131 Nev., Advance Opinion -/i3
IN THE SUPREME COURT OF THE STATE OF NEVADA
PATTI E. BENSON, No. 65833
Appellant,
vs.
STATE ENGINEER OF THE STATE OF FLED
NEVADA, OFFICE OF THE STATE
SEP 2k MI5
ENGINEER; AND DIVISION OF
T - 1:C E K !!'KEtif.1-4
WATER RESOURCES, DEPARTMENT CLC C`4.1 T
OF CONSERVATION AND NATURAL BY •-•
■
c-Lt Zit
RESOURCES,
Respondents.
Appeal from a district court order dismissing a petition for
judicial review in a water law matter. Seventh Judicial District Court,
Eureka County; Gary Fairman, Judge.
Affirmed.
Schroeder Law Offices, P.C., and Laura A. Schroeder, Therese A. Ure, and
Matthew J. Curti, Reno,
for Appellant.
Adam Paul Laxalt, Attorney General, and Jerry M. Snyder, Senior Deputy
Attorney General, Carson City,
for Respondents.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, CHERRY, J.:
The question presented in this appeal is whether a party
aggrieved by the cancellation of her water permit must exhaust
administrative remedies with the State Engineer when the State Engineer
is not statutorily authorized to provide the party's preferred remedy. We
hold that NRS 533.395(2) requires a party aggrieved by the cancellation of
a water permit to exhaust all available administrative remedies before
seeking judicial review, even when the remedy that the State Engineer is
authorized to provide is not the remedy that the party seeks.
FACTS AND PROCEDURAL HISTORY
Joseph Rand purchased property in Eureka County, which he
used for farming. A water permit with an appropriation date of 1960
benefited the property. Rand died on October 17, 2008, survived by his
wife, Ellen. That same month, the Joseph L. and Ellen M. Rand
Revocable Living Trust was created, and the trust managed the farming
property. An agent, presumably acting on behalf of the trust, 1 applied for
a water right permit at a new well head location with the State Engineer
1 The application for permission to change point of diversion lists the
applicant as Joseph L. Rand and Ellen M. Rand. The underlying petition
for judicial review also states that the agent was acting on behalf of
Joseph L. Rand and Ellen M. Rand. However, as Joseph Rand was
deceased when the application was filed and the trust was managing the
farming property, we presume that the agent was acting on the trust's
behalf.
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on December 10, 2008. According to the application, the agent intended to
divert water from an underground source via a newly drilled well. The
new water rights were necessary because the previous well did not
produce sufficient water. The State Engineer conditionally authorized the
new permit to appropriate 632 acre-feet annually for irrigation and
domestic use from the Diamond Valley Hydrographic Basin. The permit
required proof of completion of the new well, proof of beneficial use of the
water, and a supporting map to be filed with the State Engineer within
one year. The permit reflected the original appropriation date of 1960.
Due to financial constraints, the trust was unable to finish
drilling the well by 2010. Consequently, Ellen, on behalf of the trust,
sought an extension to complete the work and file the requisite proof with
the State Engineer. The State Engineer granted the trust's request and
extended the time for completion by one year. The State Engineer granted
the same request again in 2011 and 2012.
Ellen died on March 31, 2013. Following her death, Patti
Benson, Joseph and Ellen's daughter, inherited the farming property and
water rights. On July 11, 2013, the State Engineer sent a "final notice" to
the trust reminding it and the Rands that they were required to file proof
of completion, proof of beneficial use, and a map. The notice stated that if
they did not file the required documents or request an extension within 30
days, the permit would be canceled.
Benson recorded the quitclaim deed with the Eureka County
recorder's office on July 24, 2013. The record does not reflect that Benson
ever filed a report of conveyance with the State Engineer, as required by
MRS 533.384. On September 11, 2013; the State Engineer canceled the
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water permit for failure to comply with its terms and sent notice to the
Rands. The notice also advised that, within 60 days, the cancellation
could be appealed by filing a written request for a review at a public
hearing before the State Engineer.
