Posted on | February 4, 2010 | 5 Comments
The Southern Nevada Water Authority is spinning so hard, it may need its own axis. This morning’s Las Vegas Review-Journal captures the angle and motion as the water agency led by Patricia Mulroy moves to defend the lawfulness of a massive haul of groundwater awards put into question last week by the Nevada Supreme Court decision Great Basin Water Network vs State Engineer.
Its defense, hinted at in a January 28 press release from the authority, is to insist that the Supreme Court was wrong to challenge awards that were to flush a nearly 300-mile-long Las Vegas pipeline because violating due process rights of protestors is a common practice of the State Engineer.
Under Nevada water law, the State Engineer adjudicates the hearings required to turn the applications into actual water awards. After applications are filed and a legal protest period closes, protestors and applicants are guaranteed a hearing before the State Engineer within one year.
To test the position of the Southern Nevada Water Authority that the time limit has been violated too many times to count, the Review-Journal went to acting Nevada State Engineer Jason King*, whose office it reported has been inundated the last week by the Las Vegas agency reflexively re-filing the more than 100 challenged 1989 applications involved in its pipeline project.
King appeared sympathetic to the Southern Nevada Water Authority’s position. “There would just be so much litigation, it would be gridlock,” he told the Review-Journal.
The prospect of chaos may be real, but that begs the question: Why single out the Southern Nevada Water Authority?
The answer to that is that it was clear at the time of filing that the Las Vegas applications could not be legally realized. Moreover, it was clear from the outset that their success depended upon stripping the protestors of their rights.
When Las Vegas made its applications in 1989, there were more than 100 claims covering thirty valleys and involving what was estimated as half of the legally available groundwater in Nevada. It was not only the largest mass filing on record, the protest was also unprecedented. An August 1990 interview with then State Engineer Mike Turnipseed in the Las Vegas Business Press reported, “Nearly, 3,000 formal protests filed thus far with Turnipseed’s office by government wildlife agencies, rural county and city officials and hundreds of ranchers, conservationists and businesses have made it the most contested water request in Nevada history.”
By the time the Supreme Court of Nevada began reviewing the due process violation two decades later, it referred to the claims having elicited “more than 800” protests. It’s not clear so many years later how the winnowing from Turnipseed’s accounting of thousands turned into hundreds, just that the greatest winnower of all was time. When Las Vegas finally took its applications for the juiciest basin targeted by its applications, Spring Valley, before the State Engineer for a hearing, it was 2006. By law, the hearing should have taken place in 1991. During the interval, the prospects of the protestors were frozen. Land without water in Nevada is land without a future.
In a sordid footnote, in 2005, the Southern Nevada Water Authority put former State Engineer Mike Turnipseed, by then in private practice, on its payroll to help make its case before his successor.
There can be no doubt that in allowing so much time to pass, the strategy was to out-wait the protestors. Given that, it’s hard to overstate the enormity of the bungle that it took Southern Nevada Water Authority lobbyists, led by Patricia Mulroy, fourteen years from the date of Mulroy’s massive 1989 filing to go to the Nevada legislature in 2003 in a bid to exempt their applications from due process laws.
There may be other cases, thousands even, in which the right of protestors to a timely hearing was ignored by the State Engineer. What sets the case of the Southern Nevada Water Authority apart is that it banked on the violation from the outset. The sheer magnitude of the claims made them impossible to process in a timely fashion.
Moreover, without pitching the residents of their target valleys into limbo for 20 years, the water authority could never have hoped to prevail in the “most contested water request in Nevada history.”
*State engineer Tracy Taylor has been on medical leave.
Hat tip to George Knapp, who in today’s Las Vegas CityLife notes a none-too-subtle pincer movement by the Southern Nevada Water Authority and receptive media outlets to assiduously describe the judge who will decide the fate of the awards put into question by the Supreme Court ruling as “rural,” the implication being that he is therefore biased against Las Vegas.