A big bucket water activists deployed in front of the Legislature in 2019. (Photo: Great Basin Water Network twitter).
Rural county officials, development investors, conservationists and Nevada tribes turned out in opposition Monday to state legislation critics say would make it harder for Nevadans’ to access the courts and protect their water rights.
The hearing in the Assembly Committee on Natural Resources Monday was the first chance the public had to testify before lawmakers about Assembly Bill 5.
The bill, recommended by the Division of Water Resources, seeks to limit when a decision made by Nevada’s state engineer, the state’s top water official, can be challenged in court. Judicial review would be limited to formal orders, rulings, or decisions that are a “final determination.” The bill would also limit the introduction of new evidence and testimony during appeals to the Division of Water Resources.
Officials from the Division of Water Resources said the proposed bill is needed to cut back on frivolous claims and unnecessary litigation.
“Over the past 10 years, the division has seen an increase in litigation over nonfinal decisions, advisory or general opinions, that have not resulted in a final decision,” said acting State Engineer Adam Sullivan.
“We are starting to see courts erode and make findings (on issues) that may not necessarily be a final determination,” said Micheline Fairbank, deputy administrator for the Nevada Division of Water Resources. “What happens is that we become mired in litigation in the process of getting to a final decision without actually getting to that final decision or that final determination.”
Fairbank said the bill is rooted in supreme court precedent that restricts judicial review on water rights to “a final written determination on the issue” and is meant to codify prior supreme court rulings that lower courts have not honored.
“These provisions are not intended to hinder appropriate challenges to determinations by the division,” Sullivan said. “The division recognizes that appropriately exercised judicial review is an essential check and balance to the decisions made by the executive branch of government. However, it is important to limit those challenges to final determinations that have a real and substantive, not hypothetical, impact on the interests of the challenging party.”
Since at least 1915, Nevada water law has included language that allows aggrieved parties to appeal any decision made by the state engineer in court, but opponents said the bill would limit access to the justice system and place the work of the courts in the hands of the state engineer.
“Time and again, we have seen that our courts have different interpretations of the law than our unelected water officials in the Division of Water Resources,” wrote Richard Howe, chairman of the White Pine County Board of Commissioners, in opposition. “AB5 is nothing more than an impediment to keep citizens from asking the courts to review their grievances with the state.”
Jake Tibbitts, natural resources manager for Eureka County, argued that the language in the bill goes beyond what was determined in the supreme court decision cited by Division of Water Resources officials.
“If it’s truly meant to find alignment with the supreme court case this bill does not do that,” Tibbitts said.
Eureka County argued that interim orders and temporary permits could be interpreted as not being “final determinations” although those decisions can greatly affect the counties, adding that counties must be able to appeal and participate in all legal proceedings for waters on federal lands.
“Even without AB5 parties already have a heavy lift to challenge decisions of the state engineer. The state engineer is always considered correct … the burden of proof falls on the party attacking,” Tibbitts said.
The Central Nevada Regional Water Authority and the Humboldt River Basin Water Authority spoke in opposition as well.
Kyle Roerink, executive director of the Great Basin Water Network, argues that other agencies and divisions are subject to similar appeals.
In the past, the network has used the court to challenge intermediate orders by the state engineer. In 2010, the Nevada Supreme Court ruled in the group’s favor after they filed a petition that challenged an intermediate order by the state engineer resulting in the extension of the protest period for water right applications in Snake Valley related to the much opposed Las Vegas pipeline.
Roerink argued that without the inclusive language in state law Nevadans would have been excluded from participating before a final decision was made.
“GBWN’s own example highlights the fact that we have a statute that works well for the public. AB5, in contrast, risks blockading the halls of justice to current and future generations of Nevadans and as such is unacceptable,” Roerink said.
Representatives for the Pyramid Lake Pauite Tribe, Ely Shoshone Tribe, and the Confederated Tribes of the Goshute Reservation opposed the bill as well.
“AB5 could also restrict our Tribes’ ability to protect our own Federal reserved water rights and our indigenous ceremonial areas,” wrote Rupert Steele, chairman of the Confederated Tribes of the Goshute Reservation, in opposition.
No action was taken on the bill Monday but lawmakers expressed some doubt of the bill’s intent.
“I’ve got to be honest with you I’ve got problems with this bill. It gives the impression that the state engineer’s decision is not open for any sort of review. I have some real concerns,” said Assemblywoman Natha Anderson during the hearing. “It gives the impression that decisions handed down by the state engineer need to be exempt.”
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