Instead of requesting administrative review, Benson filed the
underlying petition for judicial review in the district court. Her petition
sought an order vacating the State Engineer's decision to cancel the
permit. In her petition, Benson argued that the State Engineer did not
allow her enough time to file a report of conveyance under NRS 533.384. 2
Because notice of the potential cancellation of the water permit was not
provided to her as the owner of the water rights, Benson alleged, the State
Engineer's cancellation of the permit was erroneous. 3 Further, Benson
claimed that the record evidence, which she was barred from presenting to
the State Engineer in a contested hearing prior to cancellation, proved
that the State Engineer's decision was clearly erroneous.
The State filed a motion to dismiss Benson's petition, arguing
that NRS 533.395(4) required the district court to dismiss Benson's
petition for failure to exhaust administrative remedies and seek review of
the permit cancellation at a public hearing before the State Engineer. In
2 NRS 533.384 does not specify a time frame following the
conveyance in which the report must be filed with the State Engineer.
3 However, Benson conceded during oral argument before this court
that she had actual notice of the pending cancellation before expiration of
the 30-day period to seek an extension of time to file proof of compliance
with the permit's conditions. She also conceded during oral argument
before this court that she had actual notice of the canceled permit before
expiration of the 60-day period to request administrative review.
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response, Benson claimed that she properly petitioned for judicial review
under NRS 533.450 and was not required to pursue administrative review
as it would have been in vain and futile. Benson contended that even if
she had petitioned the State Engineer for administrative review of the
cancellation decision and the State Engineer issued a decision rescinding
the cancellation, that decision would not provide her with an adequate
remedy. Benson argued that pursuant to NRS 533.395(3), the State
Engineer would be required to modify the permit's original 1960
appropriation date with an appropriation date reflecting the date of her
2013 administrative review. Benson claimed the modified appropriation
date would thus affect her substantive rights in terms of priority to the
water. She asserted that because she would lose her 1960 appropriation
date and be required to seek judicial review regardless of the results from
an administrative hearing, administrative review would have been futile.
The district court granted the State Engineer's motion to
dismiss Benson's petition. In its order, the district court said that this
court has not defined futile in the context of exhausting administrative
remedies and that it was persuaded by caselaw from the California Court
of Appeal. The district court adopted the California Court of Appeal's rule
from Doyle v. City of Chino, which requires exhaustion of administrative
procedures "unless the petitioner can positively state that the commission
has declared what its ruling will be in a particular case." 172 Cal. Rptr.
844, 849 (Ct. App. 1981) (internal quotation omitted). Accordingly, the
court decided that Benson had not proven that administrative review
would have been futile because she did not positively state what the State
Engineer's ruling would have been had she sought administrative review.
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The district court further noted that Benson could have
received some relief through reinstatement of her permit with a 2013
appropriation date following administrative review but acknowledged that
the State Engineer is not statutorily authorized to reinstate the permit
with the original appropriation date. The court also noted that by seeking
judicial review before exhausting available administrative remedies,
Benson undermined policy considerations, including the following:
(1) having the matter heard by the State Engineer, who possesses
expertise in water rights; (2) allowing development of a factual record
necessary for meaningful judicial review; (3) providing an efficient process
for the State Engineer to correct its own mistake; (4) encouraging
adherence to administrative procedures before resort to the courts; and (5)
preventing premature interruption of the administrative process. This
appeal followed.
DISCUSSION
The issue presented is whether a permittee who is aggrieved
by the State Engineer's decision to cancel her water permit is required to
exhaust available administrative remedies before seeking judicial review.
Here, we review de novo the district court's order, which dismissed
Benson's petition for judicial review for lack of jurisdiction due to Benson's
failure to exhaust the statutorily required administrative remedies. See
Webb v. Shull, 128 Nev., Adv. Op. 8, 270 P.3d 1266, 1268 (2012) (applying
de novo review to questions of statutory interpretation); Ogawa v. Ogawa,
125 Nev. 660, 667,
221 P.3d 699, 704 (2009) (applying de novo review to an
order granting a motion to dismiss for lack of subject matter jurisdiction).
