There will be blood

Posted on | January 31, 2010 | 15 Comments


F
EW among us will become the face of a catastrophe, but Pat Mulroy will. In 1989 the general manager of the Las Vegas Valley Water District staked her career on her ability to drive a pipeline nearly 300 miles north in order to tap the Great Basin aquifer.

Only Pat, her employees and the wishful have ever denied the ultimate cost of the water needed to fill this pipe. Rather, for the last two decades, the question has been: Where will the suffering be felt?

If Pat got the rural water, disaster would befall the Nevadan basins whose groundwater she intended to tap. If she didn’t, it would strike Las Vegas, whose irrepressible growth for much of the last two decades banked on the pipeline to refresh its dwindling supply of Colorado River water.

Southern Nevada Water Authority pipeline map. Source: SNWAUntil recently, smart money was on Las Vegas getting the water and five rural valleys in central, eastern Nevada getting the disaster. Look at a map and there are the target basins, little populated places lined up like long narrow flagstones leading half way to Salt Lake City: Delamar, Dry Lake, Cave, Spring and Snake valleys.

But recently the odds have swung in sudden and stunning ways against Las Vegas. Last October, Nevada District Judge Norman C. Robison stripped Las Vegas of all the water awarded for from the first three stepping stone valleys. As his honor saw it, the State Engineer, the man who under Nevada law presides over the hearings that either approve or deny water claims, had used exaggerated yields in his decision concerning Delamar, Dry Lake and Cave Valleys.

The State Engineer then, Judge Robison found, awarded Las Vegas water that was already spoken for; in other words, he awarded the same water twice.

The autumn day that the decision was announced, Pat had just convinced her board to pay a rancher behind the suit $4 million to withdraw it.

Too much too late.

Pat is a looker, an Angie Dickinson ringer, but she appeared more than a bit gray around the gills the morning of November 19, 2009, the day that she came before her board at the Southern Nevada Water Authority to ask permission to appeal the Robison decision. It didn’t matter. It wasn’t a beauty contest. She got her way. Christmas lay ahead. They could ride this out.

It’s a safe bet that none of the board members could have begun to imagine what the New Year had in store. Pat certainly didn’t. Last Thursday, she was in Washington DC giving a keynote speech about climate change when the Nevada Supreme Court issued a ruling that appears to invalidate every single award for her pipeline on the grounds that in 1991, the very first set of protestors were denied due process.

Oh, to have been a fly on the wall when Pat got the call. Or was it a text? Did she explode? Her temper is famous. Or was it a mute reckoning?

* * *

Only parvenus call Pat Mulroy “Patricia.” At her behest, those who know her call her Pat, while her enemies prefer “Mulroy,” which they snarl as if it’s an epithet. A receptionist at her Valley View Boulevard offices prefers a crisp “Mrs. Mulroy” when the general manager passes. It may be fear but it’s more likely respect for a woman who, as much as anyone, has made the dream behind modern Las Vegas seem as if there would be water to go with it.

Richard Bunker, former Clark County Manager, former head of the Gaming Control Board, former head of the Colorado River Commission of Nevada and leading Nevadan gaming lobbyist. Photo: Colorado River Commission of Nevada

This much is in the public domain about Pat, Mulroy, Mrs Mulroy: A half-German child whose father came to Europe with World War II reconstruction, she somehow ended up in Las Vegas as a graduate student in the 1980s. One suspects a romance behind her decision to stay in town and take a job in the Clark County Manager’s office, where she was trained as a lobbyist and became the protégé of the Las Vegas fixer Richard Bunker.

Bunker soon left the County Manager’s office to join the Gaming Control Board, where his first act would be to exonerate then gaming commissioner, now US Senator, Harry Reid of charges of mob associations. He and Reid would become Pat’s political angels for the pipeline.

By 1989, Bunker was the face of the gaming lobby. No one understood better than this former Clark County Manager that Las Vegas was entering the era of the mega-casino, yet it had neither the pipes nor the H2O to keep the miracle in the desert going long term. Bunker became Henry Higgins to Pat’s Eliza Doolittle. Bunker ensured that Mulroy was appointed general manager of the Las Vegas Valley Water District.

