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Federal Appellate Court Sends Question of Whether Public Trust Doctrine Could Be Used to Reallocate Water Rights to the Nevada Supreme Court

The United States Court of Appeal for the Ninth Circuit issued an opinion in Mono County, et al. v. Walker Lake Irrigation District, et al. (“Mono County”) related to the question, “Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent?” In the case court was not being asked to address the issue of the water rights. Instead, the panel considered whether the Nevada Supreme Court should consider the question, a process known as certification, and decided to certify the question to the state supreme court.

The Nevada Supreme Court has recognized the public trust doctrine under Nevada law. There is dispute, however, over its scope—and, specifically, whether it allows for the reallocation of water rights.

The case follows a history of litigation over the Walker River Decree and stems from the receding lake levels and high total dissolved solids in Walker Lake, which the court noted are partially due to upstream adjudications. The local economy is suffering due to lost revenues from a drop in recreational and aesthetic activities at the lake. “Although the parties dispute the cause of Walker Lake’s troubles, it seems clear that upstream appropriations play at least some part, together with declining precipitation levels and natural lake recession over time,” said the court.

The appellate court turned to Mineral County’s intervention in the Walker River litigation case for background. Mineral County asked the court to “…reopen and modify the final Decree to recognize the rights of Mineral County…and the public to have minimum levels [of water] to maintain the viability of Walker Lake.” The county specifically wanted recognition “that a minimum of 127,000 acre/feet [of water] per year to Walker Lake is … required under the doctrine of maintenance of the public trust.”

The district court dismissed Mineral County’s intervention for lack of standing, concluding that the county’s claim of standing was based solely on the interests of its citizens and not on its own interests. The district court also concluded that public trust could factor into future allocations, but that using it to reallocate water rights that have already been adjudicated would be a taking and would require just compensation.

An appeal of the district court decision is currently before the appellate court, which has concluded that the district court erred on the question of standing. The appellate court believes that the question of whether the public trust doctrine applies to previously adjudicated water rights “…is an important question of Nevada water law…[that] should be decided by the Nevada Supreme Court.” The Mineral County claim is being held in abeyance pending the outcome of certification under Mono County.


Written by Marta L. Weismann