Subject: Nevada Assembly Bill 380 (AB 380)
Date: 3/25/99

Update

AB 380 was introduced in the Nevada Assembly and was moving along quite nicely as a result of the amendments that were proposed. Because the only copy of the bill available on the internet is the original, and because there have been so many amendments, NWPA provides the following, which are the exact language of the amendments as they were proposed:

Add a new section to Nevada Revised Statutes (NRS) Chapter 533 (proposed as 533.043) to read as:

"The priority of a water right acquired by a person for use in a federal reclamation project is determined according to the date on which the United States appropriated water for initiation of the project and all such water rights so acquired are governed by the applicable Nevada law in place as of the priority date, notwithstanding the fact that the water rights so appropriated and acquired may ultimately vest in the name of a person at a later date. No additional water rights are stated or implied by the determination of the priority date pursuant to this section."

"Amended NRS 533.040 to read as follows:

"All water used in this state for beneficial purposes shall remain appurtenant to the place of use; provided:

"1. That if for any reason it should at any time become impracticable to use water beneficially or economically at the place to which it is appurtenant, the right may be severed from such place of use and simultaneously transferred and become appurtenant to other place or places of use, in the manner provided in this chapter, and not otherwise, without losing priority of right heretofore establish; "2. That the provisions of this section shall not apply in cases of ditch or canal companies or irrigation districts which have appropriated water for diversion and transmission to the lands of private persons at an annual charge; and "3. For the purposes of this section, a water right in a federal reclamation project is appurtenant to any place of use within the project or if the place of use is described in a document evidencing the right, then the water right is appurtenant to and may be used anywhere within the described area provided that the total amount of water used on that area does not exceed the total amount of water that has been appropriated."

Amended NRS 533.060 to read as follows:

"NRS 533.060

"1. Rights to use the water shall be limited and restricted to so much thereof as may be necessary, when reasonably and economically used for irrigation and other beneficial purposes, irrespective of the carrying capacity of the ditch. All the balance of the water not so appropriated shall be allowed to flow in the natural stream from which such ditch draws its supply of water, and shall not be considered as having been appropriated thereby. "2. Rights to the use of surface water may not be lost or forfeited through non-use. "3. Evidence including, but not limited to, the following may be considered to create a presumption that the right to use the water has not been abandoned during a period when the holder of a right can provide:

"a. Records of proof of: "(1) The delivery of water; or "(2) The payment of any costs of maintenance and other operational costs incurred in delivering the water; or "(3) The payment of any costs for capital improvements, including works of diversion and irrigation; "b. Data regarding production of crops; "c. Maintenance of or contracts for the construction or maintenance of works of diversion and irrigation; or "d. Water rights that have been recognized as a part oftheir future water supply by a governing body of any local government of this state or any public utility which is a purveyor of water within the state."

No prescriptive right to the use of such water or any of the public water appropriated or unappropriated can be acquired by adverse user or adverse possession for any period of time whatsoever, but any such right to appropriate any of such water shall be initiated by first making application to the state engineer for a permit to appropriate the same as provided in this chapter and not otherwise.

The State of Nevada reserves for its own present and future use all rights to the use and diversion of water acquired pursuant to chapter 462, States of Nevada 1963, or otherwise existing within the watersheds of Marlette Lake, Franktown Creek and Hobart Creek and not lawfully appropriated on April 26, 1963, by any person other than the Marlette Lake Company. No such right may be appropriated by any person without the express consent of the legislature."

THESE ARE THE ONLY CHANGES TO CURRENT STATUTE PROPOSED.

Basically, the bill does five things:

1. Establish a priority date for reclamation projects as the date when Congress took the action to appropriate water for the project. This eases delivery hassles. Everyone within an irrigation project shares equally in the water available, regardless if they had a pre-project water right or a 1964 water right. They have since the inception of the project. To attempt to apply differing priority dates based upon when the water was put to beneficial use would cause sheer havoc.

2. It declares that surface water rights cannot be lost by reason of forfeiture. This provision benefits everyone in the state. Reno needs it, Washoe County needs it, Las Vegas needs it, in fact, there isn't a municipality in this State that wouldn't benefit as a result, as most urban areas purchase water rights from people who own ground that is no longer in agricultural production. They then hold on to that water until it is needed. If that water has a priority date later than March of 1913, that municipality or public utility risks losing that water, based on forfeiture, for not having used it in excess of five years. In the 80 years the current law has been on the books, not one single acre of water rights has been lost by reason of forfeiture.

