Mineral County v. Walker River Irrigation Dist. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-16342
Plaintiff,
D.C. No.
WALKER RIVER PAIUTE TRIBE, 3:73-cv-0128-
Intervenor-Plaintiff, MMD
and
OPINION
WALKER LAKE WORKING GROUP,
Defendant-Appellant,
MINERAL COUNTY,
Intervenor-Plaintiff-Appellant,
v.
WALKER RIVER IRRIGATION
DISTRICT; NEVADA DEPARTMENT OF
WILDLIFE; FENILI FAMILY TRUST,
c/o Peter Fenili and Veronica Fenili,
Trustees; SIX N RANCH, INC., c/o
Richard and Cynthia Nuti; MICHAEL
NUTI; NANCY NUTI; RALPH E. NUTI;
MARY E. NUTI; LAWRENCE M. NUTI;
LESLIE NUTI; MICA FARMS, LLC, c/o
Mike Faretto; JOHN AND LURA
WEAVER FAMILY TRUST, c/o Lura
Weaver, Trustee; SMITH VALLEY
GARAGE, INC., c/o Dan Smith and
2 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
Shawna Smith; DONALD GIORGI;
LORIE MCMAHON; MERLE
MCMAHON; CENTENNIAL
LIVESTOCK; LYON COUNTY;
ANNETT’S MONO VILLAGE; F.I.M.
CORPORATION; R.N. FULSTONE
COMPANY; JAMES T. FOUSEKIS,
Trustee; CHRIS H. GANSBERG, JR.;
FAYE E. GANSBERG; TODD
GANSBERG; HUNEWILL LAND &
LIVESTOCK CO., INC.; DAVID
SCEIRINE; PAMELA HAAS; VIRGINIA
LAKE MUTUAL WATER COMPANY;
MONO COUNTY, County Counsel,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du,* District Judge, Presiding
Argued and Submitted August 30, 2017
Submission Withdrawn May 2, 2018
Resubmitted January 21, 2021
Pasadena, California
Filed January 28, 2021
*
This case was reassigned to Judge Du from Judge Robert Clive
Jones on July 19, 2018.
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 3
Before: A. Wallace Tashima, Susan P. Graber,** and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Tashima
SUMMARY***
Water Rights
The panel affirmed in part, and vacated in part, the district
court’s dismissal of Mineral County’s complaint that
intervened in longstanding litigation over the appropriation of
Walker River Basin waters.
In 1936, the U.S. District Court for the District of Nevada
entered the Walker River Decree, adjudicating and settling
water rights within the Walker River Basin under the doctrine
of prior appropriation. The County intervened, and alleged
that the public interest and maintenance of the public trust
required that water flows be allowed to reach Walker Lake to
sustain the fish population and preserve recreational values
for the County residents. After the district court dismissed
the County’s complaint and the County appealed, the panel
certified questions to the Nevada Supreme Court, which held
**
Judge Raymond C. Fisher was a member of the panel that certified
questions to the Nevada Supreme Court. Judge Fisher has since died and
Judge Graber was randomly drawn to replace him. See Ninth Cir. Gen
Order 3.2(h).
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
that Nevada’s “public trust doctrine applies to rights already
adjudicated and settled under the doctrine of prior
appropriation,” but that “the public trust doctrine does not
permit reallocating water rights already adjudicated and
settled under the doctrine of prior adjudication.” Mineral
County v. Lyon County, 473 P.3d 418, 425, 430 (Nev. 2020)
(en banc).
In light of the Nevada Supreme Court’s decision, the
panel held that the district court properly dismissed the
County’s public trust claim to the extent it sought a
reallocation of water rights adjudicated under the Decree and
settled under the doctrine of prior appropriation. The panel
vacated the judgment of the district court and remanded with
instruction to consider the County’s public trust doctrine
claim to the extent it sought remedies that would not involve
a reallocation of adjudicated water rights. The panel
remanded to the district court to consider in the first instance
the County’s arguments that were not properly addressed by
the district court. The panel rejected as untimely the
County’s challenge to the 1936 Decree itself.
COUNSEL
Simeon M. Herskovits (argued) and Iris Thornton, Advocates
for Community & Environment, El Prado, New Mexico; and
Sean A. Rowe, Mineral County District Attorney, Hawthorne,
Nevada; for Plaintiff-Intervenor-Appellant Mineral County,
Nevada, and Defendant-Appellant Walker Lake Working
Group.
