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February 24, 2021  |  Written by Andrew M. Hitchings

Ninth Circuit Court of Appeals Remands Walker River Decree Public Trust Claims for Determination of Alternative Remedies

On January 28, 2021, the Ninth Circuit Court of Appeals (Ninth Circuit) issued a decision addressing issues related to the extent to which the public trust doctrine may be used to safeguard water resources covered under the 1936 Walker River Decree (Decree).  The litigation arose from contested water rights in the Walker River Basin, which originates in the Sierra Nevada mountains in California and ends at Walker Lake in Mineral County, Nevada.  In response to the declining water quality of Walker Lake, Mineral County moved to intervene in ongoing litigation in federal district court over the Decree, which adjudicated rights in the Walker River Basin.  Mineral County sought to modify the Decree to ensure minimum flows into Walker Lake under the public trust doctrine.

The U.S. District Court for the District of Nevada dismissed the complaint in intervention for lack of standing.  Mineral County appealed to the Ninth Circuit, which found standing as to the public trust claim, but certified two questions to the Nevada Supreme Court, asking whether:  (1) the public trust doctrine applied to prior appropriative water rights; and (2) reallocation is a proper remedy to cure a violation of the public trust.

The Nevada Supreme Court endorsed the public trust doctrine, holding that the doctrine applies to prior appropriated rights to the extent that it is consistent with other state water law.  To this end, Nevada’s statutory scheme for water rights charges the State Engineer with taking public interest into account while performing the duty of assessing water rights applications.  However, the Nevada Supreme Court concluded that the remedy sought by Mineral County of reallocating prior appropriated water rights conflicted with state water law, prohibiting such an action in the absence of abandonment, forfeiture, or other statutory provisions.  More information on the Nevada Supreme Court Decision is available here.

With the Nevada Supreme Court’s clarification of state law complete, the Ninth Circuit addressed two questions posed by Mineral County: (1) whether the Decree violates the public trust doctrine; and (2) whether Mineral County can seek alternative remedies to reallocation.

The Ninth Circuit rejected as untimely the argument that the Decree violates the public trust doctrine, pointing to Nevada statutes requiring any challenge to the decree to be brought within three years of the final decree.  Second, the Ninth Circuit held that Mineral County’s public trust claim is still viable to the extent that Mineral County will seek alternative remedies to reallocation.

“The Ninth Circuit’s decision is important for defining the limits of available remedies under the public trust doctrine as applied to pre-existing water rights in Nevada.  While reallocation of confirmed rights is not an allowable remedy, the Ninth Circuit’s remand suggests that other avenues for relief may be available.” Andrew M. Hitchings, Shareholder

Finding that the District Court had a continuing duty to manage the resources involved in the Decree, the Ninth Circuit remanded the case to determine the following issues:  (1) whether the continuing duty to maintain public trust uses of Walker Lake has been violated; (2) what level of average yearly minimum flows must reach Walker Lake to maintain public trust values; and (3) if a violation has occurred, what a proper remedy may be.  Mineral County proposed several alternative remedies including:  (1) change in management of surplus waters in wet years and outside of irrigation season; (2) efficiency improvements; (3) curtailment of junior water rights; (4) state issued funding mandates to fulfill the public trust duty as to Walker Lake; and (5) mandating the creation of a basin management plan.  The District Court did not consider the viability of these remedies in the initial dismissal of the claim.

The resolution of this case will be important for defining the scope of public trust issues especially in relation to water right holders in Nevada.

The complete docket for United States of America, et al., v. Walker River Irrigation District, et al., is available here.

For additional information on this case, and public trust issues, please contact Palmer Hilton at or (916) 446-7979.

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