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Statutory procedures applicable to the cancellation of water permits
NRS 533.410 requires the Division of Water Resources,
through the State Engineer, to cancel a landowner's water permit when
the landowner fails to comply with its terms. If a permit is canceled, the
permit holder may, within 60 days of the cancellation, file a written
request for review at a public hearing before the State Engineer. NRS
533.395(2), The State Engineer, after considering evidence at the hearing,
may "affirm, modify or rescind the cancellation." Id. When the State
Engineer modifies or rescinds a canceled permit, the original
appropriation date (or "priority date," as Benson refers to it) is "vacated
and replaced by the date of the filing of the written petition with the State
Engineer." NRS 533.395(3). Thus, Nevada law does not authorize the
State Engineer to modify or reinstate a canceled permit with its original
appropriation date. See id.
Further, "[t]he cancellation of a permit may not be reviewed or
be the subject of any judicial proceedings unless a written petition for
review has been filed and the cancellation has been affirmed, modified or
rescinded" by the State Engineer. NRS 533.395(4) (emphasis added); NRS
533.450 (providing that a person aggrieved by a State Engineer's decision
may seek judicial review); see Howell v. Ricci, 124 Nev. 1222, 1228,
197
P.3d 1044, 1048 (2008) (explaining that when the State Engineer renders
a final, written determination that affects a person's interests that relate
to the administration of determined rights, that decision may be properly
challenged through a petition for judicial review).
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Exhaustion of administrative remedies is required before seeking judicial
review of a State Engineer's decision
"Ordinarily, before availing oneself of district court relief from
an agency decision, one must first exhaust available administrative
remedies." Malecon Tobacco, LLC v. State ex rel. Dep't of Taxation, 118
Nev. 837, 839,
59 P.3d 474, 475-76 (2002). This court has held that
exhaustion is not required when administrative proceedings are "vain and
futile" or when the "agency clearly lacks jurisdiction." Engelmann v.
Westergard, 98 Nev. 348, 353,
647 P.2d 385, 389 (1982). Thus, a party
may proceed directly to judicial review when the administrative
proceedings would be futile. State, Nev. Dep't of Taxation v. Scotsman
Mfg. Co., 109 Nev. 252, 255,
849 P.2d 317, 319 (1993) (affirming a district
court order granting summary judgment to a taxpayer seeking declaratory
relief).
In Scotsman Manufacturing, Scotsman moved the district
court to order the State to refund sales tax payments that it made under
protest and that this court determined it was not required to pay. Id. at
253,
849 P.2d at 318. The district court ordered the State to refund the
paid taxes plus interest. Id. On appeal, the State argued that the district
court did not have jurisdiction to order the refund because NRS 374.640(1)
and NRS 374.680 required Scotsman to seek a refund from the
Department of Taxation within three years of making the payments.
Id. at 254,
849 P.2d at 319. We explained that although Nevada
law has a statutory procedure that requires the exhaustion of
administrative remedies before petitioning for judicial review, "[u]nder
certain circumstances, . . . the district court's jurisdiction attaches
notwithstanding a party's failure to exhaust its administrative remedies."
Id. at 254-55,
849 P.2d at 319. A circumstance that excuses the
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exhaustion doctrine, we determined, is "where initiation of administrative
proceedings would be futile." Id. at 255,
849 P.2d at 319. Based on the
three-year statute of limitations, "Whe statutory procedure offer[ed]
Scotsman no relief at all." Id. at 255,
849 P.2d at 320. Thus, when the
facts of a particular case prove that the agency is statutorily precluded
from granting a party any relief at all, administrative proceedings are
futile. See id.
