United States v. State Engineer

• Decision Date: 24 July 2001
• Docket Number: No. 32740.,32740.
• Citation: 117 Nev. 585,27 P.3d 51
• Parties: UNITED STATES of America, Appellant, v. STATE ENGINEER, State of Nevada, Respondent.
• Court: Nevada Supreme Court

27 P.3d 51

117 Nev. 585

UNITED STATES of America, Appellant, v. STATE ENGINEER, State of Nevada, Respondent.

No. 32740.

Supreme Court of Nevada.

July 24, 2001.

United States Department of Justice, Environment and Natural Resources Division, and Andrew C. Mergen, and Stephen G. Bartell, Washington, D.C., for Appellant.

Frankie Sue Del Papa, Attorney General, Marta A. Adams, Deputy Attorney General, Carson City, for Respondent.

Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Karen A. Peterson, Carson City, for Amici Curiae Eureka County and Humboldt River Basin Water Authority.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

This appeal requires us to examine the scope and constitutionality of NRS 533.503, which regulates the issuance of state water appropriation permits that allow livestock to be watered on public lands. Respondent, State Engineer, State of Nevada (State Engineer), denied nine applications filed by the United States Department of the Interior, Bureau of Land Management (BLM), for stockwater permits on public lands in Douglas County, Nevada. The State Engineer issued the denials after finding that the BLM was not a qualified applicant for stockwater permits, because it could not establish that it was "legally entitled to place the livestock on the public lands" pursuant to NRS 533.503. The BLM petitioned the district court for judicial review of the State Engineer's ruling. The district court denied the petition for judicial review and upheld the ruling of the State Engineer.

On appeal, the BLM contends that the plain language of NRS 533.503 authorizes the State Engineer to issue stockwater permits to the BLM. In the alternative, the BLM contends that if NRS 533.503 does not authorize the issuance of stockwater permits to the BLM, the statute is unconstitutional. We conclude that NRS 533.503 is unambiguous and that the plain language of the statute does not prohibit the BLM from receiving stockwater permits in the name of the United States. Thus, the statute does not violate the federal or state constitutions. We therefore reverse the order of the district court and remand the matter for the district court to enter an order granting the petition for judicial review.

FACTS

On April 7, 1997, the State Engineer issued Ruling No. 4519, denying nine applications filed by the BLM for permits to appropriate public waters in Douglas County, Nevada. These applications were filed between 1991 and 1994. The BLM also has approximately ninety additional stockwater permit applications pending with the Office of the State Engineer. The nine applications sought to appropriate water from Red Canyon Springs, 5 O'clock Spring, Pinyon Spring, Buena Suerte Spring, and Winter's Mine Springs. The springs are located on BLM managed public lands within Douglas County, Nevada. The applications indicated that the water would be primarily appropriated for stockwatering purposes, with a minor amount of water to be used for the secondary purposes of wildlife and recreational use. The BLM filed the applications in the name of the appellant, United States.

In the applications, the BLM does not assert that it owns, or has a proprietary interest in any livestock that would be benefited by a stockwatering permit. The applications state that the BLM desires to appropriate the water for purposes of granting water rights to individuals seeking to obtain grazing permits from the BLM. If granted, the BLM, rather than the State of Nevada, would have the ultimate say in the distribution and use of the stockwater rights amongst competing interests in the livestock industry.

The State Engineer found that the sources of water sought to be appropriated by the BLM would not interfere with existing water rights because they are isolated springs and not tributaries to other surface water sources on which there are existing water rights. The State Engineer concluded, however, that the BLM was not a qualified applicant for a stockwater permit. The State Engineer's determination was based upon an opinion issued by the Nevada Attorney General's office, dated February 11, 1997, which concluded that NRS 533.503 prohibits the State Engineer from issuing stockwater permits to the BLM, because the BLM is not a person who is authorized to graze livestock upon public lands. 97-05 Op. Att'y Gen. 27-64 (1997).