3. Allows farmers to use their water rights anywhere within their farmers to use their water rights anywhere within their farm, provided they don't exceed their total allocation. There will be no increase in the amount of water used by the owners of the water rights.

4. Provides a list of items that will serve as proof to show no intent to abandon a surface water right.

5. Provides protection for municipal and industrial water sources, so they cannot be lost by reason of abandonment.

At a hearing on the bill held March 10, 1999, Las Vegas interests, Washoe County interests, Sierra Pacific Power, the State Engineer -- virgually everyone testified they didn't have a problem with the bill if it were to include these amendments. In fact, the State Engineer's office had assisted in the bill drafting. Senator Reid, however, wants the bill to die because it would benefit the Newlands Project farmers. Public claims are being made by the attorney for the Pyramid Lake Tribe, Bob Pelcyger, that it will increase the Project's diversions from the Truckee River. This simply is not true. The bill language clearly states: "provided that the total amount of water used on that area does not exceed the total amount of water that has been appropriated." Thus, a water right owner is allowed to receive the amount of water to which he is entitled to receive by reason of his personal property, the water right, and no more.

This bill strengthens existing state law as it has been enforced for decades. It protects the state's right to make decisions on how and where to use its water resources. It protects municipal water sources. Ultimately, it will save money, so as to allow the State Engineer to get out of the costly litigation that has been ongoing since 1984 at the hand of the Pyramid Lake Paiute Tribe and its now wealthy attorney.

Subject: Water Right Transfer Litigation
Date: 7-24-98

Update

In a Minute Order entered in Chambers of Federal District Court Judge Howard McKibben, oral arguments regarding the appeal of State Engineer Ruling #4591 on the water right transfers were scheduled for Tuesday, August 18, 1998, at 8:30 am.

Ruling #4591, entered in December of 1997, was a substantial victory for the water right transfer applicants and all water users in the Newlands Project when the court-appointed factinder ruled that in the majority of cases, the water rights associated with the considered transfer applications were valid and that the Pyramid Lake Tribe's evidence "lacked specificity."

"We are very pleased that Judge McKibben recognizes the urgency in resolving these issues," said NWPA President Norman Frey. "It is not just farming and ranching operations that are at stake. The outcome of this litigation could well affect water law throughout the State of Nevada and the western United States."

At issue in the appeal is whether the State Engineer's Hearing Officer correctly applied the Ninth Circuit Court of Appeals remand decision regarding abandonment, forefeiture, and lack of perfection. The ruling expected as a result of the August 18th oral arguments will be another step toward resolution of not only the water right transfer cases, but also the lawsuits that began with the Pyramid Lake Tribe filing actions against more than 2,200 local resisdents in the latter part of 1993.

"As a minimum," said Frey, "those people whose water right transfers were addressed in Ruling #4591 should attend this hearing -- but the outcome will affect everyone who turns on a tap in the Newlands Project. In light of the recent victory of the City of Fallon and the County of Churchill in the National Environmental Policy Act case, and the nin out of nine favorable rulings in the bench/bottom lawsuit heard to date, it is clear that all is not lost."

Subject: National Environmental Policy Act suit
Date: 7/17/98

Update

The U.S. Ninth Circuit Court of Appeals on July 15, 1998, entered a landmark Decision of great importance to the residents of the Lahontan Valley, Nevada, and communities throughout the West. The Court's Decision reversed a lower court decision which held that neither the City of Fallon nor Churchill County had any legal standing to insist that the U.S. Department of Interior (DOI) comply with the National Environmental Policy Act (NEPA). The City and County had sued the DOI alleging that it had violated NEPA by failing to prepare a Programmatic Environmental Impact Statement (Programmatic EIS) prior to implementing the individual components of the Truckee-Carson Pyramid Lake Settlement Act (PL 101.618 - the Act).

The Circuit Court's finding affirms that local communities do have legal standing to force federal agencies to comply with existing environmental laws when local interests are affected. This is a victory for small communities everywhere. The City of Fallon and the County of Churchill believe that a Programmatic EIS is required in this case, and the Ninth Circuit obviously agrees. The City is greatly concerned with the environment of the entire Lahontan Valley and has been especially concerned that the DOI was unwilling to adequately study the effect upon the City's drinking water supply.

