on the seven-member court. Herndon’s political affiliation is described as “Republican” by the Reno Gazette-Journal.

But a spokesman for the PAC says it has plans beyond just the involvement in the state Supreme Court race. He said it’s already created a website with basic information on judicial races in Clark County, and has endorsed and begun running radio ads on behalf of four additional judicial candidates (of both major political parties) running for seats on the Clark County District Court.

“The PAC has a growing coalition that includes Dr. Miriam and Sheldon Adelson, the Nevada Builders Alliance, the Franchised Auto Dealers and additional companies to be named soon,” spokesman Mike Draper said in an email. “While the PAC is engaged in a handful of select races this cycle, the goal is for it to be an ongoing resource in future election cycles to provide more information about our elected judges.”

According to the new PAC’s campaign finance report, the Adelsons contributed the lion’s share of the $507,000 in reported contributions, with $2,000 coming from the Nevada Builders Alliance and $5,000 coming from the state auto dealers association. It reported spending just over $21,000 through the end of September. 

Nevada caps political contribution amounts from a single individual or entity at $10,000 per election cycle, but there are no contribution limits related to political action committees. A spokesperson for the Las Vegas Sands said the Adelsons declined to comment.

The PAC’s main advertising thrust thus far has focused on the state Supreme Court race. Though judicial races in Nevada are nonpartisan, meaning candidates don’t list party affiliation on the ballot, Herndon’s campaign has been backed by numerous Republican-aligined groups and individuals, while Fumo has been endorsed by a slew of liberal and progressive groups and served two terms in the Assembly as a Democrat. 

The PAC began running a television ad last week that hits Fumo for a “lack of experience on the bench,” saying that “The Nevada Supreme Court is no place for beginners.” It also highlights a promise made by Fumo during the summer special legislative sessions to recuse himself on certain issues that might come before the court, and says he’s “distorting” Herndon’s record.

Races for seats on the Nevada Supreme Court have in the past included some partisan tinges — Justice Elissa Cadish won endorsements from multiple union groups in her 2018 race, while her opponent, Court of Appeals Justice Jerome Tao, was endorsed by Republican figures and groups, including the National Rifle Association.

Though the court rarely rules along party lines, the Las Vegas Review-Journal reported in 2018 that at least four of the court’s seven members — Justices Mark Gibbons, Abbi Silver, Kris Pickering and Ron Parraguirre — are either registered Republicans or “lean” Republican. Justices James Hardesty, Lidia Stiglich and Cadish are Democrats.

Herndon — a sitting judge on the Eighth Judicial District Court in Clark County — has outraised Fumo throughout the campaign. He reported raising more than $340,000 over the last three months and spending more than $207,000 over that time frame — compared to $110,000 raised and $137,000 spent by Fumo in that same time period.

Herdon’s campaign has also spent more on television advertising, according to a tally by Kantar Media/CMAG. Fumo’s campaign has spent an estimated $91,000 on television advertising as of Oct. 19, compared to $150,000 spent by Herdon’s campaign and $15,000 by the “Judge the Judges” PAC.

In the state’s June primary election, Herdon won about 45 percent of votes cast, coming ahead of Fumo — who won about 35.6 percent — and ahead of former Republican Assemblyman Erv Nelson, who brought in about 10.3 percent of the vote. For judicial races, a candidate who wins more than 50 percent of the vote in the primary election automatically wins the seat, but if no candidate cracks that threshold, then the top two vote-getters proceed to the general election.

The PAC is also running radio ads in support of Herndon and four other endorsed candidates for District Court seats in Clark County, including:

Nevada Supreme Court says state cannot change water rights for 'public trust,' a loss for environmentalists, county seeking to bring more water to Walker Lake

A photo of the Walker River

The Nevada Supreme Court ruled Thursday that the state cannot reshuffle existing water rights to prevent environmental damage, despite recognizing a legal principle that requires the government to preserve natural resources for future generations.

Instead, the court ruled that principle, known as the public trust doctrine, is recognized in existing law. The Nevada court, in a 4-2 decision, separated itself from the California Supreme Court, which reached the opposite conclusion in a landmark 1980s case.

Effectively, the court found that the system that underpins Nevada’s water law, known as the doctrine of prior appropriation, is meant to take the public interest into account by defining how water can be used and by placing guardrails to prevent waste or overuse in times of scarcity. Allowing reallocation, the court said, “would create uncertainties for future development.”

The decision deals with litigation on the Walker River, which rises in eastern California and flows into western Nevada, ending at Walker Lake, a terminal desert lake in Mineral County. Along the way, water is removed from the river for farming and ranching operations. As more and more water was used over the past century, the lake shrunk and its water chemistry changed. 

