Tag: nevada

The Public Trust Doctrine and the Implications of the Walker Lake Litigation


FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned.  Rather, this commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.

An upcoming decision by the Supreme Court of Nevada may have major implications on the public trust doctrine’s ability to protect the public’s water resources.

The Walker River Basin is over 4,000 square miles and stretches from the Sierra Nevada Mountains to its terminus, Walker Lake.[1] Walker Lake is located in Mineral County, Nevada and is roughly thirteen miles long and over five miles wide.[2] The lake is primarily fed by the Walker River, which flows sixty-two miles from California to its mouth on Walker Lake. Unfortunately, Walker Lake has seen a massive decrease in water levels since the state of Nevada started allocating water rights from the Walker River to farmers and ranchers upstream. These water diversions have been so impactful that they have caused the Walker River to run dry before reaching the lake for an almost continuous ten-year period.[3] Reminiscent of Russia’s massive draining of the Aral Sea, since irrigation began on the Walker River, the lake has lost approximately 171 vertical feet of water and is now one third the size it once was.[4]

Not surprisingly, the dramatic decrease in water levels to Walker Lake has also led to significant water quality issues. The lake’s impaired water quality threatens native fish species as well as several bird species that use the lake as a resting stop along their migratory journeys.[5] The diminished water quality of the lake has also affected recreation activities such as boating, swimming, and of course fishing. To help restore Walker Lake, Mineral County has intervened in on-going litigation to challenge previous allocated water rights of farmers and ranchers from the Walker River.

This litigation revolves around a prior appropriation battle that has been on-going since 1924. A previous 1909 court case created the “Rickey decree,” which allocated water rights from the Walker River to over 150 different users.[6] In 1924, the Walker River Paiute Tribe and the United States sued the Walker River Irrigation District (“WRID”) to win recognition of the Tribe’s right to additional water rights from the Walker River.[7] Mineral County has now intervened to win recognition of the rights of its citizens under a legal theory known as the public trust doctrine.  

The public trust doctrine is a common law doctrine that dates back to Roman law. The public trust doctrine provides that sovereign states hold “all of [their] navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’ ”[8] This principle has been affirmed by the Supreme Court of the United States for over a century, and has been applied not only to navigable waters, but also to tributaries and ground water aquifers that feed navigable waters.[9]

Even though the public trust doctrine has been firmly established in the United States, how the public trust doctrine interacts with the Western United States prior appropriation system of water rights is still being navigated. Under the prior appropriation system, which is commonly found in the arid Western United States, water rights are generally allocated based on a “first come, first serve” system. In neighboring California which also recognizes prior appropriation and riparian law, the Supreme Court of California held in the seminal 1983 Mono Lake case that the public trust doctrine creates an affirmative duty for the state to take the public trust into account when planning or allocating water resources, and to protect public trust uses (such as swimming, boating, and fishing) whenever feasible.”[10] The Supreme Court of California further went on to hold that the prior allocated water rights out of Mono Lake are still subject to the public trust doctrine, and as such must comply with the public trust duties of the state.

The question of how the public trust interacts with previously appropriated water rights is still unanswered by the courts in Nevada. Nonetheless, the public trust in water resources is generally recognized as paramount to private use of water. A linchpin of the Supreme Court of California’s decision to protect Mono Lake from excessive upstream water diversions was the irrevocable nature of the public trust doctrine and the duties of the state as trustee of Mono Lake. The discovered harm to public trust waters and dependent water resources and uses substantiated the Court’s authority to limit previously appropriated water rights to protect the public trust. Mineral County’s challenge to previously allocated water rights from the Walker River is therefore dependent whether the Supreme Court of Nevada’s will follow the Supreme Court of California and rule that the public trust doctrine is paramount to prior allocated water rights in Nevada. 

If the Supreme Court of Nevada does indeed follow its neighbor to the west, the state of Nevada must fulfill a duty to continually supervise the taking and use of appropriated water rights. Nevada would not be confined to prior allocated water rights, but rather would evaluate these previously allocated water rights to ensure that such rights do not negatively affect the public’s interest in the water resources of Nevada. It is a hard task to balance the needs of farmers and ranchers with the public’s interest in restoring Walker Lake. However, Nevada must resolve this complex question of how to best manage these perpetual competing interests in its freshwater resources for future water security.

To ensure the long-term sustainability and future of Nevada’s finite fresh water resources, the Supreme Court of Nevada should conclude that the state has an affirmative duty to consider the impacts on public trust resources for both future allocations and maintenance of previously allocated water rights. This conclusion would allow Nevada to restore Walker Lake and more importantly guarantee that the state could effectively manage other public trust resources, so that all citizens of Nevada may always enjoy them. Additionally, a decision from the Supreme Court of Nevada that establishes the public trust doctrine as paramount over prior allocated water rights would likely affect how other courts view future challenges to the public trust doctrine across the West and throughout the United States.

In conclusion, even though the litigation surrounding the devastated Walker Lake is binding only in the state of Nevada, the decisions made in this case surrounding the public trust doctrine have the potential to ripple across the nation. The public trust doctrine allows citizens to hold governments accountable for their decisions concerning our public resources. It is a paramount right that is inalienable and perpetual in nature. The Supreme Court of Nevada must now come to a just conclusion and strengthen our ability as citizens to protect the water and natural resource we so deeply depend on and care about.