As it happened, knocking around the water offices as Mulroy assumed control was a scheme favored by one of its groundwater guys.

Why not tap the Great Basin aquifer?

Years later, Bunker recalled of this man, “I can’t remember his name but the guy was a genius.”

The guy’s name was Terry Katzer, though not everyone credited him with genius. Katzer ended up in Las Vegas after his former boss, a Western regional head in the US Geological Survey, sidelined him out of the belief that while Katzer was a competent field geologist, he was a lousy hydrologist.

Pat only discovered Katzer’s limitations after the moment when, fresh into her general managership of the water district, in pursuit of the genius’s plan, she had spangled the map of Nevada with more than 100 groundwater claims in more than two dozen basins, a haul amounting to what was then thought to be half of the entire state’s legally available groundwater.

Katzer soon receded into consultancy status as Pat went forth on the great pipeline project with his former assistant, Kay Brothers, who became her deputy general manager. Brothers had come out of the petroleum industry, where her specialty was getting past environmental regulations. She once boasted to camera she could get any project permitted.

Kay Brothers, Deputy General Manager of the Southern Nevada Water Authority. Source: SNWAAs Pat and Brothers took over the pipeline project, they went from town to town in the path of the pipe promising worried rural communities whatever they thought might mollify them: The environment would be fine, they’d move the pumps around, did this town need a new city center, how about a modern agricultural college? There would be no dust problem. A repeat of Owens Valley would be impossible. This was ground water, not surface water! The only reason Owens Valley got out of control is Mulholland built the Los Angeles Aqueduct before modern environmental regulations. They had new acts, contracts and monitoring plans. By helping nature use its water more efficiently, there would be enough left over for Las Vegas!

As more and more time passed, rural protestors died. Their communities were paralyzed. Drawing investment is tough to do when a gambling resort has dibs on your water. But an ever diminishing band of ranchers, hoteliers and various outdoorsy types kept fighting. Pat, ever the shrewd lobbyist, took care of a nuisance law requiring hearings to be held by the State within one year of the closing of protests by going to the state legislature. In 2003 session, at the request of Pat’s army of lobbyists, it passed a revised law exempting projects for municipal, or town, water from that rule.

State Engineers of Nevada. From left to right: Tracy Taylor, Hugh Ricci, Mike Turnipseed, Pete Morros and Roland Westergard. Photo: Bill Nesbit, Nevada Division of Natural ResourcesBy the time that the State Engineer hearings needed to approve Pat’s applications for the water in the stepping stone valleys began in 2006, seventeen years had passed since the original applications. The project was on its third state engineer and Pat had contracted at least one veteran of the job to help bullet-proof her case.

She’d consolidated power at home by rounding up all the Las Vegas basin rival companies and forming the Southern Nevada Water Authority, which she and Brothers ran with iron fists. Pressure was intense. A series of bills pushed by Senator Reid spinning federal land to developers had caused growth to explode in the Las Vegas basin before she’d technically got the rural water. Mead kept looking emptier with every year that passed. But a nifty clause dictated that Pat’s new empire got a nice chunk of the revenue from federal land sales. Hook up fees from the new homes further flushed her coffers.

By 2006, she’d seen Las Vegas through a sudden drought on the Colorado River by a dazzling outdoor conservation program. She’d lobbied Congress for right of way to run her pipe across hundreds of miles of federally owned land. Thanks to friends in high places, a formerly obstreperous Interior department was now so behind Pat and her pipe that its secretary assigned a civil servant to Las Vegas purely to expedite the project.

US Senator Harry Reid, former Lt. Governor of Nevada, former Gaming Commissioner for Nevada, former Congressman and now Senator for Nevada and Senate Majority Leader. Source: reid.senate.gov/To her opponents, it seemed hopeless. Pat ran the board. Reid had her back in Washington DC. She hired every Nevada water lawyer who might get in her way, kept a small army of lobbyists stationed in Carson City to calm any nervous legislators there. When her own hydrologists came back with models showing that her pumps would create catastrophic damage in the stepping stone valleys, she and Brothers saw to it that the studies didn’t make it before the State Engineer. As insurance, they hired new experts to trash their old experts.