When the lower Court originally made it's ruling that the City and County had no standing to bring the suit last year, Fred Disheroon, the lawyer for the U.S.Department of Justice, was quoted in the Reno Gazette Journal that he viewed the odds of the City prevailing as "nil" and that the preparation and completion of a Programmatic EIS would "really put up a stumbling block to concluding the negotiated settlement." It was clear at that time that Mr. Disheroon preferred to implement the DOI's version of the Act notwithstanding the potential adverse impacts to the rural community.

The City of Fallon anticipates that further actions under the Act will be suspended until the Programmatic EIS is completed, otherwise, the purposes of the Act will be frustrated, and the Act subverted, apparently for the special benefit of Sierra Pacific Power Company and other partices which the United States is favoring through its present implementation of the Act.

The Court's decision gives the residents of the City of Fallon and Churchill County renewed strength and confirms that efforts and sacrifices made in the effort of defending water rights in the Newlands Reclamation Project (Truckee-Carson Irrigation District) have been appropriate and entirely justified.

Subject: Bench/Bottom
Date: 7/7/98

Update

REMINDER: The availability of spread water this year should allow most producers to receive close to a bench allocation during the 1998 production year. This should provide an opportunity for individuals to prove their need for a bench allocation versus a bottom allocation based on crop yield. The Bench and Bottom Lands Appeal Procedures state that a producer may be eligible for a change in allocation if the producer can show a reduction in crop yield due to the reduction in water duty from 4.5 a.f. per acre to 3.5 a.f. per acre (bench to bottom). This would mean collecting yeild data on individual fields, and possibly individual checks. Appeals may be submitted on individual fields, tracts or entire properties. The use of yield data may be the best opportunity for many producers to challenge the bench and bottom designations on their properties. Because of recent changes in the Operating Criteria and Procedures (OCAP), opportunities for receiving/using "spread water" in the future may be very limited. It appears water rights owners will only be able to prove yield by application of extra water (bench allocations) in years when water spreading is available. YOU SHOULD BE AWARE THAT THE ADDITION OF WATER OVER YOUR NORMAL 3.5 OR 4.5 A.F. ALLOCATION MAY RAISE WATER TABLE LEVELS ON YOUR PROPERTY. WATER TABLE IS ONE OF THE CRITERIA USED IN MAKING BENCH/BOTTOM DETERMINATIONS. COLLECTING CROP YIELD INFORMATION IS FOR YOUR OWN RECORDS AND IS COMPLETELY VOLUNTARY. THE NATURAL RESOURCES CONSERVATION SERVICE (NRCS) BELIEVES THAT BEING ABLE TO SHOW DOCUMENTATION OF SPECIFIC INFORMATION WILL STRENGTHEN YOUR ARGUMENT CONCERNING BENCH/BOTTOM. NRCS IS TRYING TO COLLECT SIMILAR INFORMATION ON AN INDIVIDUAL SOIL BY SOIL BASIS. If you have any questions concerning this matter, please contact NWPA or Rod Dahl, NRCS, at (775) 423-5124.

Subject: BENCH/BOTTOM DECISION
Date: 5/18/98

Update

To date approximately 60 property owners have had at least preliminary evaluations completed by NRCS. This includes on-site soils evaluations, seasonal high water table evaluations, and installation of water table monitoring wells. Nine appeals have been sent to the Federal Water Master requesting a change in designation from bottom land back to bench land, and all nine requests have been granted. Approximately 170 acres has been reclassified. Eight requests have been based on non-administrative changes and one on administrative change. On eappeal yet pending is based on a reduction of crop yield. Two of the designations that have been approved were in the Fernley area, three were in the Soda Lake area, two in the St. Clair area, and two in the Old River Reservoir area. Most parcels have been small areas which are benched above the surrounding fields. Copies of the procedure for appealing the Bench and Bottom Land decision are available at TCID, Bureau of Reclamation, and NRCS. If you have further questions, contact Rod Dahl at NRCS, (775) 423-5124.

