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Mono County v. Walker River Irrigation District

United States Court of Appeals, Ninth Circuit

May 22, 2018

Mono County, County Counsel, Plaintiff-Appellee,
v.
Walker River Irrigation District; Nevada Department of Wildlife; Fenili Family Trust, c/o Peter Fenili and Veronica Fenili, Trustees; Six N RANCH, INC., c/o Richard and Cynthia Nuti; MICHAEL NUTI; NANCY NUTI; RALPH E. NUTI; MARY E. NUTI; LAWRENCE M. NUTI; LESLIE NUTI; MICA FARMS, LLC, c/o Mike Faretto; JOHN AND LURA WEAVER FAMILY TRUST, c/o Lura Weaver, Trustee; SMITH VALLEY GARAGE, INC., c/o Dan Smith and Shawna Smith; DONALD GIORGI; LORIE MCMAHON; MERLE MCMAHON; CENTENNIAL LIVESTOCK; LYON COUNTY; ANNETT'S MONO VILLAGE; F.I.M. CORPORATION; R.N. FULSTONE COMPANY; JAMES T. FOUSEKIS, Trustee; CHRIS H. GANSBERG, JR.; FAYE E. GANSBERG; TODD GANSBERG; HUNEWILL LAND & LIVESTOCK CO., INC.; DAVID SCEIRINE; PAMELA HAAS; VIRGINIA LAKE MUTUAL WATER COMPANY, Defendants-Appellees. Mineral County, Intervenor-Plaintiff-Appellant, Walker Lake WorkingGroup, Defendant-Appellant, and United States of America, Plaintiff, Walker River PaiuteTribe, Intervenor-Plaintiff,

          D.C. No. 3:73-cv-00128-RCJ-WGC

         Appellants:

          Mineral County, Nevada and Walker Lake Working Group Sean A. Rowe Mineral County District Attorney

          Simeon M. Herskovits Advocates for Community & Environment Attorneys for Mineral County, Nevada and Walker Lake Working Group

         Respondents:

          Lyon County, Nevada et al. (Centennial Livestock, Bridgeport Ranchers and the Schroeder Group) Stephen B. Rye, District Attorney

          Lyon County Attorney for Lyon County

          Jerry M. Snyder Attorney for Lyon County

          Roderick E. Walston Steven G. Martin Best Best & Krieger LLP Attorneys for Centennial Livestock

          Therese A. Ure Schroeder Law Offices, P.C. Attorney for the Schroeder Group Walker River Irrigation District Gordon H. DePaoli Dale E. Ferguson Woodburn and Wedge Attorneys for Walker River Irrigation District Nevada Department of Wildlife

          Adam Paul Laxalt, Attorney General Bryan L. Stockton, Senior Deputy Attorney General Attorneys for Nevada Department of Wildlife County of Mono, California

          Stacey Simon, Acting County Counsel Stephen M. Kerins, Deputy County Counsel Office of the County Counsel Attorneys for County of Mono, California

          Before: A. Wallace Tashima, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.

         ORDER CERTIFYING A QUESTION TO THE SUPREME COURT OF NEVADA

         SUMMARY[*]

         Water Rights

         In an appeal raising issues pertaining to Nevada state water law, the panel certified to the Supreme Court of Nevada the following question:

Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent?

         In light of its decision to certify the issue, the panel withdrew submission of this appeal for decision, and stayed all further proceedings in this case pending final action by the Supreme Court of Nevada, save for any petition for rehearing regarding this order or a concurrently filed memorandum disposition.

          ORDER

          Jay S. Bybee, United States Circuit Judge, Presiding

         Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, we respectfully certify to the Supreme Court of Nevada the question of law set forth in Section III of this order. The answer to the certified question may determine an issue pending before this court and its resolution will have significant implications for Nevada state water law. There is no clearly controlling precedent in the decisions of the Nevada Supreme Court.

         We hold Mineral County's public trust claim for the reallocation of the waters of Walker River and the Takings Clause claim in abeyance pending the result of certification.

         I. Background

         The circumstances here are virtually identical to those that led to the Nevada Supreme Court's decision in Mineral County v. Nevada Department of Conservation & Natural Resources, 20 P.3d 800, 802-05 (Nev. 2001), in which Mineral County and the Walker Lake Working Group (the "Working Group") brought essentially the same suit as this one. In Mineral County, the Nevada Supreme Court ultimately declined to exercise jurisdiction in light of the federal district court's continuing and exclusive ...


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