State v. Morros
| Decision Date | 21 December 1988 |
| Docket Number | No. 18105,18105 |
| Citation | 766 P.2d 263,104 Nev. 709 |
| Parties | , 19 Envtl. L. Rep. 20,686 The STATE of Nevada; Nevada State Board of Agriculture, Appellants, v. Peter G. MORROS, State Engineer, Nevada Division of Water Resources; United States of America, on Behalf of the Bureau of Land Management, Department of the Interior; Nevada Wildlife Federation and Sierra Club, Respondents. Peter G. MORROS, State Engineer, Nevada Division of Water Resources; United States of America, on Behalf of the Bureau of Land Management, Department of the Interior and the United States Forest Service, Department of Agriculture; Nevada Wildlife Federation and Sierra Club, Cross-Appellants, v. The STATE of Nevada; Nevada State Board of Agriculture; James J. Wright; Smith Brothers' Ox Ranch; Wm. Max Spratling; W.E. Rouse; Warm Creek Ranch; Elko County, a political subdivision of the State of Nevada; Mountain States Legal Foundation; Nevada Woolgrowers Association; Nevada Cattlemen's Association and Humboldt County, a political subdivision of the State of Nevada, Cross-Respondents. |
| Court | Nevada Supreme Court |
Brian McKay, Atty. Gen., and Harry W. Swainston, Deputy Atty. Gen., Carson City, for appellants/cross-respondents State of Nev. and Nevada State Bd. of Agriculture.
Christopher H. Meyer, Boulder, for respondent/cross-appellant Nevada Wildlife Federation.
Hill, Cassas, de Lipkau & Erwin, Reno, for respondent/cross-appellant Peter G. Morros, State Engineer.
Robert L. Klarquist, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for respondent/cross-appellant U.S.
David A. Hornbeck, Reno, for respondents/cross-appellants Nevada Wildlife Federation and Sierra Club.
Laurens H. Silver, San Francisco, Cal., for respondent/cross-appellant Sierra Club.
Jones, Jones, Close & Brown and Charles McCrea, Las Vegas, P. Michael Marfisi, Elko, and Eric Twelker, Denver, Colo., for cross-respondent Mountain States Legal Foundation.
Wilson & Barrows, Elko, for cross-respondents James J. Wright, Smith Bros.' Ox Ranch, Wm. Max Spratling, W.E. Rouse, Warm Creek Ranch, Nevada Woolgrowers Ass'n, and Nevada Cattlemen's Ass'n.
Mark D. Torvinen, Dist. Atty., Elko, for cross-respondent Elko County.
Jack T. Bullock, Dist. Atty., Winnemucca, for cross-respondent Humboldt County.
This is an appeal from an order of the district court affirming the Nevada State Engineer's grant of an application by the United States for a water right and a cross-appeal from the district court's order reversing the state engineer's grant of applications by the United States for certain other water rights.
In a ruling issued on July 26, 1985, the Nevada State Engineer issued a ruling granting a number of appropriative water right applications of the United States Bureau of Land Management (BLM) and overruling protests to those applications. The ruling approved a number of applications to appropriate water for stockwatering and wildlife watering purposes and an application to appropriate the waters of Blue Lake, a natural lake in Humboldt County, Nevada, for public recreation and fishery purposes. On October 4, 1985, the state engineer issued a ruling granting applications of the United States Forest Service (Forest Service) for appropriative water rights for recreation, stockwatering and wildlife watering purposes. The engineer's decision overruled protests to a number of the applications for stock and wildlife watering purposes.
The Attorney General of Nevada, on behalf of the Nevada State Board of Agriculture (Board of Agriculture), and other parties sought judicial review of the state engineer's decisions. In an order entered on February 5, 1987, the district court upheld the state engineer's approval of the Blue Lake application, but reversed his decisions approving the applications to appropriate water for stockwatering and wildlife watering purposes.
The Board of Agriculture appeals the portion of the district court's order affirming the state engineer's grant of the Blue Lake application. The state engineer cross-appeals the portion of the district court's order reversing his grant of the stock and wildlife watering applications. The state engineer is joined by the United States of America, on behalf of the United States Bureau of Land Management and the United States Forest Service, and by the Nevada Wildlife Federation and the Sierra Club. The Board of Agriculture appears as cross-respondent and is joined by several parties.
The Blue Lake application is for a water right to the waters of Blue Lake in situ, in place as a natural body of water. The BLM manages the land surrounding the lake and desires this water right to assure maintenance of the pool of Blue Lake for public recreation and fishery purposes. The Board of Agriculture contends that Nevada water law absolutely requires a physical diversion of water to obtain a water right, and that the district court therefore erred in affirming the state engineer's grant of a right to the water of Blue Lake in situ.
Water appropriation in Nevada is governed by statute. NRS 533.030(1). 1 See generally NRS Chapters 533 and 534. Water may be appropriated only after obtaining a permit from the state engineer. See NRS 533.325. In reviewing the district court's decision we are mindful of the statutory provision that "[t]he decision of the state engineer shall be prima facie correct, and the burden of proof shall be upon the party attacking the same." NRS 533.450(9). We have previously held that "[a]n agency charged with the duty of administering an act is impliedly clothed with power to construe it as a necessary precedent to administrative action" and that "great deference should be given to the agency's interpretation when it is within the language of the statute." Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 446, 530 P.2d 114, 117 (1974). While not controlling, an agency's interpretation of a statute is persuasive. Nevada Power Co. v. Public Serv. Comm'n, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986).