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 5
Gordon H. DePaoli (argued) and Dale E. Ferguson,
Woodburn and Wedge, Reno, Nevada, for Defendant-
Appellee Walker River Irrigation District.
Roderick E. Walston (argued), and Steven G. Martin, Best
Best & Krieger LLP, Walnut Creek, California; Stephen B.
Rye, District Attorney, Lyon County, Yerington, Nevada;
Jerry M. Snyder, Reno, Nevada; Therese A. Ure, Schroeder
Law Offices P.C., Reno, Nevada; Stacey Simon, County
Counsel; Stephen M. Kerins, Deputy County Counsel; Jason
Canger, Assistant County Counsel; Office of the County
Counsel, County of Mono, Mammoth Lakes, California; for
Defendants-Appellees Lyon County, Centennial Livestock,
Mono County, and the Schroeder Group.
Bryan L. Stockton (argued), Senior Deputy Attorney General;
Tori N. Sundheim, Deputy Attorney General; Aaron D. Ford,
Attorney General; Attorney General’s Office, Carson City,
Nevada; for Defendant-Appellee Nevada Department of
Wildlife.
Robert W. Byrne, Senior Assistant Attorney General; Randy
L. Barrow, Supervising Deputy Attorney General; Deborah
Barnes and Tara L. Mueller, Deputy Attorneys General;
Attorney General’s Office, Oakland, California; for Amicus
Curiae State of California.
John Echeverria, Vermont Law School, South Royalton,
Vermont, for Amici Curiae Natural Resources Defense
Council and Sierra Club.
David R. Owen, Professor of Law, UC Hastings College of
Law, San Francisco, California; Richard M. Frank, Professor
6 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
of Environmental Practice, UC Davis School of Law, Davis,
California; for Amici Curiae Law Professors.
Wes Williams, Law Offices of Wes Williams Jr. P.C.,
Schurz, Nevada, for Amicus Curiae Walker River Paiute
Tribe.
OPINION
TASHIMA, Circuit Judge:
In 1936, the United States District Court for the District
of Nevada entered the Walker River Decree (“Decree”),
adjudicating and settling water rights within the Walker River
Basin under the doctrine of prior appropriation. In the
ensuing decades, these water allocations have adversely
affected Walker Lake, the terminus of the Basin’s water
flows. The lake has lost more than half of its surface area and
volume, and the lake’s once-vibrant fishing and recreational
activities—the lifeblood of Mineral County’s economy and
a significant source of County revenues—have been
threatened. To address these effects, Mineral County (the
“County”) intervened in longstanding litigation over the
Basin’s waters, alleging that “[t]he public interest and
maintenance of the public trust require[s] that the flows be
allowed to reach Walker Lake that will sustain minimum
levels for the naturally occurring fish population and provide
for the preservation of Walker Lake for the citizens and
residents of the County for recreational values, preservation
of wildlife, and maintenance of the economy of Mineral
County.”
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 7
After the district court dismissed the County’s complaint
and the County appealed, we certified questions to the
Nevada Supreme Court, see Mineral County v. Walker River
Irrigation Dist., 900 F.3d 1027, 1034 (9th Cir. 2018), which
the state court has now answered, holding that Nevada’s
“public trust doctrine applies to rights already adjudicated
and settled under the doctrine of prior appropriation,” but that
“the public trust doctrine does not permit reallocating water
rights already adjudicated and settled under the doctrine of
prior appropriation.” Mineral County v. Lyon County,
473 P.3d 418, 425, 430 (Nev. 2020) (en banc).
In light of the Nevada Supreme Court’s decision, we
vacate the judgment of the district court and remand with
instructions to consider the County’s public trust doctrine
claim to the extent it seeks remedies that would not involve
a reallocation of adjudicated water rights. We also reject as
untimely the County’s challenge to the 1936 Decree itself.
I. BACKGROUND
We summarized the background of this litigation in our
August 2018 certification order:
A. The Walker River Basin and Walker
Lake’s Decline
The Walker River Basin covers about
4000 square miles, running northeast from its
origins in the Sierra Nevada Mountains in
California before turning south and ultimately
flowing into Walker Lake in Nevada. The
first quarter of the basin lies in California, and
California accounts for a majority of the
8 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
precipitation and surface water flow into the
basin. The vast majority of the water is
consumed across the border in Nevada.
Walker Lake is about 13 miles long, five
miles wide and 90 feet deep—a large lake by
most any measure. But its size and volume
have shrunk significantly since they were first
measured in 1882. By 1996, Walker Lake had
retained just 50 percent of its 1882 surface
area and 28 percent of its 1882 volume.
