Walker Lake advocates filed briefs this spring with the U.S. Ninth Circuit Court of Appeals challenging District Court decisions that effectively dismissed Mineral County’s claims in United States of America v. Walker River Irrigation District to apply the Public Trust Doctrine to Walker Lake and provide minimum flows to save the shrinking lake.
Walker Lake is an oasis in the desert that historically has supported a fresh-water ecosystem and was once home to world-class fishing. However, the lake no longer supports threatened Lahontan cutthroat trout due to upstream water diversions for agriculture. Lack of water has caused dissolved salts to rise to a level inhospitable to the lake’s cornerstone species, tui chub, a main source of food for migratory birds, including American white pelicans, common loons, snowy plovers, long-billed curlews, grebes, avocets and many others.
Walker Lake supporters have challenged the use of water in the Walker River Basin for decades seeking dedicated water rights to conserve the lake for its environmental, aesthetic, historical, cultural and recreational values. Lake supporters were not dismayed by the District Court rulings in May and took their claims to the U.S. Court of Appeals.
The first briefing was submitted to the appeals court at the end of March on behalf of appellants Walker Lake Working Group and Mineral County. This briefing provides the appeals court with evidence that refutes the District Court’s remand of Order 1340 in United States v. Walker River Irrigation District. Order 1340 concerns the change of-use applications by National Fish and Wildlife Foundation and Walker River Irrigation District. Both applications seek to change the purpose of water use from agricultural to environmental/conservation to benefit Walker Lake. Both applications had previously been approved by the state governing bodies in their respective jurisdictions: the Nevada State Engineer and the California State Water Resources Control Board. The District Court is remanded the applications back to same governing bodies.
“The district court’s May 28th, 2015, order (Order 1340) misconstrues fundamental provisions of water law in California and Nevada to reach several conclusions that clearly are contrary to law,” said Advocates for Community and Environment (ACE), attorneys for Walker Lake in the briefing. “Indeed, the order is contrary to even the most basic principle of prior appropriation, first-in-time, first-in-right.”
The second briefing filed mid-April disputes the District Court ruling in Docket No. 814 to dismiss all petitions in United States v. Walker River Irrigation District, in particular the request to apply the Public Trust Doctrine to Walker Lake. The principle issues on appeal question whether the District Court erred in its rulings including:
• Mineral County’s and all political subdivisions lack of standing to bring such claims.
• The public trust does not apply, because Walker Lake and Walker River are non-navigable waters.
• Federal law does not require the court to apply the Public Trust Doctrine.
• Enforcement of the Public Trust Doctrine is purely political, non-justiciable.
• The Public Trust Doctrine can only be applied to the potential grant of new water rights and cannot be applied retrospectively to existing water rights.
• Enforcing the public trust claim would constitute an unconstitutional taking.
• Walker Lake is not part of the Walker River Basin, therefore no water rights can be exported from the Walker River system for use in Walker Lake under the Walker River Decree.
The second briefing shows multiple reasons and case law why the above statements are untrue. In the appeal’s Opening Brief of Appellants Mineral County and Walker Lake Working Group, ACE attorneys for Walker Lake, said of the ruling regarding Walker Lake not being part of the Walker River Basin:
“This ruling contradicts the understanding of the district court and (the appeals) court from the time the decree was entered, is at odds with sound principles of construction of judicial decrees, and is inconsistent with applicable scientific and lay definitions of a river basin, not to mention common sense.”
Other stakeholders challenging the District Court rulings made May 28, 2015 in United States v. Walker River Irrigation District in five separate appeals include:
• National Fish and Wildlife Foundation
• Walker River Irrigation District
• Nevada Department of Wildlife
• United States
• Walker River Paiutes
• Nevada State Engineer
Ongoing settlement negotiation meetings with these claimants and others took a back burner recently because of the focus to appeal District Court rulings that were inconsistent with long-belabored stakeholder agreements prior to requests for formal court implementation.
After one settlement meeting early this year, settlement work was suspended in earnest to allow interested stakeholders time to prepare their responses to the U.S. Court of Appeals for the Ninth Circuit.
However, much of the work produced for the appeals process will benefit the settlement project by identifying key issues that need to be met before a settlement can be finalized. Stakeholders are intent on resuming regular, scheduled settlement meetings once appeals court briefing responsibilities are met.