Subject: Water Right Transfer Litigation
Date: 5/6/98

Update

A status conference was held before the Honorable Judge McKibben in the Federal District Court on Thursday, April 30t, 1998. Under discussion were NWPA's motion to dismiss as to certain individuals whose transfers the Pyramid Lake Tribe had withdrawn its protests and NWPA's motion to compel the Bureau of Reclamation to reinstate delivery of water to the 14 individuals whose transfers were the subject of the State Engineer's opinion 4591 entered in December of last year. Regarding the motion to dismiss, the Judge dismissed the cases against transfer permits 49224 (Scanlon) and 49393 (Rockey). The Judge also indicated an order dismissing cases against three individuals represented by Steve King and Mike Mackedon would be entered in five days, if the Pyramid Lake Tribe's counsel, Bob Pelcyger, did not notify the Court otherwise. As for the motion to compel the Bureau to reinstate delivery of the water, the Judge denied that motion, saying the issue of water deliveries was not before the Court, but stated that the United States was wrong to send the letter telling TCID to refrain from delivering the water, and that TCID should ignore that letter and deliver the water anyway. Given TCID's position as contractor for the Bureau of Reclamation, this situation puts TCID between a rock and a hard place. If they deliver the water as the Court indicated it would be okay to do, they could be in breach of their Contract with the Bureau. NWPA attorneys are meeting with other attorneys in the case to determine the best method of proceeding in this matter.

Subject: Electrical Power Distribution
Date: 04/23/98

Update

The Public Utilities Commission of Nevada has scheduled a Consumer Session for THURSDAY, APRIL 30, 1998, 4:00 pm in the cafeteria of West End Elementary School, 280 S. Russell Street, in Fallon. TCID had filed a petition with PUC seeking: 1) a Certificate of Public Convenience and Necessity to operate its electric distribution system, approval of tariffs, and authorization to obtain financing of not more than $30 million; 2) reissuance of their prior Certificate of Public Convenience and Necessity (No. 409) as an exclusive certificate authorizing the provision of electric current and operation of an electric distribution system for customers in the District, approval of tariffs, and approval of financing; or 3) a determination that the Commission does not have jurisdiction over the operations of TCID because it is a quasi-municipal entity.

In response, Sierra Pacific Power Company (SPP) filed a complaint alleging: 1) that SPP holds authority to provide electric service to TCID's customers; 2) that TCID is a utility and therefore is subject to the jurisdiction of PUC; 3) that TCID intends to operate the electric distribution system by itself or through others; and 4) that TCID does not hold the Certificate of Public Convenience and Necessity and is therefore in violation of law.

SPP has also filed two applications -- one for a Certificate of Public Convenience and Necessity au thorizing the provision of retail electric service to customers within the leasehold boundaries, except for those customers within TCID's legal boundaries as established in 1912 and 1922, and one for a Certificate of Public Convenience and Necessity authorizing SPP to provide retail electrict service to all of TCID's customers.

In addition, SPP has filed a petition to expand its electric service territory to include all customers within the boundaries of TCID.

The purpose of the consumer session is to take comments from the public on the quality of electric service they are currently receiving, as well as comments related to the filings described above. Formal evidentiary hearings for the Commission have been scheduled for a later date.

NWPA has been informed that SPP intends to "pack" this meeting with people sympathetic to their desire to take over ownership and operation of the electric power distribution system created and paid for by the water right owners of TCID. As water right owners who overwhelmingly voted to retain control of our property, it is important that we all attend this meeting and show our support for TCID's position!

Subject: Water Right Transfer Litigation
Date: 04/23/98

Update

NWPA received word on April 21, 1998, that Federal District Court Judge Howard McKibben has scheduled a hearing on NWPA's motion to dismiss and motion for order compelling the Bureau to release the water to the transfer applicants. That hearing is scheduled for APRIL 30, 1998, at 2:00 pm, in the Federal District Court in Reno. NWPA will have representatives at the hearing and will be reporting the outcome soon.

Subject: Water Right Transfer Case
Date: 3/28/98

Update

A Motion to Compel the Bureau of Reclamation to release the water was filed by NWPA attorneys on February 19, 1998. The US responded with its opposition to that motion on March 16, 1998. NWPA attorneys replied to the opposition on March 26, 1998. Since NWPA attorneys requested that the matter be expedited (put on the fast track), a hearing date is expected to be set very soon.

In the meantime, since snow pack levels indicate about a 162% year on the Carson River and about a 134% year on the Truckee, Project farmers should get a full allocation for what the Bureau permits them to have, and possibly spread water for the Carson Division. Understand, though, that spread water criteria has been changed by the Bureau to be available only after all reservoirs are full, the wetlands can't handle any more, and the Tarzyn Guage is running at 500 cfs or more. (Last year's criteria was 100 cfs at the Tarzyn Guage.)