As hearings began in 2006 on the applications for Spring Valley, the wettest of the stepping stone basins, Pat convinced her board to buy out its ranchers. After spending almost $79 million doing this, the urban water authority was then required to enter the cattle business so it could hold onto the ag water rights until they were reassigned.

It looked smart at the time. Las Vegas had money, the ranches had water.

Pat so dominated Nevada as the Spring Valley hearing began in 2006, her opponents had been forced to shop out of state for a lawyer to represent them. They settled eventually on a fussy little gnome of an environmental lawyer named Simeon Herskovits, who worked out of an artsy shop front in Taos, New Mexico, where, when this writer visited, his receptionist appeared to be a dog.

The protestors lost in Spring Valley, then in Delamar, Dry Lake and Cave. As they staggered defeated out of 2008 into 2009, it seemed that the main thing keeping them from losing in Snake Valley was that Utah, which borders it, had been cutting up rough over a water-sharing agreement.

* * *

"Patty in Vegas" by Snake Valley rancher Cecil GarlandHalf way through the stepping stone hearings, Herskovits finally took the Nevada bar exam. It would have been funny if it weren’t so sad. But those who wrote him off wrote him back on last Thursday.

The man who sat the Nevada bar in order to stick with the survivors of a 20 year struggle with Las Vegas saw details that everyone else, including Pat, missed.

In 2007, the first attempt by Herskovits to challenge the 2003 legislation denying the pipeline’s opponents a timely hearing after the close of protests was denied. So he appealed it straight up to the Nevada Supreme Court, which heard the case last June.

And so last Thursday, what looks like the mother of all oversights became apparent in the Nevada Supreme Court’s decision against the State Engineer. All of Pat’s lobbyists, including Pat herself, got the wording wrong on the 2003 amendment. It did not apply to the 1989 protestors represented by Herskovits, who happened to be challenging all of the awards in her stepping stone valleys.

Shortly after the ruling, according to one of Pat’s spokesmen, the Southern Nevada Water Authority “proactively re-filed the applications with the State Engineer and is prepared to go through whatever further process is required.” It’s unclear what that will be. The decision has been referred to a district court to figure out where to go from here. Pat’s lawyers are already arguing that voiding her awards would imperil thousands of other rulings. Expect more of that.

No one person, either in the State Engineer’s office, or in the Southern Nevada Water Authority, or in the Nevada water bar, appears to have digested the scale  of the disaster. After paying roughly $10m to secure the water rights, then nearly $80m for the ranches, and estimating $5m a year in studies, lobbying and lawyers over 20 years, the project so far may have cost the Southern Nevada Water Authority as much as $180m. And it is back to what looks like square one. The Southern Nevada Water Authority Board meets on the third Thursday of every month. The next meeting is February 18th.

The normal Sunday feature, “The week that was,” has been preempted by this article and will return next week. To read the photo captions, place your cursor over the image. An abridged version of this article is scheduled to appear in today’s Las Vegas Sun. For a detailed history of the pipeline project, go to the Sun series “Quenching Las Vegas’s Thirst.”

This post has been updated. Photos of Kay Brothers and Sen Reid have been added. At the request of a Las Vegas Sun reader, the legislative footprints of Pat Mulroy and the conclusion of the court as to where the missteps occurred have been added below.

In 2003, in Senate Bill 336, at the behest of SNWA lobbyists, the following wording was added to amend existing law ensuring protestors a hearing on claims within one year of the close of protest periods. From section 2, the amendment read.

2.  Except as otherwise provided in this subsection and subsection [6,] 7, the State Engineer shall approve or reject each application within 1 year after the final date for filing a protest. [However: (a) Action may be postponed by the] The State Engineer may: (a) Postpone action upon written authorization to do so by the applicant or, if an application is protested, by the protestant and the applicant . [; and] (b) Postpone action if the purpose for which the application was made is municipal use. (c) In areas where studies of water supplies have been determined to be necessary by the State Engineer pursuant to NRS 533.368 or where court actions are pending, [the State Engineer may] withhold action until it is determined there is unappropriated water or the court action becomes final.

