Lawrence v. Clark County

• Decision Date: 07 July 2011
• Docket Number: No. 54165.,54165.
• Citation: 127 Nev. Adv. Op. 32,254 P.3d 606
• Parties: James R. LAWRENCE, in his Official Capacity as Nevada State Land Registrar, Appellant,v.CLARK COUNTY, Respondent.
• Court: Nevada Supreme Court

254 P.3d 606

127 Nev. Adv. Op. 32

James R. LAWRENCE, in his Official Capacity as Nevada State Land Registrar, Appellant,

v.CLARK COUNTY, Respondent.

No. 54165.

Supreme Court of Nevada.

July 7, 2011.

Catherine Cortez Masto, Attorney General, and K. Kevin Benson, Deputy Attorney General, Carson City, for Appellant.David J. Roger, District Attorney, and Paul D. Johnson, Deputy District Attorney, Clark County, for Respondent.Before the Court En Banc.

OPINION

By the Court, SAITTA, J.:

This appeal concerns whether state-owned land that was once submerged under a waterway can be freely transferred to respondent Clark County, or whether the public trust doctrine prohibits such a transfer. Generally, under the public trust doctrine, a state holds the banks and beds of navigable waterways in trust for the public and subject to restraints on alienability. Although the public trust doctrine has never expressly been adopted in Nevada, this court has previously applied some of its tenets and its existence is implicit in Nevada law.

Thus, in this opinion, we clarify Nevada's public trust doctrine jurisprudence by expressly adopting the doctrine and determining its application in Nevada, given the public's interest in Nevada's waters and the law's acknowledgment of that interest. In so doing, after setting forth the facts and procedural history, we will discuss the development of the public trust doctrine in general, and then its development in Nevada specifically. Next, we will set forth Nevada's public trust doctrine framework, under which we conclude that whether the formerly submerged land is alienable, such that it can be transferred to Clark County, turns on the unanswered questions of whether the stretch of water that once covered the land was navigable at the time of Nevada's statehood, whether the land became dry by reliction or by avulsion, and whether transferring the land contravenes the public trust. We thus reverse the district court judgment underlying this appeal, which determined that the disputed land is transferable to Clark County, and we remand this matter for determinations as to whether the disputed land was submerged beneath navigable waters at the time of Nevada's statehood, how it became dry land, and, if necessary, whether its transfer accords with the public's interest in it.

FACTS AND PROCEDURAL HISTORY

The Nevada Legislature originally enacted the Fort Mohave Valley Development Law (FMVDL) to allow the Colorado River Commission (CRC), an executive state agency, to acquire federal land in the Fort Mohave Valley near Laughlin, within Clark County limits. The FMVDL was recently amended to require the CRC to transfer its Fort Mohave Valley land to Clark County. To effectuate the transfer, the Nevada State Land Registrar, appellant James R. Lawrence, deeded to Clark County the CRC's interest in the Fort Mohave Valley land, except for approximately 330 acres of land adjacent to the Colorado River that he believed was nontransferable under the public trust doctrine, pursuant to which the state must hold the beds and banks of navigable waterways in trust for the public.

In response, Clark County filed a complaint for declaratory relief in district court, seeking an order declaring that Lawrence was required by legislative mandate to transfer the land to Clark County. Lawrence answered the complaint and filed a counterclaim for declaratory relief, seeking a declaration that the disputed land was subject to the public trust doctrine and therefore was not transferable. Clark County filed its answer and a motion for judgment on the pleadings, arguing, among other things, that the Legislature had already determined that the transfer was in the public's interest and that nothing in the federal or state constitutions prohibited the transfer.

Following a hearing on Clark County's motion for judgment on the pleadings, during which the parties debated whether the public trust doctrine applies in Nevada and, if it does, whether the disputed land fell within its purview, the district court determined that the disputed land was not subject to the public trust doctrine because it was not within the current channel of the Colorado River. The district court, therefore, granted Clark County's motion and ordered Lawrence to deed the disputed land to Clark County within 30 days. Lawrence now appeals. The district court granted a stay of its judgment pending the resolution of this appeal.

