Bill to limit judicial review of State Engineer water decisions draws fire from all quarters

An audio catalog of testimony

An abandoned fishing boat far from the water line on the east shore of Walker Lake. Lake level has dropped roughly 150 feet since agricultural diversions of water from the Walker River began in the early 20th century - photo: CC BY-NC-SA 4.0 Bob Tregilus Photography

The Assembly Committee on Natural Resources heard Assembly Bill 5 yesterday, a measure put forward on behalf of the Nevada Division of Water Resources that would “limit the circumstances in which such an aggrieved person may have a determination of the State Engineer reviewed by a court …”

Acting State Engineer Adam Sullivan and Deputy Administrator of the Nevada Division of Water Resources Micheline Fairbank presented the bill and explained that the goal of the legislation is to prevent litigation on a case, or aspect of a case, before the State Engineer issues a “final” or “formal” decision regarding the use of ground and/or surface water in the state. 

Fairbank told lawmakers that the legislation would not prevent citizens from legally challenging final decisions but would prevent legal complaints from disputing aspects of the decision-making process, which both Fairbank and Sullivan said undermine the efficiency of their office.

“We’re a public service agency, and so part of that is providing insight and instruction and advice to individuals with regards to how to move forward or respond to questions; and to have some of those different types of processes that don’t necessarily result in a finality of the decision become subject of litigation is a significant impediment on the ability of the office to do our daily work,” Fairbank explained.

Assemblyman Howard Watts is chair of the Assembly Natural Resources Committee and had several questions regarding what constitutes a “final” or “formal” decision. Assemblywoman Natha Anderson said the bill sends the wrong message.

“Got to be honest with you,” Anderson said. “I have problems with this bill. It gives the impression that the State Engineer’s decision is not open for any sort of review or a judicial item, and I have some real concerns. It gives the impression that the decisions handed down by the State Engineer need to be exempt. So I don’t know if you want to reply to that or not, but I do have some, some grave concerns about that impression being given.”

The initial draft of the bill excluded citizens not “materially” affected by the State Engineer’s decisions from taking legal actions, but the language was dropped in response to numerous requests for amendment.

No one testified in support of the bill. A diverse and unusual group of 13 people offered passionate and detailed testimony in opposition, to include the Progressive Leadership Alliance of Nevada, Eureka County, and the Nevada Farm Bureau. Adam Sullivan offered final remarks on the hearing.

“The Division recognizes the importance in the value of the ability of the public to challenge decisions of the State Engineer. This bill is not intended to have any effect on who could bring these challenges,” Sullivan said. “The division is simply asking that challenges brought forward are to final decisions, not to steps along the way of a deliberative process. If there are more appropriate ways to accomplish this end goal, then the division is open to amendment.”

Testimony

Kyle Roerink, executive director Great Basin Water Network.

“Chairman Watts and members of the committee, the Great Basin Water Network opposes AB5 despite the proposed amendment. This bill will erode an important check and balance mechanism from state law. Other agencies and divisions are subject to similar appeals processes via the State Administrative Procedures Act, so we must ask why do officials want to remove this important safety net? 

“Right now and NRS 533.450 says any person feeling aggrieved by any decision from the State Engineer has a right to appeal to a district court. This is a valuable check on the unelected officials in the division. The Great Basin Water Network knows firsthand how important it is to have the provisions of the law remain intact. 

“In 2006, during the beginning of the regulatory proceedings for the Las Vegas pipeline fight, we were concerned that the State Engineer was not properly noticing protestants as required by law. We asked the State Engineer to re-notice. The State Engineer issued an intermediate order that denied our request. We then used the law to appeal to the district court and ultimately our case wound up in front of the Nevada Supreme Court. The High Court ruled that the State Engineer was derelict in his duty and denied Nevadans their due process rights. AB5 would have likely blocked us from seeking justice for those Nevadans.

“Next, current law does not require a decision to be formal and the inclusion of the word formal would overturn the Supreme Court’s decision and Howell versus Ricci. The Nevada Supreme Court in Howell used the phrase ‘final written determination of the issue’ as opposed to AB5’s broader final order. AB5 will block access to justice. 

“Lastly, the division’s intent as it relates to the word appellate makes this bill even worse, and that is why we need to keep the checks and balances that NRS 533.450 provides. Right now we have a Supreme Court ruling and other laws. We need to not go forward with this bill. Thank you so much.”

Shenaya Marks, a member of the Ely Shoshone tribe.

“I’m a member of the Ely Shoshone tribe and I oppose AB5. I believe that AB5 will harm native communities by limiting access to the legal system and give unelected officials more power over who can appeal their decisions in the regulatory realm.

“Any effort to limit a tribal government’s access to the justice system should give committee members pause. AB5 will make it harder to access the courts. Right now, we have an inclusive statute that has served Nevada well for more than a century. There is no need to change it.

“We should also look at history to consider what harm AB5 could do in the future. The Ely Shoshone tribe spent decades fighting the Las Vegas pipeline in regulatory and judicial proceedings. An important milestone in that case is all the non final interim decision by the  State Engineer that was appealed under NRS 533.450.

“Ultimately, the Nevada Supreme Court ruled that the state engineer failed to uphold his duties as a public official by denying the due process rights of Nevadans when he issued that non final interim decision in 2006. AB5 would likely have prevented the Supreme Court from making such an important ruling that brought justice to the public. We must consider what damage this bill will do in the future. This bill will not serve the interests of tribes, it will only serve the interests of unelected officials.”

Christine Saunders, policy director for the Progressive Leadership Alliance of Nevada.



Ainslee Archibald, coordinator of the Sunrise Movement, Las Vegas hub.



Ashlee Forman a volunteer co-chair of the Sierra Club’s Legislative Committee.



Jake Tibbitts is natural resources manager for Eureka County, Nevada.



John Hadder, executive director of Great Basin Resource Watch.



Patrick Donnelly, Nevada state director Center for Biological Diversity.



Neal Desai, program director for the National Parks Conservation Association.

“Let me get right to the point. We oppose AB5, and our members do not want their voices silenced. You’re hearing from folks today and also in submitted written comments, including ours on the numerous problems that make this bill fundamentally flawed and unsalvageable, even with the proposed amendments discussed today, so I won’t, I won’t repeat any of that.

“Instead, I’d like to talk about this bill in the context of the Nevada State Legislature’s priorities in the first year since the end of the Trump era. Now, it’s well documented that the Trump Administration spent considerable time and effort the past four years undermining the public interest by devising policies that limit access to justice, science and facts that protect our water, our land, our public health. And so it’s incredible here that you the members of this esteemed Natural Resources Committee, you are being asked by the Division of Water Resources to carry on the mantle of limiting access to justice by advancing this bill.

“And this committee needs to ask itself if it’s smart politics and smart policy to continue this legacy of the Trump administration to limit your constituents and all Nevadans access to justice on matters of water, which is the same as life and culture and state treasures such as the Great Basin National Park. Now’s the time to be inclusive, and to help restore trust and engagement in government decision making. Now is the time to restore the public’s involvement in the management of our public lands and our waters. We urge you to reject this bill. Thank you.”

Will Adler speaking on behalf of the Pyramid Lake Paiute tribe.


Jeff Fontaine, Central Valley Regional Water Authority and the Humboldt River Water Authority.



Emilia Cargill, on behalf of Coyote Springs Investment.



Doug Busselman, executive vice president of the Nevada Farm Bureau.


Brian Bahouth is a career public media journalist. Support his work in the Ally.