The Board of Agriculture contends that the fact that an application for a permit to appropriate water must contain a description of the proposed location and means of diverting water indicates that a physical diversion is required to appropriate water in Nevada. See NRS 533.335(5) and (6). Respondents argue that under NRS 533.035, which provides that "[b]eneficial use shall be the basis, the measure and the limit of the right to the use of water," beneficial use is the only essential requirement for water appropriation in Nevada. Respondents assert that the contents of an application specified in NRS 533.335(5) and (6) serve only informational purposes.
After carefully considering the parties' arguments and the relevant statutory provisions and authorities, we conclude as follows. The legislature explicitly defined the scope of the right to appropriate water when it enacted NRS 533.035. That provision specifies that beneficial use is "the basis, the measure and the limit of the right to the use of water." NRS 533.335, on the other hand, lists information that must be provided in an application to appropriate water; it is directed to informational purposes. We cannot derive an absolute diversion requirement from NRS 533.335(5) and (6) when no such requirement appears in the NRS 533.035 definition of the scope of the right to appropriate water. Accordingly, we conclude that no absolute diversion requirement precludes the granting of an in situ water right to the water of Blue Lake. The following considerations are relevant to our decision.
The Board of Agriculture cites Prosole v. Steamboat Canal Co., 37 Nev. 154, 140 P. 720 (1914) as authority for the existence of an absolute diversion requirement. In Prosole this court stated that both diversion and application to beneficial use were required to appropriate water. Id. at 160, 140 P. at 722. Prosole, however, involved an appropriation that occurred prior to the enactment of the statutory water law. The Prosole court did not derive these requirements from the statutes. Consequently, Prosole is not good authority for interpreting the statutes on this issue.
This court has defined a vested water right as "a right to use water [that] has become fixed either by actual diversion and application to beneficial use or by appropriation according to the manner provided in the water law...." Application of Filippini, 66 Nev. 17, 22, 202 P.2d 535, 537 (1949) (emphasis added). Filippini indicates that the statutory requirements are distinct from the requirements for water appropriation in effect before enactment of the Nevada Water Law Act in 1913. Furthermore, it is evident that the statutory scheme requiring appropriators to obtain permits from the state engineer superseded a primary purpose of any pre-statutory diversion requirement, providing notice of an appropriation to other water users on a watercourse.
This court opined in Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 172, 295 P. 772, 774 (1931) that beneficial use was the only indispensable requirement to appropriate water, and that any pre-statutory diversion requirement arose from the practical necessity for a diversion in agriculture, mining and similar uses of water. The court stated that under certain conditions it could recognize an appropriation of water without a diversion when no diversion was needed to put the water to beneficial use. Id. at 173, 295 P. at 774-5.
Respondents argue that the lack of a diversion requirement for stockwatering appropriations belies an absolute diversion requirement for water appropriation. The Board of Agriculture responds that stockwatering constitutes a diversion, although not by mechanical means. The Board of Agriculture correctly maintains that stockwatering appropriation without mechanical diversion was established by practical necessity and longstanding custom and is specifically...
To continue reading
Request your trial
- Rubio v. State
-
Mineral Cnty. v. Lyon Cnty.
...deemed a beneficial use. NRS 533.030(2) ; see 1969 Nev. Stat., ch. 111, § 1, at 141 (amending NRS 533.030 ); State v. Morros, 104 Nev. 709, 716-17, 766 P.2d 263, 268 (1988) (citing Hearing on A.B. 278 Before the Senate Federal, State & Local Governments Comm., 55th Leg. Sess. (Nev., March 7......
- State v. Greuber
-
United States v. U.S. Bd. of Water Comm'rs
...regardless of whether the water flows to areas not owned by the rightsholder. NEV. REV. STAT. § 533.040(2) ; State Bd. of Agric. v. Morros , 104 Nev. 709, 766, 766 P.2d 263 (1988).The Water Commissioners and a group of private parties ("the Farmers") objected to both change applications. Th......
-
CHAPTER 9 EXAMINATION OF TITLE TO WESTERN WATER RIGHTS
...District v. Rocky Mountain Power Company, 406 P.2d 798 (Colo. 1965). [150] Colo. Rev. Stat. § 37-92-102. [151] State v. Morros, 766 P.2d 263 (Nev. 1988). [152] Wyo. Stat. § 41-3-1014. [153] Idaho Code § 42-1501, et seq. [154] Utah Code Ann. § 73-3-3(7) . [155] Lilly, "Protecting Stream Flow......
-
CHAPTER 5 FUNDAMENTAL PRINCIPLES OF WATER LAW IN THE WESTERN UNITED STATES
...to a beneficial use. Coffin v. Left Hand Ditch Company, 6 Colo. 443 (1882). a. Physical diversion. b. In-stream flows. State v. Morros, 766 P.2d 263 (Nev. 1988); Board of County Commissioners of the County of Arapahoe v. Collard, 827 P.2d 546 (Colo. 1992); and Nebraska, South Dakota and Uta......
-
Natural resources policy in the Clinton administration: a mid-course evaluation from inside.
...(holding that California's public trust doctrine establishes 1standing for citizen suits challenging water diversions); State v. Morros, 766 P.2d 263 (Nev. 1988) (holding that recreational and wildlife uses of the state's waters in situ are "beneficial uses," and that no diversion is requir......
-
Instream rights & invisible hands: prospects for private instream water rights in the Northwest.
...III.D. (28) Nevada also arguably allows entities other than the state to hold instream rights because of the ruling in State v. Morros, 766 P.2d 263 (Nev. 1988), which affirmed the grant of a water appropriation permit to the United States Bureau of Land Management for public recreation pur......