In the instant case, Benson argues that, pursuant to NRS
533.395(3), petitioning for review with the State Engineer would be futile
because even if the cancellation of her permit was rescinded, the State
Engineer would be required to reinstate the water permit with a priority
date of 2013, instead of its original priority date of 1960. Because the
Diamond Valley Hydrographic Basin has been depleted, the State
Engineer has denied all applications to appropriate groundwater for
irrigation purposes since 1979. See State Engineer's Order No. 1226 (Mar.
26, 2013). Accordingly, Benson asserts administrative review was futile
because she could only receive a permit with a 2013 priority date, which
would still not allow her to appropriate any water and would thus amount
to nothing more than a piece of paper.
Benson relies upon our holding in Englemann v. Westergard,
98 Nev. 348,
647 P.2d 385 (1982), to support her contention that she was
not required to seek administrative review. But the facts of this case are
distinguishable from Englemann, and thus its holding does not apply here.
In Englemann, the State Engineer canceled Englemann's water permit
due to his failure to comply with the permit's terms, but Englemann was
unaware of the cancellation for over two years because he did not receive
the State Engineer's notice that "his permits ... were in poor standing and
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subject to cancellation." 4 Id. at 351,
647 P.2d at 387. A month after
learning of the cancellation, and approximately two years and two months
after his permits were canceled, Englemann filed a petition for judicial
review, which the district court dismissed. Id. On appeal, this court
concluded that the district court erred when it failed to exercise subject
matter jurisdiction. Id. We explained:
We have held that where an aggrieved party had
no actual knowledge that his permits were
cancelled until after the expiration of the 30-day
period within which to comply with the statute, it
was not the intent of the Legislature to preclude
judicial review of such an order or decision.
Id. at 352,
647 P.2d at 388 (emphasis added). We concluded that
Englemann was not required to exhaust the administrative remedies
because his request for administrative review would have been "untimely
and futile." Id. at 353,
647 P.2d at 389.
Unlike the petitioners in Englemann, Benson conceded that
she received actual notice of the pending cancellation before the expiration
of the 30-day period in which to request an extension to file the requisite
documents with the State Engineer. She also conceded that she received
actual notice of the cancellation before the expiration of the 60-day period
to request review. Therefore, unlike in Engelmann and Scotsman, the
limitations period did not prevent Benson from seeking administrative
review. And although Benson argues that administrative review would
4 In compliance with NRS 533.410, the State Engineer sent its notice
of cancellation to Englemann via certified mail. Englemann, 98 Nev. at
351,
647 P.2d at 387. The post office returned the certified letter to the
State Engineer as unclaimed. Id. at 351-52,
647 P.2d at 387-88.
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not have offered her any relief, we disagree. We are not persuaded by
Benson's claim that a water permit with an appropriation date of 2013
would afford her no remedy at all. Under NRS 533.395(2), following a
public hearing, the State Engineer could have "modifliedl or rescind fed]
the cancellation" and issued Benson a water permit with an effective date
of 2013. NRS 533.395(2), (3). Although a water permit with a 2013
appropriation date effectively places Benson near the end of the line to
appropriate water, this is a form of relief. We recognize that it is not the
remedy that Benson prefers, but we do not consider administrative
proceedings to be futile solely because the statute prevents the petitioner
from receiving his or her ideal remedy through administrative
proceedings. If a permit with a 2013 priority date did not allow her to
appropriate sufficient water, seeking judicial review would have then been
permissible. See NRS 533.395(4); NRS 533.450. We therefore hold that
when NRS 533.395 authorizes the State Engineer to provide a party with
a remedy, even when that remedy is not the remedy the party prefers, the
doctrine of futility does not apply and excuse the party from complying
with NRS 533.395(4)'s exhaustion requirement, 5 and the party must
exhaust all available administrative remedies before seeking judicial
review.
We recognize that by requiring a petitioner to prove that the
administrative review process would provide "no relief at all," our holding
5NRS 533.395(4) states: "The cancellation of a permit may not be
reviewed or be the subject of any judicial proceedings unless a written
petition for review has been filed and the cancellation has been affirmed,
modified or rescinded pursuant to subsection 2."
