JASON KING, P.E., NEVADA STATE ENGINEER, DIVISION OF WATER RESOURCES, DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES, Appellant,
RODNEY ST. CLAIR, Respondent.
from a district court order resolving a petition for judicial
review in a water rights matter. Sixth Judicial District
Court, Humboldt County; Steven R. Kosach, Senior Judge.
Paul Laxalt, Attorney General, and Justina A. Caviglia,
Deputy Attorney General, Carson City, for Appellant.
Taggart & Taggart, Ltd., and Paul G. Taggart and Rachel
L. Wise, Carson City, for Respondent.
case concerns respondent Rodney St. Clair's entitlement
to water rights connected to a property that he purchased in
2013. Upon finding an abandoned well on the property, St.
Clair applied to the State Engineer for a permit to
temporarily change the point of diversion of the underground
water source from that well to another location on his
property. To support that application, St. Clair submitted a
Proof of Appropriation, in which he claimed that a prior
owner of the property had established a vested right to the
underground water source. In ruling on St. Clair's
application for a temporary permit, the State Engineer found
that a prior owner had indeed established a right to
appropriate underground water, but a subsequent owner
abandoned that right through years of nonuse. Upon St.
Clair's petition for judicial review, the district court
overruled the State Engineer's decision, finding
insufficient evidence that any owner of the property intended
to abandon the property's water right. We affirm because
nonuse evidence alone was insufficient to support a finding
of an intent to abandon.
AND PROCEDURAL HISTORY
2013, Rodney St. Clair purchased real property in Humboldt
County, Nevada. Upon finding remnants of a well casing on the
property, St. Clair filed two documents with the State
Engineer. The first was a Proof of Appropriation, in which
St. Clair claimed a pre-1939 vested right to appropriate
underground water. The second was an application for a permit
to temporarily change the place of diversion of that water.
support his Proof of Appropriation, St. Clair submitted
documents establishing that the property in question was
first acquired by George Crossley in 1924 pursuant to the
Homestead Act of 1862. Several months later, Crossley deeded
the land, with all appurtenances, to Albert H. Trathen. The
Trathen family maintained ownership over the property until
2013, when St. Clair bought it. All property taxes were paid
from 1924 to the present.
Clair's documentation also included Crossley's 1924
land patent application, in which Crossley indicated that a
drilled well existed on the property. St. Clair submitted
pictures of remnants of the well existing on the property in
2013. By that time, the well had become inoperable, and St.
Clair admitted in his application that the land had not been
irrigated recently and that he did not know when it was last
ruling on St. Clair's application, the State Engineer
found sufficient evidence that Crossley had appropriated
underground water and put it to beneficial use prior to March
25, 1939, thus vesting a pre-statutory right to appropriate
underground water pursuant to NRS 534.100.However, the State
Engineer also found that the water was not used continuously
from 1924 to the present and that there was "no evidence
pointing to a lack of prior owners' intent to
abandon the water right." Based on those findings, the
State Engineer concluded that the vested water right had been
abandoned. The State Engineer therefore denied St.
Clair's application seeking a temporary change of place
of diversion on the basis that no appropriated water was
Clair petitioned for judicial review. While the district
court accepted the State Engineer's findings that the
well was inoperable and that water had not been put to
beneficial use for some time, the court reasoned "that
non-use of the water is not enough to constitute
abandonment" of a water right. The district court noted
that the property contained no improvements inconsistent with
irrigation and the evidence indicated that all taxes and
assessments on the property were paid from Crossley's
time up until the present. Thus, the district court overruled
the State Engineer's abandonment finding as being
unsupported by substantial evidence and ordered the State
Engineer to grant St. Clair's application for a permit to
change the place of diversion. The State Engineer appeals.
this court reviews a district court's order reversing an
agency's decision, we apply the same standard of review
that the lower court applied: we determine whether the
agency's decision was arbitrary or capricious. See
Pyramid Lake Paiute Tribe of Indians v. Washoe Cty,,
112 Nev. 743, 751, 918 P.2d 697, 702 (1996). According to
that standard, factual findings of the State Engineer should
only be overturned if they are not supported by substantial
evidence. See id. Substantial evidence is "that
which a reasonable mind might accept as adequate to support a
conclusion." Backer v. Office of the State
Eng'r, 122 Nev. 1110, 1121, 146 P.3d 793, 800 (2006)
(internal quotation marks omitted). We review purely legal
questions de novo. See In re Nev. State Eng'r Ruling
No. 5823, 128 Nev. 232, 238-39, 277 P.3d 449, 453
State Engineer misapplied Nevada law in finding that nonuse
alone established a prior ...