DISCUSSION

I. Standard of review

Judgment on the pleadings is proper when, as determined from the pleadings, the material facts are not in dispute and the moving party is entitled to judgment as a matter of law. Bonicamp v. Vazquez, 120 Nev. 377, 379, 91 P.3d 584, 585 (2004). We review questions of law, including questions of constitutional interpretation and statutory construction, de novo. See ASAP Storage, Inc. v. City of Sparks, 123 Nev. 639, 644–45, 173 P.3d 734, 738 (2007); City of Reno v. Reno Gazette–Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).

II. The public trust doctrine's emergence and development

As noted, whether the disputed land is transferable turns on whether it is subject to the public trust doctrine and, if so, how that doctrine applies in Nevada. To answer those questions, we begin with a discussion of the public trust doctrine's origins and development.

A. Origins

The public trust doctrine is an ancient principle thought to be traceable to Roman law and the works of Emperor Justinian. See State v. Sorensen, 436 N.W.2d 358, 361 (Iowa 1989). Justinian derived the doctrine from the principle that the public possesses inviolable rights to certain natural resources, noting that “[b]y the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea.” The Institutes of Justinian, Lib. II, Tit. I, § 1 (Thomas Collett Sandars trans. 5th London ed. 1876). He also stated that “rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.” Id. § 2.

The doctrine was thereafter adopted by the common law courts of England, which espoused the similar principle that “title in the soil of the sea, or of arms of the sea, below ordinary high-water mark, is in the King” and that such title “is held subject to the public right.” Shively v. Bowlby, 152 U.S. 1, 13, 14 S.Ct. 548, 38 L.Ed. 331 (1894).

B. The development of the public trust doctrine in the United States

Courts in this country have readily embraced the public trust doctrine. In 1821, in the first notable American case to express public trust principles, the Supreme Court of New Jersey observed that citizens have a common right to sovereign-controlled waterways:

The sovereign power itself ... cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right. It would be a grievance which never could be long borne by a free people.

Arnold v. Mundy, 6 N.J.L. 1, 78 (N.J.1821).

Thereafter, the United States Supreme Court similarly recognized that “when the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use.” Martin et al. v. Waddell, 41 U.S. 367, 410, 16 Pet. 367, 10 L.Ed. 997 (1842).

Fifty years later, in what has become the seminal public trust doctrine case, the Supreme Court decided Illinois Central Railroad v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). In Illinois Central the Court noted that because the State of Illinois was admitted to the United States on “equal footing” with the original 13 colonies, it, like the colonies, was granted title to the navigable waters and the lands underneath them. Id. at 434, 13 S.Ct. 110. For Illinois, that meant that upon its admission, it held title to its portion of the waters of and lands beneath Lake Michigan. Id. at 434, 452, 13 S.Ct. 110. However, the waters and lands underneath Lake Michigan were not freely alienable by the State of Illinois—its title to those areas was “different in character from that which the State holds in lands intended for sale.” Id. at 452, 13 S.Ct. 110. More specifically, it possessed only “title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.” Id. As a result, the Court concluded that the Illinois Legislature's attempted relinquishment of such trust property to the Illinois Central Railroad

is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public.... The State can no more abdicate its trust over property in which the whole people are interested than it can abdicate its police powers in the administration of government and the preservation of the peace.

Id. at 453, 13 S.Ct. 110.

While the Court noted that such lands need not, under all circumstances, be perpetually held in trust, it recognized that in effecting transfers, the public interest is always paramount, providing that “[t]he control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.” Id.

C. Nevada's embrace of public trust doctrine principles

Although Nevada has never expressly adopted the public trust doctrine, our caselaw has adhered to several principles relevant to the existence of the public trust doctrine in this state. The following three cases illustrate that, while the doctrine was not formally adopted, this state has previously embraced...