[1] United States v. Walker River Irrigation District, No. 3:73-cv-00128-RCJ-WGC, 2015 WL 3439122, *1-10, *1 (9th Cir. May 28, 2015).

[2] Id.

[3] Id.

[4] Walker Lake Crusaders,  http://www.walkerlakecrusaders.com/ (last visited Jun. 11, 2018)

[5] Staci Emm and Kellie Zuniga, Walker Lake: A snapshot of Water Flow and Water Quality, (2008), https://www.unce.unr.edu/publications/files/nr/2008/fs0808.pdf

[6] Daniel Rothberg, 9th Circuit Ruling on Walker Lake Puts Far-Reaching Water Rights Issue Before Nevada Supreme Court, The Nevada Independent (May 27, 2018).

[7] United States v. Walker River Irrigation District, No. 15-16478, 2018 WL 2306279, at *1-10, 1 (9th Cir. May 22, 2018)

[8]  National Audubon Society v. The Superior Court of Alpine County, 658 P.2d 709, 718 (Cal. 1983)(quoting Colberg, Inc v. Sate of California ex rel. Dept. Pub Works, 432 P.2d 3 (Cal. 1967))

[9] James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. Envtl. L. 361, 401 (2014).

[10] National Audubon Society v. The Superior Court of Alpine County, 658 P.2d at 712.

Water and Nevada

When you think of Nevada (and that’s ne-va-da, not ne-vah-duh), I bet a clear picture forms in your mind: Las Vegas and its neon lights, slot machines, Elvis, quick divorces and UFO sightings (among other things). Those are all part of it, yes. But did you know Nevada is an outdoor-lover’s paradise? My husband and I moved there in 2014, for this reason. We get about 350 days of sunshine a year. There are mountains, valleys, canyons, hot springs and old-growth forests to hike, bike, camp and explore, year-round, and much of it is pristine due to federal land management, which prevents development. In the summer, it’s warm during the day but cools down at night. Winters are full of skiing and snowboarding. The sunsets are always out of this world.

Notice how I didn’t mention anything that had to do with water? Water is not the same here. Nevada is an alpine desert, and we get the good and bad that comes with it. Water is scarce, both on the ground and coming from the skies. In Reno, where I live, I can count on two hands how many days it rained last year. Summer is hot and dry. I’ve adjusted to this climate without even realizing it; I always carry lotion and chapstick for dry skin, my yard only has native, low water plants and I stick to my designated water use days religiously.

And it’s not like we don’t have water at all – there’s the Truckee River to fish, kayak and float, and Lake Tahoe is only 40 minutes south. Tahoe is a saving grace for sure; a true oasis in the desert and it’s been a vacation spot of Californians for generations. But over the years the lake has become increasingly inaccessible (and less fun) due to overcrowding and overdevelopment. Tahoe’s water is also pure snowmelt, and combined with the depth means the lake never warms over 50 degrees, making it un-swimable for babies like myself.

Skiing in Nevada (after a particularly good storm) with Lake Tahoe in the background.

Northern Nevada, like much of California, is dependent on snowfall in the Sierra Nevada Mountains for our water. Nevada has been experiencing different stages of drought for a while now, thanks to climate change. Some parts of the state are worse than others, and it always seems like some not-too-far-away city is under the threat of actually running out of water if there’s no rainfall. The storm predictions always start in the fall, and we all hope for storms with lots of snow for a good ski and snowboard season, but also to create a good snowpack that will melt and fill our reservoirs. The drought the past few years has been rough. But even our recent “Miracle March” wasn’t enough to erase the snow drought from last season, which hadn’t erased it from the year before… and so on.  This seems to be the new normal. Storms bring precipitation, but we’re always playing catch-up from the last storm or two that didn’t bring enough. At least Reno is more fortunate than most of Nevada; we have more water resources to pull from and our proximity to the mountains and higher elevation give us a rain and snowfall advantage when compared with a city like Las Vegas. Our reservoirs are currently full and the outlook for this drought year is optimistic.

That’s why Michigan is so unique. Water is everywhere. It’s part of the culture, and people are connected to it. We all have a water here, whether it’s the Traverse Bay, the Boardman River, Lake Michigan, or for me, Birch Lake- we feel a connection to some body of water for one reason or another. It took moving away and living in a dry climate for me to truly appreciate how lucky this region is to have such an abundant resource, and how intertwined it is with our lives. And don’t get me wrong; I love living in Nevada. There are too many beautiful, serene places to count, and I love the culture. But no matter where I live, I will always miss the waterways of Michigan. A day on Lake Tahoe is never wasted, but a part of me will always wish that when I reach my hand over the side of the boat into the cool depths, I were instead feeling the warm waters of Michigan.

Kirsten Nolet is assisting FLOW this summer as part of a Patagonia-sponsored environmental internship.  She was born in the area and lived here until 2004, and tries to get back as often as she can.  She is currently employed by Patagonia as a stockroom manager and lives in Reno, Nevada.