Posted on | January 31, 2010 | 15 Comments
FEW 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.
Until 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.
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.
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.
As 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.
By 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.
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.
* * *
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/ .