The BLM petitioned the district court for judicial review of the State Engineer's denial of its permit applications. Following a hearing, the district court denied the petition and affirmed the State Engineer's decision. The BLM timely appealed.¹

DISCUSSION

The BLM contends that the plain language of NRS 533.503 authorizes the State Engineer to issue stockwater permits to the United States in its own name and that the State Engineer should have granted the nine applications in question. NRS 533.503 provides that:

1. The state engineer shall not issue:

(a) A permit to appropriate water for the purpose of watering livestock on public lands unless the applicant for the permit is legally entitled to place the livestock on the public lands for which the permit is sought.

(b) A certificate of appropriation based upon a permit to appropriate water for the purpose of watering livestock on public lands unless the person who makes satisfactory proof that the water has been beneficially used is legally entitled to place on the land the livestock which have been watered pursuant to the permit.

2. This section must not be construed to impair the vested right of any person to the use of water for the purpose of watering livestock or to prevent any transfer of ownership of a water right for the purpose of watering livestock.

(Emphasis added.)

Specifically, the BLM contends that the phrase "legally entitled" is not ambiguous and means that either the landowner, or a person with the landowner's permission to use the land, is "legally entitled" to place livestock on the land. According to the BLM, the United States may be issued stockwater permits because, as the landowner, it is "legally entitled" to place livestock on the lands for which the permit is sought.

To the contrary, the State Engineer contends that "legally entitled to place the livestock on the public lands for which the permit is sought" means that the applicant must have a legal right to place livestock on public lands. Livestock cannot be placed upon public lands without a grazing permit or lease. Thus, the State Engineer reasons that since the United States, through the BLM, does not possess either a grazing permit or lease, it cannot qualify for a stockwater permit.

Statutory construction is a question of law which this court reviews de novo. See Associated Bldrs. v. So. Nev. Water Auth., 115 Nev. 151, 156, 979 P.2d 224, 227 (1999)

. However, the appropriation of water in Nevada is governed by statute, and the State Engineer is authorized to regulate water appropriations. See NRS 533.030(1); NRS 533.370(3). Because the State Engineer is charged with administering NRS 533.503, that office has the implied power to construe the statute. "`"[G]reat deference should be given to the [State Engineer's] interpretation when it is within the language of the statute."'" Pyramid Lake Paiute Tribe v. Washoe Co., 112 Nev. 743, 747-48, 918 P.2d 697, 700 (1996) (quoting State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988) (citations omitted)). Therefore, while the interpretation of the State Engineer is not controlling, its decision shall be presumed correct, and the party challenging the decision has the burden of proving error. See NRS 533.450(9).

The United States asserts that the State Engineer erred because he went beyond the plain meaning of the statute in construing the statute. We agree. While it is true that an administrative agency's interpretation of its own regulation or statute is entitled to consideration and respect-especially where, as here, the State Engineer has a special familiarity and expertise with water rights issues-it is well established that "[w]hen the language of a statute is plain and unambiguous, a court should give that language its ordinary meaning and not go beyond it." City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989). "[A]n [administrative] agency's interpretation of a regulation or statute does not control if an alternative reading is compelled by the plain language of the provision." Southern Cal. Edison, 102 Cal. Rptr.2d at 698 (citations omitted); see also Neer v. Oklahoma Tax Comm'n, 982 P.2d 1071, 1078 (Okla.1999)

(administrative construction cannot override plain statutory language).

NRS 533.503 is not ambiguous. To be considered ambiguous, a statute must be capable of two or more reasonable but inconsistent interpretations. Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519, 521 (1998). The BLM contends that the phrase "legally entitled to place the livestock on the public lands" means that an applicant for a stockwatering permit has a legal right to use the public land for grazing. The State Engineer contends that the statute is capable of being interpreted in a different fashion. The State Engineer argues that this phrase means that an applicant must have a BLM grazing permit or lease. The State Engineer then asserts that since the BLM does not issue permits to itself, it cannot be a qualified applicant and is not entitled to the livestock watering permits. To say that the United States, the owner of the public land, must issue itself a permit or lease to graze livestock upon the land that it owns is an illogical and unreasonable construction of the statutory language. Therefore, NRS 533.503 is not capable of two or more reasonable interpretations. A plain reading of the statute indicates it requires an applicant to have some legal authority to use the public land for grazing purposes and nothing else. The State Engineer exceeded the scope of his authority by ignoring the plain...