3. If the State Engineer does not act upon an application within 1 year after the final date for filing a protest, the application remains active until acted upon by the State Engineer.

But on page 13 of Great Basin Water Network vs State Engineer the Nevada Supreme Court last week ruled that:

“After examining the legislative history, it is clear that SNWA requested the 2003 municipal-use amendment, but, unfortunately, the legislative history provides no guidance regarding retroactive effect of the amendment to pending applications… Although the retroactive effect … evidences the Legislature’s intent that the statute apply to applications for municipal use that were filed prior to the enactment of the amendment, we conclude that appellants’ interpretation of the word “pending” is the more reasonable. First, by setting a timeline for the approval or rejection of groundwater appropriations within one year we determine that the Legislature intended to prevent a significant lapse of time before a ruling. There is no language in the statute or legislative history that indicates an intention by the Legislature that the amendment for municipal use apply retroactively to the applications made more than one year prior to the amendment’s enactment…”

To see the list of lobbyists in Carson City that year working for SNWA, led by Patricia Mulroy, go to: http://leg.state.nv.us/72nd/LobbyistDB/ .

Comments

15 Responses to “There will be blood”

  1. Allan Peach
    January 31st, 2010 @ 6:31 am

    Terrific article.

  2. Eric Perramond
    January 31st, 2010 @ 9:36 am

    Great summary, Emily. An underground Owens Valley scenario temporarily (?) averted — and another reminder of how problematic the urbanization of water really is. -epp

  3. Ron Parry
    January 31st, 2010 @ 11:24 am

    Great article, but I fear the battle is not yet won. Maybe if Harry Reid goes……….

  4. Rob Mrowka
    January 31st, 2010 @ 9:07 pm

    Thanks for telling it like it was and is. SNWA and the growth industry it feeds were out to defy the principles of sustainability at cost to the environment and communities in eastern and southern NV and the west desert of Utah. In this David v. Goliath tale, Simeon Herskovits and the Great Basin Water Network have been able to expose their nefarious dealings and hold them accountable to the NV Supreme Court and the citizens of Nevada and Utah.

  5. PAUL F MILLER
    February 1st, 2010 @ 8:09 pm

    What I learned during my teenage years growing up in Las Vegas was how the mere mention of Las Vegas seemed to bring out hyperbole to the max especially as it relates to Southern Nevada “Mob” connection.

    I don’t believe that any politician from sheriff to senator was immune to some writer linking them to the “mob” and so it is not surprising that Pat Mulroy/SNWA enjoys that same link albeit by association as most of them reputedly are.

    Whether Mulroy/SNWA proves to be hero or goat, I feel that chapter is yet to be written, though certainly the recent Nevada Supreme Court ruling was a bit of a stunner for her and Las Vegas, but like I wrote previously, it was really not that unexpected if one but took a bit of different look at Nevada history.

    Call me foolish, but, were I a betting man, I still would not as yet bet against LV getting that 300 mile pipeline albeit at a substantially great cost as how there will be higher “booty” to pay for the taking.

    This episode in Nevada water will make for many interesting discussions, college courses, books and who knows even a TV show.

    Respectfully,

  6. EmilyGreen
    February 1st, 2010 @ 8:49 pm

    Paul, You are of course right that any mention of Las Vegas carries mob associations. Given its history, this is not surprising. But if you are suggesting that is what is happening here, that the mob is being tossed in as spice and slander by association, then it’s not. The history of Reid and Bunker in the Nevada Gaming Commission and Gaming Control board, Bunker’s first job of clearing Reid of mob associations, and their further actions in the Sinatra hearings etc is no matter of association. It’s fact, documented any number of places, including Reid’s autobiography. The gaming interests that Pat Mulroy, Richard Bunker and Harry Reid have represented from 1989 onwards were cross-over into a post Mob era. Does that make what they did legal? Clearly not, according not to me, but to now two separate courts. The links to the decisions are clear in the relevant posts. Pat may get her pipe, but what is emerging is that it has not been a legal or fair process. That has nothing to do with the mob. Thanks for commenting. -EG