Today’s Walker Lake also suffers from high
concentrations of total dissolved solids
(“TDS”)—meaning it has a high salt content,
low oxygen content and a high temperature.
These conditions have drastically
degraded the lake’s environmental and
economic well-being. The high TDS
concentrations have proven so inhospitable to
fish species that, according to Mineral
County, much of the lake’s fishing industry
“has been eliminated for the time being.”
Walker Lake’s decline also threatens its status
as an important shelter for migratory birds,
and it has “drive[n] away the many Nevadans
and other Americans who used Walker Lake
for recreational enjoyment and economically
productive activities.” 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.
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 9
B. Litigation Over Water Rights in the
Basin
In an effort to protect and rehabilitate
Walker Lake, Mineral County intervened in
the long-running litigation over water rights in
the Walker River Basin. That litigation began
in 1902, when one cattle and land company
sued another in the United States District
Court for the District of Nevada over
appropriations from the Walker River. After
considerable back and forth in state and
federal court—including a Supreme Court
decision holding that the Nevada federal court
had prior, exclusive jurisdiction over the
action, see Rickey Land & Cattle Co. v. Miller
& Lux, 218 U.S. 258, 262 (1910)—the case
ended in 1919.
Five years later, the United States brought
a new action in Nevada federal court, seeking
to establish the water rights of the Walker
Lake Paiute Tribe. After 12 more years of
litigation—bringing us to 1936—that
proceeding resulted in the Walker River
Decree. The Walker River Decree
adjudicated the water rights of hundreds of
claimants under the doctrine of prior
appropriation.[1] The Decree also created the
1
“Like most western states, Nevada is a prior appropriation state.
The prior appropriation doctrine grants ‘[a]n appropriative right [that] may
be described as a state administrative grant that allows the use of a specific
quantity of water for a specific beneficial purpose if water is available in
10 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
Walker River Commission and the United
States Board of Water Commissioners. The
federal district court in Nevada has
maintained jurisdiction over the Decree and
its administration ever since.
In 1987, the Paiute Tribe intervened in the
Walker River litigation to establish
procedures for reallocating water rights under
the Decree. Since that proceeding’s
conclusion in 1988, the Nevada State
Engineer reviews all applications to change
allocations under the Decree in Nevada,
subject to review by the Nevada federal
district court. It appears that Nevada’s prior
appropriation law, which has largely been
codified, governs the Engineer’s decisions and
the district court’s review. See, e.g., Nev.
Rev. Stat. § 533.370; see also Greg Walch,
Water Law: 9 Treading Water Law—A
Nevada Water Rights Primer, 6 Nev. Law. 18,
18 (Nov. 1998) (discussing the history of prior
appropriation and its codification in Nevada).
Next, in 1991, the Paiute Tribe and the United
States sought recognition of the Tribe’s right
to a certain additional amount of water from
the Walker River, under a principle that
Native American tribes have superior water
rights based on their relationship to the federal
government . . . .
the source free from the claims of others with earlier appropriations.’”
Mineral County, 473 P.3d at 423 (alterations in original) (quoting Desert
Irrigation, Ltd. v. State, 944 P.2d 835, 837 n.1 (Nev. 1997) (per curiam)).
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 11
C. Mineral County’s Intervention
In 1994, Mineral County moved to
intervene in the Decree litigation. The district
court granted the motion in 2013. The
amended complaint in intervention alleges
that “[a]ctivities and businesses attributable to
the presence and use of Walker Lake
represent[ ] approximately 50% of the
economy of Mineral County.” The complaint
asks the Decree court, “pursuant to its
continuing jurisdiction under . . . the . . .
Decree, [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.” Mineral County seeks
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.”[2]
The Working Group—already a party to
this litigation as a right-holder under the
Decree—supports Mineral County’s position.
2
The Nevada Supreme Court expressly adopted the public trust
doctrine in Lawrence v. Clark County, 254 P.3d 606, 607 (Nev. 2011) (en
banc). “The public trust doctrine establishes that the state holds its
navigable waterways and lands thereunder in trust for the public.”
Mineral County, 473 P.3d at 423. In Mineral County, the Nevada
Supreme Court clarified that the “doctrine applies to rights already
adjudicated and settled under the doctrine of prior appropriation” and “to
all waters within the state, whether navigable or nonnavigable.” Id. at 425
(emphasis omitted).
