Posted on | January 28, 2010 | 7 Comments
In a stunning reversal for Las Vegas water manager Patricia Mulroy, ground-water awards that were to fill an almost 300-mile-long pipeline planned by the Southern Nevada Water Authority to run from central eastern Nevada to Las Vegas were invalidated today. In an unanimous decision, the Nevada Supreme Court decided that the State Engineer violated the due process rights of hundreds, if not thousands, of people in target valleys across the Great Basin who had long protested the pipeline and water withdrawals.
February 2, 2010 update: see appended correction.
After accepting to hear Great Basin Water Network vs State Engineer, the Nevada Supreme Court last spring issued this summary: “In 1989, the predecessor to the Southern Nevada Water Authority filed applications for unappropriated water rights from rural Nevada for use in Las Vegas. More than 800 interested persons filed protests. In 2005, the State Engineer notified roughly 300 of the interested persons that a prehearing conference would be held to discuss the water rights applications. Some organizations and individuals petitioned the State Engineer to re-notice the 1989 applications and reopen the period for filing protests. After the State Engineer denied the request, appellants filed a petition for judicial review in the White Pine County District Court. That petition was denied and appellants are now appealing that decision. [At issue:] Did the State Engineer deprive appellants of the right to due process and/or equal protection by refusing to re-notice the groundwater applications? Did the State Engineer violate his statutory duties by not ruling on the 1989 application within one year?”
In fact, as the legal protest period to the original 1989 applications neared closing in August 1990, the number of protests had surpassed 3,000. Most of these protestants were gone, broke or dead by the time the State Engineer began holding basin-by-basin hearings that would award water claimed under the applications more than a decade later.
In its decision issued earlier today in Great Basin Water Network vs the State Engineer, the Supreme Court of Nevada concluded that due process rights of the protestors had indeed been violated and that “the State Engineer violated his statutory duty by failing to take action within one year after the final protest date. Thus, we … remand for a determination of whether SNWA must file new groundwater appropriation applications or whether the State Engineer must re-notice SNWA’s 1989 applications and reopen the period during which appellants may file protests.”
In a written statement issued by the Great Basin Water Network, the attorney who brought the case, Simeon Herskovits, said, “The Court’s ruling clearly and forcefully affirms that powerful agencies like SNWA are not above the law that binds the rest of the citizenry, and that the State Engineer cannot arbitrarily give such agencies a pass on the law’s requirements.”
Also responding with a prepared statement, the Southern Nevada Water Authority called today’s ruling disappointing and added that it is “considering whether to file a Motion to Reconsider, because we believe the justices may not fully appreciate the far-reaching ramifications of their decision on people throughout the state.”
The Authority also questioned the fairness of singling out Las Vegas for a time lag when it contends that hearings for other applications are routinely not heard within a year of closing the protest period.
“While the decision was directed at the Nevada State Engineer’s ruling on our water right applications,” read the water authority’s statement, “the reality is that based upon an initial review of the state’s database, more than 1,800 applications are jeopardized by this ruling … it is not uncommon for it to take longer than 12 months to act upon a water right application.”
In light of today’s ruling, an agreement pending with Utah about how much water Nevada might be allowed to draw for the Las Vegas pipeline from Snake Valley, a basin shared by the two states, has also stalled, according to reports in the Utah paper the Millard County Chronicle Progress. “This ruling significantly changes the landscape upon which our ongoing discussions have been based,” Utah Governor Gary Herbert told the Chronicle Progress. “It allows us to revisit the proposed agreement with the State of Nevada and ensure that our continued desire to protect Utah’s water interests and the environment is met.”
Patricia Mulroy, who began her leadership of the Las Vegas Valley Water District in 1989 by stunning Nevada with sweeping groundwater applications in dozens of basins across the state, and who later led the formation of the Southern Nevada Water Authority, is in Washington DC today at a climate change conference, where she was expected to recommend exports of Mississippi River water to Southern Nevada as part of a large federal works project.
This post was continuously updated as the news broke on January 28.
Correction (appended February 2, 2010): The statements in this report that the Supreme Court voided the pipeline awards were premature and therefore incorrect. The remedy for the due process violation ruled on by the Supreme Court is unclear and has been referred back to the White Pine County District Court. The day of the decision, presuming that the awards had been voided, the Southern Nevada Water Authority re-filed for the rights. Click here and here for follow-up articles.