Over the past few years, several consequential water cases have landed in front of the Nevada Supreme Court. Many of these cases are complex, involving long-running disputes with deep histories, conflicting interests and contested interpretations of a century-old statutory framework.
And they put the judiciary at the forefront of some of Nevada’s most pressing water issues.
Although many water issues are pronounced in Nevada, as the driest state in the country, they are by no means exclusive to it. Across the West, water is over-appropriated — there are more legal rights to use water than there is water to go around. On top of that, the drought, worsened by a changing climate, has triggered further shortages in many watersheds. When conflicts do arise over who gets water, when and on what terms, it’s often left to the courts to step in. Last year, the Supreme Court formed a formal commission to study how Nevada can improve its process for moving water disputes through the courts in a more timely manner. The commission, chaired by Justice James Hardesty, includes district court judges as well as representatives from Native American tribes, urban water utilities, rural counties, irrigation districts, mining and agriculture.
The commission, Hardesty said, has focused on two recommendations: creating an educational curriculum for lower court judges, and piloting a program to assign cases to trained judges.
Exactly how that would work is something the commission is still working on through the end of this year. But in general, trained judges would comprise something of an informal water court, a system whereby water disputes would go before a District Court judge with training in that area.
Last week, The Nevada Independent spoke with Hardesty about the commission’s work and what he has learned presiding over water cases during his nearly two decades as a Supreme Court justice.
Unlike other states, Hardesty said Nevada lacked a curriculum to train District Court judges in hearing water cases: “Throughout the West Coast, states have undertaken studies about the best way to process cases that involve pretty complex areas of law. And from those studies, at least four states have initiated — either by rule or by statute — certain requirements for the education of judges who hear the cases and for the processing of those cases.”
“And this all comes at a time when water resources are becoming scarcer, water rights are over-appropriated and legal battles have occurred between a variety of groups trying to compete for access and priority to water. In our state, there was, at least up until the commission was formed, no formal education for a District Court judge to take that would assist in their review of our water law and the complex hydrological and geological challenges that surround it. The commission was initiated for the purpose of trying to determine how the judiciary should proceed in handling these cases.”
Although water cases are not the largest category of cases on the judiciary’s docket, Hardesty noted that the cases tend to be complex and can have significant implications for how water law is interpreted: “All of these cases have an enormous record of historical information and hydrological information, geological information and engineering studies that make them present as difficult and complex as many of the construction defect cases were in just the last decade and a half. So I thought it was important that our state undertake a study, since most of the law that is being developed is coming out of the judicial branch.”
“We are dealing with a very old water law statute that has not been modified very many times. And as a consequence, there are some ambiguities and some uncertainties, and that instability in the water law is not healthy for an economy, like in our state, that is so dependent on a declining resource.”
Over the past several years, the Supreme Court has issued important rulings in several areas of water law. In 2020, the court weighed in on a dispute over the Walker River and the public trust doctrine, a government’s obligation to protect natural resources for the public and future generations. And this year, in an opinion by Hardesty, the court upheld a locally approved groundwater plan that deviated from the principles that guide Western water law. Both cases were closely watched: “I think those cases and some other recent ones, and some other cases pending, frankly, underscore some of the uncertainties that exist in our water statutes and underscore the conflicting interests that exist over access to water and the utilization of water. They also underscore, I might add, just how voluminous the records are and how long it takes to get these cases to us and to get them decided.”
“I believe that the decisions we have made have provided guidance in those areas. But obviously there are other areas where judicial guidance would be helpful… I wish I had my notes in front of me, but I gave a speech to the Western Regional Water Conference, which is a conference of water law experts in the Western states. And I cataloged the number of Supreme Court decisions that have existed since the adoption of our water statute… Without question, the highest number of Supreme Court decisions on this topic have existed within the last decade as compared to all of the decades preceding 2010…”
“We’re anticipating, as a judicial system, an increase in the number of those discrete but important legal questions. So we need to get our judges ready and prepared to address this, and to address them as timely and as quickly as possible. On the executive branch side, as I mentioned earlier, more money to an important agency is not a legislative change. That’s just a recognition that that agency should have priority because it’s going to be the agency that’s responsible for Nevada’s water.”