12 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
Because of the posture of this case, the
Working Group is considered a defendant as
to Mineral County’s intervention. But the
Working Group “always has supported efforts
to transfer water rights for use in Walker Lake
. . . and has supported the enforcement of the
public trust doctrine for this same purpose.”
In 2015, the district court dismissed the
amended complaint in intervention. First, the
district court held Mineral County lacked
standing to assert its public trust claim. It
concluded Mineral County’s claim “was
based purely on a parens patriae theory” of
standing—i.e., that Mineral County did not
assert any of its own interests, only those of
its citizens—and that a county lacks the
ability to sue as parens patriae.
Notwithstanding its conclusion on
standing, the district court also addressed the
merits of Mineral County’s public trust claim.
It concluded the public trust doctrine may
factor into future allocations of water, but that
using the doctrine to reallocate rights already
adjudicated under the Decree would constitute
a taking and require just compensation.
Invoking the political question doctrine, the
court concluded it lacked authority to order
Nevada to effectuate such a taking. The
district court also held, without analysis, that
Walker Lake is not part of the Walker River
Basin under the Decree, and therefore that the
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 13
Decree prohibits allocating any water
specifically to the lake.
Mineral County, 900 F.3d at 1028–30 (9th Cir. 2018)
(amended order) (some alterations in original) (footnotes
omitted).
II. PROCEEDINGS ON APPEAL
The County timely appealed. We issued a memorandum
disposition holding that the County has standing. Mono
County v. Walker River Irrigation Dist., 735 F. App’x 271,
273–74 (9th Cir. 2018). In a published opinion, we certified
two questions to the Nevada Supreme Court:
[1] Does the public trust doctrine apply to
rights already adjudicated and settled under
the doctrine of prior appropriation and, if so,
to what extent?
[2] If the public trust doctrine applies and
allows for reallocation of rights settled under
the doctrine of prior appropriation, does the
abrogation of such adjudicated or vested
rights constitute a “taking” under the Nevada
Constitution requiring payment of just
compensation?
Mineral County, 900 F.3d at 1034. In a related appeal, we
also held that Walker Lake is part of the Walker River Basin.
14 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
United States v. U.S. Bd. of Water Comm’rs, 893 F.3d 578,
606 (9th Cir. 2018).3
The Nevada Supreme Court accepted certification,
rephrased the first question to ask whether “the public trust
doctrine permit[s] reallocating rights already adjudicated and
settled under the doctrine of prior appropriation,” and
answered the question in the negative. Mineral County,
473 P.3d at 421. The court explained that “Nevada’s water
statutes are consistent with the public trust doctrine” because
they “require the State Engineer to consider the public
interest in allocating water rights” and satisfy the three-part
test described in Lawrence for determining whether the
alienation of public trust property is valid. Id. at 426–27
(emphasis omitted) (citing Lawrence, 254 P.3d at 616). Next,
the court held that “[t]he state’s water statutes recognize the
importance of finality in water rights and therefore do not
permit reallocation of adjudicated water rights.” Id. at 429
(emphasis omitted). The court therefore held that “the public
trust doctrine does not permit reallocating water rights
already adjudicated and settled under the doctrine of prior
appropriation.” Id. at 430. The court explained:
We recognize the tragic decline of Walker
Lake. But while we are sympathetic to the
plight of Walker Lake and the resulting
negative impacts on the wildlife, resources,
and economy in Mineral County, we cannot
use the public trust doctrine as a tool to uproot
3
In a separate related appeal, we also reassigned “all aspects of the
Walker River Basin water rights case pending in the District of Nevada”
to a different district judge. United States v. Walker River Irrigation Dist.,
890 F.3d 1161, 1174 (9th Cir. 2018).
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 15
an entire water system, particularly where
finality is firmly rooted in our statutes. We
cannot read into the statutes any authority to
permit reallocation when the Legislature has
already declared that adjudicated water rights
are final, nor can we substitute our own policy
judgments for the Legislature’s.
Id. (footnote omitted).
III. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim
upon which relief can be granted, accepting all factual
allegations in the complaint as true and drawing all
reasonable inferences in favor of the nonmoving party. Oki
Semiconductor Co. v. Wells Fargo Bank, N.A., 298 F.3d 768,
772 (9th Cir. 2002).
IV. DISCUSSION
To the extent that Mineral County seeks a reallocation of
water rights already adjudicated and settled under the doctrine
of prior appropriation, the parties agree that the County’s
claim is foreclosed by the Nevada Supreme Court’s decision.
