Nevada tries new approach for water law cases
Meet the water judges.
Hello, and welcome to Western Water Notes.
All my newsletter posts are free. But if you find this newsletter valuable and want to support my journalism, please consider one of the subscription options below. You can also support this newsletter by sharing it with colleagues and friends or posting about it on social media.
As always, please reach out with any story ideas, suggestions and feedback!
-Daniel
Nevada state courts have long grappled with settling water conflicts and defining the terms upon which water is managed in the nation’s driest state. Who gets priority to water when there is a conflict or in times of scarcity? What is the public’s interest in water? What is the state’s responsibility in protecting water for the public alongside those with water rights? These are all questions the court has had to grapple with.
These questions — and many more like it — are becoming more numerous and more challenging. Many rivers and groundwater basins are over-appropriated, where there are more rights to use water than there is water to go around. As state regulators face new applications to use water, it must prevent overuse. At the same time, a changing climate and prolonged drought has increased water stress in parts of the Great Basin.
In 2022, when I interviewed Nevada Supreme Court Justice James Hardesty — then the chief justice — he told me that he had cataloged the court’s water law decisions following the adoption of state water law in the early 1900s. And “without question,” Hardesty said, “the highest number of Supreme Court decisions on this topic have existed within the last decade as compared to all the decades preceding 2010…”
The year before, Hardesty had created a commission of attorneys, judges and legal professionals to evaluate potential reforms in how water cases traveled through the state’s legal system. Like many other Western states, appeals to administrative water rights decisions go to state district court judges. But these cases can be very complex, with records that span thousands of pages, relying on multiple scientific disciplines.
Water is technical. It is also vital, and legal decisions can have major consequences. The court wanted to find ways to increase the expertise of the judiciary in water law.
The commission evaluated — and debated — a number of ideas, including whether to recommend the creation of specialty water courts in Nevada. It looked at what other Western states have done. Colorado notably has long relied on water courts, while other states like Idaho and Montana have water courts for limited purposes or as an alternative to going to the district court. Still other Western states have required the education of judges who hear water cases. And Nevada is moving in that direction.
“After completing its review, the commission determined that Nevada would be best served by appointment of district court judges in each jurisdiction who have been specially educated and trained to preside over water law cases,” Supreme Court Justice Ron Parraguirre, the chair of the commission, said in a recent article for the state bar.
In January, the Supreme Court’s water commission began a three-year pilot program that requires district court judges, certified as speciality water law judges, to hear water cases. To be certified, district judges were required to submit an application to the court and attend a two-day training following a curriculum that was approved by the commission and includes topics that range from hydrogeology to water rights.
So far, 11 judges have been certified, with another four pending certification.
In short, the changes mean that water law cases will now be transferred to speciality water judges within each judicial district. If the subject matter of a case relates to water law, it can also be transferred to a water judge. Each judicial district is required to submit annual reports to the Supreme Court on the disposition of water law cases.
“The whole concept of having our judges specially trained and understanding these basic terms and this body of law that Nevada has — specific to Nevada — I think is going to make a tremendous difference in how these cases are managed,” Parraguirre said in an interview (below) with the court’s judicial education director last year.
The timing here is important. Not only are the courts seeing more litigation due to conflicts over access to water when there is not enough to around, but the courts are expecting to see more activity around claims to “vested” water rights, those that pre-date Nevada water law. The deadline for filing claims to these rights is December 2027. The certification of “vested” claims are equally complex, drawing heavily from historical records. District courts play a direct role in entering a finding to determine and finalize these “vested” claims through a legal process known as an “adjudication.”
Parraguirre said in the interview that the commission will continuously monitor the progress of the pilot program and re-evaluate in three years. With more water cases likely heading to the district courts and ultimately up to the Supreme Court, he said “we want to be ready. We want to be able to expedite these cases. This is a start.”
If you want to read the full rules for water law judges, they are posted here.
And the Nevada Supreme Court library has posted past water law rulings. This is a huge help for people like me, because some of these rulings can be hard to find!
Some other threads:
“More than $100 million has been spent to retire wells and meet Rio Grande compact demands. But it’s not enough, as San Luis Valley farmers may now be asked to pay a lot more to continue pumping.” More from Jerd Smith in The Colorado Sun.
Conservationists want he 9th Circuit will weigh whether federal water managers adequately considered climate change in Glen Canyon plans, via Courthouse News.
“The unloved L.A. River just prevented a flood disaster. Can more of its water be saved?” Excellent article revisiting the history and the role of the the concrete-lined Los Angeles river after stormwater surged through, by the L.A. Times’ Hayley Smith.
“The needs of the many outweigh the needs of the few.” You can apply this principle to many things. From ground water to billionaires who double their wealth and pay relatively little in taxes. The native Americans planned for 7 generations. Capitalism assesses every 3 months.
Isn't this the "Tragedy of the Commons?"