Albemarle U.S., Inc. v. King, P.E. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ALBEMARLE U.S., INC., A DELAWARE No. 81886
CORPORATION AUTHORIZED TO DO
BUSINESS IN THE STATE OF
NEVADA; AND ITS PARENT
CORPORATION, ALBEMARLE
CORPORATION, A VIRGINIA
CORPORATION,
„
ILE
Appellants,
vs. MAY 1 8 2022
JASON KING, P.E., NEVADA STATE ELIZABETH A. BROWN
RKggPREME COURT
OLE
ENGINEER, DEPARTMENT OF sy
DEPUTY CLERK
CONSERVATION AND NATURAL
RESOURCES, STATE OF NEVADA;
ESMERALDA MINERALS, LLC, A
NEVADA CORPORATION; AND ITS
PARENT COMPANY, PURE ENERGY
MINERALS, LTD.,
Res eondeñts.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying
consolidated petitions for judicial review of decisions by the State Engineer.
Fifth Judicial District Court, Esmeralda County; Steven R. Kosach, Judge.
This appeal involves two decisions by respondent State
Engineer Jason King, granting a well waiver and extension thereof for two
wells in the Clayton Valley Hydrographic Basin in Esmeralda County, CV-
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7 and CV-8.1 Respondents, Esmeralda Minerals, LLC and its parent
company, Pure Energy, LTD. (collectively "Pure Energy"), applied for the
waiver and extension_ Appellants Albemarle U.S., Inc. and its parent
corporation Albemarle Corporation (collectively "Albemarle) filed petitions
for judicial review challenging the State Engineer's decisions, which the
district court consolidated and denied.2
When a State Engineer's decision is reviewed, the decision "is
prima facie correct, and the burden of proof is upon the party attackine it.
NRS 533.450(10); see also Office of State Eng'r v. Morris, 107 Nev. 699, 701,
819 P.2d 203, 205 (1991) ("[D]ecisions of the State Engineer are presumed
to be correct upon judicial review."). However, "Mil the context of an appeal
from a district court order denying a petition for judicial review of a decision
made by the State Engineer, this court has the authority to undertake an
independent review of the State Engineer's statutory construction, without
deference to the State Engineer's determination." Andersen Family Assocs.
v. Hugh Ricci, P.E., 124 Nev. 182, 186, 179 P.3d 1201, 1203 (2008).
Typically, the State Engineer's "factual determhiations will not be
disturbee by the reviewing court on a petition for judicial review as long as
they are "supported by substantial evidence." Pyramid Lake Paiute Tribe
of Indians v. Washoe Cty., 112 Nev. 743, 751, 918 P.2d 697, 702 (1996).
1 We recount the facts only as necessary for our disposition.
2Albemar1e has filed two subsequent petitions for judicial review,
Albemarle U.S., Inc. v. Wilson, Case No. CV-19-5113, and Albemarle U.S.,
Inc. v. Sullivan, CV-20-5121. A stipulation for intervention in both cases
was filed on January 27, 2021, and no subsequent hearings have been
scheduled.
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At the outset, we conclude that the reference to NAC 534.441 in
the waiver and its extension appears to be an oversight rather than an
intentional reliance on the wrong regulation. Although NAC 534.441 was
cited, this clearly was a waiver and extension for an existing well, and thus
NAC 534.449, which applies to existing wells, was the intended regulation,
as NAC 534.441 only applies to new wells.3
Moreover, the record supports a decision to grant the waiver
under NAC 534.449. When he made his decision, the State Engineer
possessed the statutorily required form request for the wells, information
on the well locations, the well diagrams describing CV-7 and CV-8's
construction, well drilling reports from the licensed well driller on the
project, and affidavits regarding the parties responsible for CV-7 and CV-8.
Pure Eneru provided reasons for why it believed that the wells would be
useful to monitor the groundwater, which the State Engineer decided
constituted good cause. Given the deference that the State Engineer is
afforded under NRS 534.060(7), we will not disturb his decision. We further
conclude that CV-7 and CV-8's construction and parameters, and any
alleged noncompliance with the regulations Albemarle raises, did not affect
the State Engineer's authority to grant the waivers under NAC 534.449 and
3NAC 534.441 and NAC 534.449 were both amended in 2020. See
Approved Regulation of the State Eng'r, LCB File No. R068-20, 12-29-2020;
Approved Regulation of the State Eng'r, LCB File No. R068-20, 12-29-2020.
We apply the versions that were in effect during the relevant timeframe.
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NRS 534.060(7), and thus he appropriately did so.4 Accordingly, we
ORDER the judgment of the district court AFFIRMED.5
Parraguirre
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Herndon
4 The instant action and the prior settlement that Pure Energy and
Albemarle reference are not "based on the same claims or any part of them
that were or could have been brought in the first action," Weddell v. Sharp,
131 Nev. 233, 235, 242, 350 P.3d 80, 81, 86 (2015), nor are the issues in the
two cases identical, see also, Alcantara ex rel. Alcantara v. Wal-Mart Stores,
Inc., 130 Nev. 252, 258-60, 321 P.3d 912, 916-17 (2014) (discussing the first
element of the doctrine of issue preclusion), so there is no claim or issue
preclusion. Pure Energy also argues that Albemarle is judicially estopped
from arguing that CV-7 and CV-8 should be plugged, however in making
this argument it relies upon a transcript that this court refused to take
judicial notice of, which is not included in the record on appeal, therefore
this argument lacks merit. Carson Ready Mix, Inc. v. First Nat'l Bank of
Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981) (We cannot consider
matters not properly appearing in the record on appeal.").
5To the extent the parties additional arguments are not addressed
herein, we conclude they do not warrant a different result.
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cc: Chief Judge, The Fifth Judicial District Court
Hon. Steven R. Kosach, Senior Judge
Madelyn Shipman, Settlement Judge
Squire Patton Boggs LLP
Brownstein Hyatt Farber Schreck, LLP/Reno
Brownstein Hyatt Farber Schreck, LLP/Las Vegas
Attorney General/Carson City
Taggart & Taggart, Ltd.
Esmeralda County Clerk
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