Insofar as the County seeks a reallocation of water rights, it
appears that “the voluntary sale and purchase of water rights
is the only available means to accommodate the needs of
current water right holders and to restore Walker Lake under
16 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
the Decree.” Suppl. Br. of Appellee Nev. Dep’t of Wildlife
at 4.4
The County insists, however, that this is not the end of the
case. The County identifies two legal theories that it says
would not require a reallocation of adjudicated water rights.
Because the Nevada Supreme Court did not address, let alone
foreclose, these theories, the County maintains that we should
vacate the judgment and remand for further proceedings on
these two theories. As we shall explain, we agree in part with
the County’s contentions.
A. Challenging the 1936 Decree Itself
First, we reject the County’s argument that we should
remand for further proceedings on its claim that the 1936
Decree itself violates the public trust doctrine. The County
points out, correctly, that the water rights at issue here were
adjudicated in 1936, long before the Nevada Supreme Court,
in its 2011 Lawrence decision, first articulated its three-part
test for determining whether the alienation of public trust
waters satisfies the public trust doctrine.5 Thus, in the
4
Such efforts may have already achieved some success. According
to the County, a “substantial portion of the necessary inflows to Walker
Lake already is being provided for by the Walker Basin Conservancy’s
water rights acquisition program, which involves the purchase of Walker
River water rights on the open market and transfer of those rights to
instream flow use in order to benefit Walker Lake.” Suppl. Br. of
Appellants Mineral County & Walker Lake Working Grp. at 23.
5
Lawrence held that, when “reviewing dispensations of public trust
property . . . , courts of this state must consider (1) whether the
dispensation was made for a public purpose, (2) whether the state received
fair consideration in exchange for the dispensation, and (3) whether the
dispensation satisfies ‘the state’s special obligation to maintain the trust
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 17
County’s view, no court has ever determined whether the
dispensation of state waters under the 1936 Decree comports
with the public trust doctrine, and it is an open question
“whether adequate consideration of the public trust occurred
in the individual allocative decisions of the Walker River
Decree.” Suppl. Br. of Appellants Mineral County & Walker
Lake Working Grp. at 14. Consequently, the County argues
that this “case must be remanded to the district court to
determine . . . whether the 1936 Decree, which merely
confirmed pre-statutory prior appropriative rights, violated
the public trust doctrine by over-allocating the basin and
failing to consider the doctrine.” Id. at 19.
Whatever merit there may be to this novel contention, we
are not persuaded that the claim is timely. In Mineral
County, the Nevada Supreme Court noted that challenges to
a judicial decree adjudicating water rights must be brought
within three years:
As part of Nevada’s comprehensive water
statutes, which we conclude adhere to the
public trust doctrine, the Legislature enacted
NRS 533.185 to establish a judicial decree
regarding a water right permit. Regarding
those judicial decrees, NRS 533.210(1)
provides that:
The decree entered by the court, as
provided by NRS 533.185, shall be
final and shall be conclusive upon all
for the use and enjoyment of present and future generations.’” Lawrence,
254 P.3d at 616 (quoting Arizona Ctr. for Law v. Hassell, 837 P.2d 158,
170 (Ariz. Ct. App. 1991)).
18 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
persons and rights lawfully embraced
within the adjudication; but the State
Engineer or any party or adjudicated
claimant upon any stream or stream
system affected by such decree may,
at any time within 3 years from the
entry thereof, apply to the court for a
modification of the decree . . . .
Mineral County, 473 P.3d at 429 (emphasis in original)
(quoting Nev. Rev. Stat. § 533.210(1)). The County has not
pointed to any statute, rule, or case law authorizing such a
challenge more than 80 years after a decree has become final
and conclusive. Because allowing such challenges after so
much time has elapsed would plainly undermine the “finality
in water rights” that Nevada’s water statutes deem important,
see id. at 429–30, the County’s failure to act sooner is
dispositive. We therefore hold that the challenge is untimely.
B. Remedies That Do Not Involve a Reallocation of
Water Rights
We agree, however, with the County’s second
contention—that its public trust claim remains viable because
the County can seek remedies that would not involve a
reallocation of adjudicated water rights.