Walker Lake became increasingly inhospitable for fishing, boating and recreation, harming the local economy of Hawthorne, the small Mineral County town located near the lake. In 1994, the county took the issue to court. It intervened in an ongoing case to assert a “public trust” claim, asking the court to do what existing water law had not: require that a minimum flow reach the lake.

“The public trust doctrine is something that transcends statutory law,” said Simeon Herskovits, an attorney for the Walker Lake Working Group, an organization of Mineral County residents.

Although the opinion recognizes that the public trust doctrine applies “to all waters of the state, whether navigable or non-navigable,” it says the state cannot reshuffle existing water rights to meet its responsibilities. Those responsibilities are instead met through existing statute.

“We recognize the tragic decline of Walker Lake,” Justice Lidia Stiglich wrote. “But while we are sympathetic to the plight of Walker Lake and the resulting negative impacts on the wildlife, resources, and economy in Mineral County, we cannot use the public trust doctrine as a tool to uproot an entire water system, particularly where finality is firmly rooted in our statutes.”

Justices Elissa Cadish, Mark Gibbons and James Hardesty joined the majority opinion. Justice Ron Parraguirre voluntarily recused himself from the decision. 

The ruling marks a significant loss for environmentalists who view the public trust doctrine as a pathway for carving out greater protections for the environment and recreation in a legal system where water is often appropriated to private interests with little left to spare for anything else.

“This says we’ve got a public trust doctrine and it applies everywhere,” said Bret Birdsong, an environmental law professor at UNLV who filed a brief in the case. “Only it means nothing.”

The decision, Birdsong argued, relegated the public trust doctrine, what is meant to be a broad legal principle, to a set of statutory tools that have not always protected resources long-term. 

“It’s a bad decision for the environment,” he added.

In a dissent, Chief Justice Kristina Pickering criticized the majority interpretation, writing that it could mean “there is no remedy or action to be taken to protect from the irreversible depletion of this state’s most precious natural resource,” as long as the state engineer fulfills his statutory role.

Justice Abbi Silver joined Pickering in the dissent.

The issue came before the Nevada Supreme Court after the 9th Circuit Court of Appeals was weighing Mineral County’s public trust claim. In 2018, the appellate court asked the Nevada Supreme Court to define the scope of the public trust doctrine as it is applied to the state’s water rights system. The case then became about much more than Walker Lake.

Water users across the state — cities, counties and tribes — became involved, filing briefs with the Supreme Court. Industry groups for miners, ranchers and farmers similarly filed briefs. Most argued against the reallocation of existing water rights, considered a property right.

On Thursday, the court ruled that water rights cannot be reallocated unless provided by statute. 

Rod Walston, an attorney for Lyon County and Centennial Livestock, applauded the ruling and noted that it could have broader implications for other Western states, where courts are still weighing the scope of the public trust doctrine in the context of existing water allocations. 

“Until this decision today, only one [state] Supreme Court had dealt with this,” Walston said. 

In a 1983 case involving the Los Angeles Department of Water and Power’s diversion of water away from Mono Lake, the California Supreme Court affirmed that the public trust doctrine can affect existing water rights. Nevada’s recent decision marks a stark contrast to that ruling.

Pickering’s dissent, which cited the Mono Lake case, argued that the public trust doctrine was a distinct element of law that evolved separate from statute and should be considered in balance.

The statutory framework, Pickering said, does not always fully account for public trust values.

“For example, while it could theoretically be in the public interest to allocate water rights to facilitate cattle grazing, increase herd size, and ultimately reduce the price of beef for dinner, if done without regard to the deleterious impacts of unsustainable water and grazing on Nevada's natural resources, such action could also be entirely inconsistent with public trust principles,” she wrote.

She added that Mineral County’s public trust claim might not necessarily affect existing rights. The county sought “a range of relief” that could “take a number of different forms,” including irrigation efficiency, a state-led plan and changing how water is managed in wet years.

“Crediting Mineral County’s position with respect to the public trust doctrine does not require that the decree court revoke senior adjudicated Walker Basin water rights,” Pickering wrote.

In a footnote, the majority disagreed with this interpretation of the case. The footnote argued that “the underlying dispute involves demands for over-appropriated resources that require determining whether water rights may be reallocated from current rights holders.”

Herskovits said the decision could make it harder to bring a public trust claim in the future.

"The majority opinion creates a precedent that will make it extremely difficult for any individual citizens or citizens organizations to bring an action challenging whether or not the public trust duty or obligation has been fulfilled by the state," Herskovits said in a phone interview. 

“It is very significant and it has tremendous implications for the state,” he added.