  7. George Knapp
    February 2nd, 2010 @ 1:32 am

    This article is yet another eloquent and devastating critique of the central players in the ongoing water war, Emily. As you know better than anyone, the learning curve when it comes to water issues is perilous and steep, which is why most of the articles Nevadans are allowed to read about the subject are either ridiculously superficial or are the equivalent of re-written press handouts from SNWA’s army of in-house “public information specialists” or silky-smooth pablum generated by highly-paid, hired gun P.R. firms that assist Ms. Mulroy in spreading her message.
    Already, the Supreme Court’s monumental decision is being characterized by SNWA minions as a minor speedbump, a temporary procedural oopsie that will be rectified in a moment or two. It is clearly more than that.
    SNWA and its legion of lawyers have repeatedly slammed Judge Robison as some sort of biased rube who bent the law in support of his rural brethren. Every mention of his name in the pro-pipeline local paper includes a description of him as a “rural judge”, implying that his scathing characterization of the water grab was based, not on the law, but on his presumed fondness for barn dances, sheep turds, and Elly May Clampett. Now that the Supremes have taken things even further by pounding a wooden stake into the heart of the pipeline, I’m anxious to read the next salvo of spin. Tut, tut, it’s like a bug hitting the windshield, right?
    The high court could have ducked this ruling, in any number of ways. My take on it is that the justices made a distinct gesture, as if all seven of them extended their middle fingers in unison before remanding the entire matter into the hands of the same district judge who has been the target of scorn and derision from the haughty SNWA.
    At long last, things are getting interesting.

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    February 2nd, 2010 @ 1:31 pm

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    February 2nd, 2010 @ 1:55 pm

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  10. Patty Henetz
    February 3rd, 2010 @ 4:35 pm

    Emily, thanks for this fine story, especially the background on Herskovits.

    As I’ve been covering the Snake Valley saga, I’ve run into a wall at every turn as to why Utah caved to Allen Biaggi after he sent his nasty multi-page email to Mike Styler all but challenging him to a duel. Prior emails from Utah raised the same commonsense questions and objections the anti-pipeline folks had. But suddenly an agreement ceding unallocated Snake Valley water had to be signed, even though the water split was 7-1 in favor of Vegas, because that was the best Utah could expect.

    What the hell happened?

    Was Harry Reid really threatening to repeal the federal law requiring the two states to agree on Snake Valley? Styler has adamantly denied a quid pro quo on the Lake Powell pipeline even as Mulroy said there certainly was one. And many observers believe a SCOTUS special master would find for Utah.

    Another thought: Mulroy has said she was under orders from Interior to develop Nevada water before asking for more from the Colorado. Could this ruling help set up an amendment to the Law of the River to allow the Upper Basin to sell water to the Lower Basin?

    Again, great work.

  11. EmilyGreen
    February 3rd, 2010 @ 5:46 pm

    Hi Patty, Thanks for a thought-provoking and informed comment. My own take on the situation is that as the UT-NV negotiations dragged on and Nevada got more impatient, there was always a danger that a clause could be slipped into a bill reversing the 2004 Congressional requirement that Utah sign off on water exports from any shared basin.

    As far as I’m aware, Mike Styler has always firmly believed a deal was better than no deal. He has always denied that there was any element of quid pro quo — NV saying “Give us Snake Valley water and or forget the St George pipeline.” So has Sen Reid’s office. I respect both men, but I find the denials implausible. Utah clearly needs the Senate Majority leader’s help, or at best, indifference, if it is to advance its legislative agenda. Why if not seeking Nevadan support for the St George pipeline would the Washington County Water Conservancy District want Utah to settle almost as much as Las Vegas does?

    My personal favorite common denominator here is a Washington water lobbyist named Marcus G. Faust. If you look at his client list, what looks like a lot of pipe runs through it. http://www.implu.com/lobby_firm/287 — there is the City of St. George, Las Vegas, Colorado River Commission of Nevada, Las Vegas Valley Water District, SNWA, Central Utah Water Conservancy District and Coyote Springs. Mr. Faust steadfastly maintains that he would not dream of representing clients with conflicts of interest and that rivals are separated by some kind of cordon sanitaire. Who knows?

