EUREKA COUNTY; DIAMOND NATURAL RESOURCES PROTECTION & CONSERVATION ASSOCIATION; JASON KING, P.E., NEVADA STATE ENGINEER, DIVISION OF WATER RESOURCES, DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES; BAUMANN FAMILY TRUST; BURNHAM FARMS, LLC; GALEN BYLER; MARIAN BYLER; CONLEY LAND & LIVESTOCK, LLC; DAMELE FARMS, INC.; DIAMOND VALLEY HAY COMPANY, INC.; FRED L. ETCHEGARAY; JOHN J. ETCHEGARAY; MARY JEAN ETCHEGARAY; LW & MJ ETCHEGARAY FAMILY TRUST; EUREKA MANAGEMENT CO., INC.; GALLAGHER FARMS LLC; JAYME L. HALPIN; SANDI HALPIN; TIM HALPIN; HIGH DESERT HAY, LLC; J&T FARMS, LLC; J.W.L. PROPERTIES, LLC; MARK MOYLE FARMS LLC; J.R. MARTIN TRUST; CHERYL MORRISON; MATT MORRISON; DEBRA L. NEWTON; WILLIAM H. NORTON; PATRICIA NORTON; D.F. & E.M. PALMORE FAMILY TRUST; STEWARDSHIP FARMING, LLC; SCOTT BELL; KRISTINA BELL; DON BERGNER; LINDA BERGNER; JAMES ETCHEVERRY; MICHEL AND MARGARET ANN ETCHEVERRY FAMILY LIMITED PARTNERSHIP; MARK T. AND JENNIFER R. ETCHEVERRY FAMILY TRUST; MARTIN P. AND KATHLEEN A. ETCHEVERRY FAMILY TRUST; LAVON MILLER; KRISTI MILLER; LYNFORD MILLER; SUSAN MILLER; ALBERTA MORRISON; AND DONALD MORRISON, Petitioners,
THE SEVENTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF EUREKA; AND THE HONORABLE GARY FAIRMAN, DISTRICT JUDGE, Respondents, and SADLER RANCH, LLC; ROGER ALLEN; AND JUDITH ALLEN, Real Parties in Interest.
petition for a writ of prohibition, or in the alternative,
certiorari or mandamus, in a water law action.
Theodore Beutel, District Attorney, Eureka County; Allison
MacKenzie, Ltd., and Karen A. Peterson and Willis M. Wagner,
Carson City, for Petitioner Eureka County.
Paul Laxalt, Attorney General, and Justina A. Caviglia,
Deputy Attorney General, Carson City, for Petitioner Jason
McDonald Carano Wilson LLP and Debbie A. Leonard and Michael
A. T. Pagni, Reno, for Petitioners.
Parsons Behle & Latimer and Robert W. Marshall and
Gregory H. Morrison, Reno, for Real Parties in Interest Roger
Allen and Judith Allen.
Taggart & Taggart, Ltd., and David H. Rigdon, Paul G.
Taggart, and Rachel L. Wise, Carson City, for Real Party in
Interest Sadler Ranch, LLC.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
in Diamond Valley, Nevada, is over-appropriated and has been
pumped at a rate exceeding its perennial yield for over four
decades. In 2014, the Office of the State Engineer found that
groundwater levels in southern Diamond Valley had fallen over
100 feet. A vested, senior water rights holder has asked the
district court to order the State Engineer to curtail junior
water rights in the Diamond Valley Hydrographic Basin No. 153
(Diamond Valley). In this writ proceeding, we must determine
whether junior water rights holders are entitled to notice of
and an opportunity to participate in the district court's
consideration of this curtailment request. Because the
district court's consideration of the matter at the
upcoming show cause hearing could potentially result in the
initiation of curtailment proceedings, we conclude that due
process requires junior water rights holders in Diamond
Valley be given notice and an opportunity to be heard.
AND PROCEDURAL HISTORY
party in interest Sadler Ranch purchased its real property
and water rights in Diamond Valley in September 2011. The
acquired ranch was established in the mid-19th century, and
thus, Sadler Ranch claims to be a pre-statutory, vested,
senior water rights holder in Diamond Valley. Of the two
major springs on Sadler Ranch's property, one has
noticeably diminished in flow and the other has stopped
2014, Sadler Ranch petitioned the State Engineer for
replacement water to offset the loss from its springs but was
ultimately awarded a fraction of the volume of water it
requested. Dissatisfied with the State Engineer's
replacement water award, Sadler Ranch petitioned the district
court in April 2015 to order the State Engineer to initiate
curtailment proceedings regarding junior water rights in
Diamond Valley and to reimburse Sadler Ranch for damage to
its senior water rights. The district court subsequently
allowed dozens of parties to intervene in the litigation,
including petitioners Eureka County and Diamond Natural
Resources Protections & Conservation (collectively,
Eureka County) and all of the other petitioners listed in the
instant petition. The State Engineer then proposed to
designate Diamond Valley as a critical management area
(CMA). Sadler Ranch moved to stay the proceedings
pending the outcome of the State Engineer's action, which
the district court granted. In August 2015, the State
Engineer officially designated Diamond Valley as a CMA
pursuant to his authority under NRS 534.110(7)(a).
determining that the State Engineer's CMA designation was
not going to help its water dispute, Sadler Ranch filed an
amended petition for curtailment. In its amended petition,
Sadler Ranch requested the district court to either (1)
direct the State Engineer to begin curtailment proceedings,
or (2) issue an order curtailing pumping based on the State
Engineer's knowing and intentional refusal to follow
Nevada law. The district court entered an order granting in
part and denying in part the State Engineer's motion to
dismiss, finding that Sadler Ranch's amended petition
pleaded sufficient facts to conclude that the State
Engineer's failure to order curtailment was an abuse of
his discretion. The same day, the district court entered an
alternative writ of mandamus directing the State Engineer to
begin curtailment proceedings or show cause why the State
Engineer has not done so.
August 2016, the State Engineer filed a motion arguing that
Sadler Ranch must provide notice to all Diamond Valley
appropriators who may be affected by the district court's
decision at the upcoming show cause hearing. Eureka County
joined in the motion. Sadler Ranch opposed the motion,
arguing that the upcoming hearing to show cause would not
result in a final order of curtailment that requires notice
and that the State Engineer was the proper party to give
notice to Diamond Valley appropriators because he maintains
the records of water rights holders, In October 2016, the
district court denied the State Engineer's motion. The
district court reasoned that even if it ordered curtailment
at the upcoming show cause hearing, "the 'how'
and 'who' of curtailment could not be decided until a
future proceeding." The district court concluded that
due process was not required until that future proceeding.
The district court also reasoned that any potential
unnotified parties were already adequately represented ...