Subject: Water Right Transfer Case
Date: 3/28/98

Update

Before any Appeal can be heard, the record, that is, the testimony and evidence that was heard before the State Engineer has to be certified to the Federal District Court. That was done on March 18, 1998, which means the Court probably received the certified record on March 19, 1998. The Tribe and the United States now h ave 30 days from that date within which to file their opening briefs, then NWPA attorneys have 30 days from that date to respond to the opening briefs. The Tribe and the U.S. then have 15 days after that to file a reply brief. Judge McKibben indicated that he would schedule the matter for hearing within 30 to 60 days after that. In the best case scenario, then, the Appeal would be heard some time in July of 1998.

Subject: Water Right Transfer Case
Date: 3/28/98

Update

On December 29, 1997, the State Engineer denied the U.S. Department of Justice's request to stay (discontinue) further hearings pending the Tribe's appeal and the U.S.'s intent to Appeal Opinion #4591. Also, on January 20, 1998, the State Engineer denied the Tribe's request that the hearings be stayed.

On February 2, 1998, Judge McKibben also denied the Tribe's and the United States' motions to stay the evidentiary hearings, but gave the State Engineer the discretion to decide whether to continue with the hearings.

By Notice issued February 6, 1998, the State Engineer suspended further evidentiary hearings until such time as a ruling has been entered on the Tribe's and the U.S.'s appeal of Opinion #4591.

On February 12, 1998, NWPA attorneys filed a request for reconsideration of the State Engineer's decision to stay further hearings and requested a status conference be held on March 5, 1998. The State Engineer responded that he will not hold further hearings until a decision is rendered on the appeal.

Subject: Water Right Transfer Case
Date: 3/27/98

Update

As of March 1, 1998, 28 individuals have had their evidentiary hearings before the State Engineer, the factfinder appointed by Federal District Court Judge McKibben. Of those 28 individuals, 13 are subject to State Engineer Opinion #4591 entered December 23, 1997.

Very generally, the opinion found:

1. That the Tribe has the burden of proving all of its claims as to abandonment, forfeiture, and lack of perfection, and must prove so by clear and convincing evidence.

2. That water rights contracted for in the Project are not appurtenant to the entire parcel of land described in any particular contract, but that the Truckee Carson Irrigation District's water right maps, although not of the quality one would hope, are the best evidence that exists as to the location of the water righted lands within the Project.

3. That in many instances, using mostly unrectified aerial photographs has far too great a margin of error to allow use of those photographs for land use determinations.

4. That the State Engineer will use the contract introduced a the best evidence of an underlying contract, unless other evidence indicates another contract date.

5. That the issue of ownership of the water rights in the Newlands Project was not resolved until the 1983 Supreme Court decision in Nevada v. U.S., which says that the Project farmers own the water rights. Consequently, the issue of abandonment of Project water rights was not considered relevant until that 1983 decision and the Tribe filed its protests alleging abandonment.

6. That if the lands being stripped of water rights were simultaneously replaced by irrigated lands where swales were filled in or sand dunes were leveled within the irrigable area of the same farm unit or contract area, then neither forfeiture or abandonment applies.

7. That pre-statutory vested water rights exchanged for Project water rights were perfected as a matter of fact and law.

8. That if all or a portion of the existing place of use is covered by a railroad, road, canal, drain, lateral, waste ditch, house, or other structure or right-of-way and the TCID, by its certification, indicates that area is within the irrigable area of the parcel, the irrigable area must include the area covered by the structure, since Reclamation Service regulations exclude such structures from the irrigable area, the structure must not have existed at the time of the contract.

9. That if a dirt lined supply ditch is within the irrigable area of an existing place of use, water was beneficially used on the parcel of land covered by the dirt lined ditch. It is the State Engineer's understanding that the Bureau of Reclamation required these areas to be water righted.

10. That the evidence supports the conclusion that for lands which have a water right contract dated pre-1927, at some point in time prior to the date of the contract, the water right was perfected.

11. That all water rights requested for transfer are changes of the 1902 water right decreed to the United States and all right emanating therefrom were initiated in accordance with the law in effect prior to March 22, 1913. Therefore, the water rights are not subject to the forfeiture provisions of Nevada Revised Statute.