Thomas Mitchell

Nevada is taking the lead in challenging a recent 9th U.S. Circuit Court of Appeals opinion that has the potential to obliterate more than a century of state water rights law.

The office of Nevada Attorney General Adam Laxalt this past week filed an amicus brief with the U.S. Supreme Court, in conjunction with nine other states, asking the court to hear the case on appeal.

The 9th Circuit ruling granted groundwater rights to the Agua Caliente Band of Cahuilla Indians, whose reservation is in California’s arid Coachella Valley, though the local water district had held those rights for years and sold water to the reservation and other communities. The court held that state water rights are preempted by federal reserved rights, implying that water under any federally controlled land could be wrested from existing water rights holders.

“As the driest state in the nation, Nevada has a paramount interest in the rules governing the management and allocation of the scarce water resources within its borders,” the 19-page amicus brief notes. “Nevada has the highest percentage in the nation of land under federal ownership or control, with a large portion of that land subject to possible claims of federal reserved water rights.”

The other states signing onto the legal action are Arizona, Arkansas, Idaho, Nebraska, North Dakota, South Dakota, Texas, Wisconsin and Wyoming.

Among other things the brief argues that under the Tenth Amendment states retain substantial sovereign powers with which Congress may not easily interfere. In fact, the Supreme Court itself has stated that if Congress attempts to preempt a traditional and essential power exercised by a state that “it must make its intention to do so ‘unmistakably clear in the language of the statute.’”

Laxalt was quoted in a press release as saying, “By filing this brief, my office encourages the Supreme Court to take the necessary steps to clarify the States’ groundwater rights and to ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference. As I have consistently demonstrated throughout my tenure as Nevada’s attorney general, my office stands ready to defend our state from unlawful federal overreach regardless of the source.”

Compounding the problem created by the 9th Circuit water usurpation is the fact that in Nevada, as in other Western states, many of the groundwater aquifers are already fully appropriated and have been for nearly 100 years. Any new claim for water under federal land would result in an overallocation, possibly requiring the relinquishing of long-held water rights used by ranches, farms, manufacturing, mining and communities — in some cases depriving families of their livelihoods.

“Current rights holders may see their investment backed decisions evaporate,” the court document relates.

Another argument is that groundwater rights could not have been assumed to be part and parcel of any federal land holding since at the time of its acquisition the technology to economically access groundwater was virtually nonexistent.

But somehow the 9th Circuit judges managed to contort a 1908 Supreme Court ruling that barred the damming of a river that flowed through a Montana Indian reservation as also bestowing groundwater rights. The judges asked whether the water was “envisioned as necessary for the reservation’s purpose at the time the reservation was created,” and answered with a totally implausible affirmative.

The Agua Caliente case has already been wielded in federal court as an argument against Nevada’s longstanding practice of allocating groundwater through the state engineer’s office.

During a hearing a couple of weeks ago on lawsuits over the Southern Nevada Water Authority’s attempt to tap groundwater in valleys in White Pine, Lincoln and Nye counties, an attorney representing various Shosone tribes cited the 9th Circuit ruling as giving the reservations priority groundwater rights despite the state engineer’s granting of water rights to SNWA.

The states’ amicus brief challenging the presumptive federal water rights argument concludes: “Courts cannot simply presume that Congress considered, let alone intended, to displace the States’ traditional authority over groundwater when (1) not only is the enabling act creating the reservation silent about water rights, but also (2) it was not even feasible, much less contemplated, that groundwater would be used.”

Much is at stake in this case, especially here in Nevada, where the federal government already controls 85 percent of the land and also would control much of the water underneath that land if this ruling is not reversed.

The lives and livelihoods of thousands of Nevadans, especially rural Nevadans, could be in jeopardy.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at thomasmnv@yahoo.com. He also blogs at http://4thst8.wordpress.com/.

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