    However, we have one of his best clients, Patricia Mulroy, to thank for spelling out the quid pro quo nature of the stand-off, which she did in a fit of pique to your editorial board. She maddens easily and her pipe has catastrophe attached to it, but she’s not entirely not wrong in saying that Utah is moving to develop a lot of water between the border of the two states and the procrastination may not simply be in the interests of good air and Snake Valley.

    That takes us back to Mike Styler’s shuffle board of water right applications.

    No, Interior didn’t send Mulroy inland. Interior manages the river and otherwise keeps its wick dry. It was the other six states on the river, including Utah, that told Nevada to forget the river and develop its “instate resources” before coming to them. Styler often says this in presentations. I feel for Mulroy here. The flippancy is mind boggling, given it was said to the driest state in the country. Styler, who I believe was a Millard County commissioner at the time (check this) swiftly protested the 1989 Vegas filings. She might as well have been told to take a long hot lap around the desert for nought. I wonder how many believed that she’d actually move on the groundwater?

    If the pipeline is not built, it’s pretty clear that Congress will need to look for some kind of remedy for Las Vegas on the Colorado and no one could say that Pat Mulroy hasn’t fought for alternate sources. Sen Reid realizes this, and I can only hope he enjoys the power he’ll need if it comes to that. Much to his staff’s annoyance, I spent a lot of time following him around, and I think he’s probably just damn wrong in his always hedged support for the Vegas pipe. He’s dangerously loyal to his old group of Nevadans and my guess is that Richard Bunker and latterly Pat led him out on a limb.

    The ultimate irony might be that the failure of the pipe might save the river. I wonder if any of the players begin to appreciate what impact reducing the pressure of the Great Basin Aquifer might have on Colorado River flows, particularly in the lower basin? As far as I know, this was never addressed in any of the studies. Hydrologists have been slow to connect the relationship of groundwater and surface water. Were anyone to study it, they might find that leaving the water where it is will be important to the health of the river, and not just the surrounding desert, and that it may be well worth giving Pat some surface water to leave that groundwater alone!

    Does this help? Keep up the great reporting.

    All best, Emily

  12. mesa
    February 4th, 2010 @ 7:50 pm

    I just recently have discovered several of your great posts.

    From my travels in Nevada, and review of Nevada BLM and now Forest Service Veg Killing project proposals – it sure looks like sagebrush and pinyon-juniper are being removed to eliminate their water “waste”. Of course, that is not the reason given on the official Ely area agency EAs.

    I had read your 2008 article about SNWA targeting phreatophytes on the valley floors by pumping fast and hard at first.

    Are the alluvial fans and ranges cleared on the public dime?

  13. amelia garcia
    February 6th, 2010 @ 9:53 am

    Hi,
    I am glad this issue is being investigated. We live north of Santa Fe, and we are seeing the forest land, to include(PINON)
    correct spelling, being cut . The big developers are buying land
    at a swift pace, and building track homes, since they are well funded by investors, that have the southwest as an easy target.
    Keep me informed
    Amelia Garcia

  14. William Mee
    February 6th, 2010 @ 11:17 am

    Hi,

    I agree with Amelia who is a fellow member of an organization called United Communities of Santa Fe County:
    http://unitedcommunitiessantafecounty.ning.com/

    We are a congress of community organizations and citizens that have banded together to address many land use and water issues.

    The City of Santa Fe is an area of 7,000 feet in elevation that meets 12,000 foot mountains; so it is a high chihuahuan desert (10-14 inches of precipitation a year) that meets an alpine mountain (over 30 inches a year). So there is a small watershed generating 7-13,000 acre feet a year where a city of 70,000 has a need of 9-14,000 acre feet of use a year.

    So we are always on the marginal edge of water use. As were the ancient people’s who left the area in the drought of 1250 A.D.

    Currently, the proposals for importing water are intended to make us more self-sufficient but really threaten our true sustainability. It allows us to live beyond our means like Las Vegas.

    So these are the challenges…….

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