The County argues that “the public trust doctrine imposes
a continuing affirmative duty on the Decree Court to manage
the resource for the benefit of future generations using
remedies other than a reallocation of water rights, which is
not permitted.” Suppl. Br. of Appellants Mineral County &
Walker Lake Working Grp. at 6. Hence, according to the
County, this case “must be remanded to the district court to
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 19
determine: (1) . . . whether the continuing duty of the Decree
Court to maintain Walker Lake’s public trust uses and values
has been violated since the entry of the Decree; (2) if so, what
level of average annual minimum flows must reach the Lake;
and finally (3) what the proper remedy ought to be.” Id.
at 19. Proper remedies, the County tells us, could include:
(1) a change in how surplus waters are
managed in wet years and how flows outside
of the irrigation season are managed;
(2) mandating efficiency improvements with
a requirement that water saved thereby be
released to Walker Lake; (3) curtailment of
the most speculative junior rights on the
system; (4) a mandate that the State provide
both a plan for fulfilling its public trust duty
to Walker Lake and the funding necessary to
effectuate that plan; and/or (5) an order
requiring water rights holders to come up with
a plan to reduce consumptive water use in the
Basin as was done by the State Engineer in
Diamond Valley.
Id. at 15–16 (alterations omitted). The County maintains that
achieving sufficient inflows into Walker Lake “without a
reallocation of water rights” is a factual issue “for the Decree
Court to address on remand.” Id. at 25.
We are not persuaded by the Walker River Irrigation
District’s (“Irrigation District”) arguments that this issue does
not warrant a remand. First, we agree with the County that
the Nevada Supreme Court’s decision in Mineral County does
not foreclose the County from seeking remedies under the
public trust doctrine that do not require a reallocation of
20 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
adjudicated water rights. To be sure, the Nevada Supreme
Court assumed that affording effective relief to the County
would require a reallocation of such rights: “The Basin does
not appear able to meet the county’s needs without abrogating
the rights of more senior right holders. The county’s request
would therefore require reallocating water rights.” Mineral
County, 473 P.3d at 430 n.8. The court, however, did not
consider whether other remedies were viable. The court,
moreover, squarely held that “[t]he public trust doctrine
applies to rights already adjudicated and settled under the
doctrine of prior appropriation.” Id. at 425. Although the
court noted that the public trust doctrine “generally acts as a
restraint on the state in alienating public trust resources,” id.
at 423 (emphasis added), the court did not hold, as the
Irrigation District suggests, that the doctrine acts only “as a
restraint on alienation of a public resource.” Suppl. Br. of
Appellee Walker River Irrigation Dist. at 13.
Second, we are not persuaded by the Irrigation District’s
argument that the County’s argument is a new one and that,
“[a]fter over 25 years, Mineral County should not be allowed
to change its position.” Id. at 12. Although Mineral County’s
motion to intervene, filed in 1994, was granted in 2013, the
litigation remains at an early stage. The district court
dismissed the County’s amended complaint in intervention at
the pleading stage, under Rule 12, and the case has since been
on appeal. Furthermore, the County’s complaint is broad
enough to encompass the remedies it now seeks, and, even if
that were not the case, “[t]he liberal policies reflected in
Rules 15(a) and 15(b) permit the demand to be amended
either before or during trial.” 5 Arthur R. Miller et al.,
Federal Practice and Procedure § 1255 (3d ed. 2020). Under
Rule 54(c), moreover, “the district court may grant any relief
to which the evidence shows a party is entitled, even though
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 21
that party has failed to request the appropriate remedy or
remedies in his pleading.” Id.
Third, we decline to address for the first time on appeal
the Irrigation District’s arguments that the County’s proposed
remedies “are either unnecessary, or clearly beyond the
power of the district court.” Suppl. Br. of Appellee Walker
River Irrigation Dist. at 14. To be sure, some of the
arguments the Irrigation District raises may have merit. The
Irrigation District plausibly argues, for example, that
“[c]urtailment of the ‘most speculative junior rights’ on the
system for the benefit of Walker Lake clearly would be a
direct reallocation of those junior water rights”—action that
the Nevada Supreme Court’s decision forecloses. Id. at 15.
But these arguments have not been developed, passed on by
the district court, or briefed on appeal. We therefore leave
them for the district court to address, in the first instance, on
remand.
V. CONCLUSION
The district court properly dismissed Mineral County’s
public trust claim to the extent it seeks a reallocation of water
rights adjudicated under the Decree and settled under the
doctrine of prior appropriation. The County, however, may
pursue its public trust claim to the extent that the County
seeks remedies that would not involve a reallocation of such
rights. The judgment of the district court, therefore, is
affirmed in part and vacated in part, and the case is remanded
for proceedings consistent with this opinion.
22 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.
Each party shall bear its own costs on appeal.
AFFIRMED in part; VACATED in part; and
REMANDED.