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today defines Nevada's futility more narrowly than the federal courts'
definitions, which focus on the adequacy of the remedy.° Such a strict
standard is necessary in cases under NRS Chapter 533 because of the
unique nature of water rights. See Ruddell v. Sixth Judicial Dist. Court,
54 Nev. 363, 367,
17 P.2d 693, 694 (1933) (holding that water law cases
are "special in their character"). The strict standard is also warranted
because the administrative review process requires a public hearing. NRS
533.395(2). The scarcity of water resources in our desert climate demands
public scrutiny in water rights cases. See Dep't of Conservation & Natural
Res., Div. of Water Res. v. Foley, 121 Nev. 77, 79,
109 P.3d 760, 761(2005)
6 Compare State, Nev. Dep't of Taxation v. Scotsman Mfg. Co., 109
Nev. 252, 255,
849 P.2d 317, 320 (1993) ("The statutory procedure
offers Scotsman no relief at all given the three-year period of
limitations. . . ." (emphasis added)), with Tesoro Ref & Mktg. Co. v. Fed.
Energy Regulatory Comm'n, 552 F.3d 868, 874 (D.C. Cir. 2009) ("The
futility exception is quite restricted and limited to situations when resort
to administrative remedies would be clearly useless." (emphasis added)
(internal quotations omitted)); Rose v. Yeaw, 214 F.3d 206, 210-11 (1st Cir.
2000) ("A plaintiff does• not have to exhaust administrative remedies if she
can show that the agency's adoption of an unlawful general policy would
make resort to the agency futile, or that the administrative remedies
afforded by the process are inadequate given the relief sought." (emphasis
added)); Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d 1309, 1316 (11th Cir.
2000) ("Thus far, our circuit has recognized exceptions only when resort to
administrative remedies would be futile or the remedy inadequate, or
where a claimant is denied meaningful access to the administrative review
scheme in place." (emphasis added) (internal quotations omitted)); and
Diaz v. United Agric. Emp. Welfare Benefit Plan & Trust, 50 F.3d 1478,
1485 (9th Cir. 1995) ("[B]are assertions of futility are insufficient to bring
a claim within the futility exception, which is designed to avoid the need to
pursue an administrative review that is demonstrably doomed to fail."
(emphasis added)).
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(recognizing that the State Engineer must scrutinize the beneficial use of
water rights due to "Nevada's arid geography"). Moreover, this stricter
standard will provide the district court with a fully developed record and
administrative decision, including factual findings by an administrative
body with expertise on water appropriation. This will place the district
court in a better position, acting in an appellate capacity, to determine
issues such as whether a party has proved adequate grounds for having a
permit restored with its original appropriation date. See Malecon Tobacco,
LLC v. State ex rel. Dep't of Taxation, 118 Nev. 837, 840-41,
59 P.3d 474,
476 (2002) (noting that administrative agencies are generally in the best
position to make factual determinations). Lastly, the stricter standard
will provide the State Engineer with the opportunity to correct its
mistakes and protect judicial resources. See Mesagate Homeowners' Ass'n
v. City of Fernley, 124 Nev. 1092, 1099,
194 P.3d 1248, 1252-53 (2008)
(explaining that the purpose of the exhaustion requirement is to allow
agencies to correct their mistakes and conserve judicial resources).
Equitable relief
Benson additionally asserts that she was not required to seek
administrative review because the State Engineer is not empowered to
grant equitable relief; specifically, the State Engineer cannot reinstate her
water permit with its original priority date. She relies upon this court's
holding in State Engineer v. American National Insurance Co., 88 Nev.
424,
498 P.2d 1329 (1972). However, this case is distinguishable from
American National.
In American National, the State Engineer canceled a water
permit because the permittee failed to file proof of application of the water
to beneficial use by the set deadline. Id. at 425,
498 P.2d at 1330. The
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permittee had filed every other required proof, completed the well and the
pump, and put the water to beneficial use. Id. The district court found
the following: (1) the permittee spent $35,000 to improve the land, (2) the
State Engineer did not intend to approve new permits in the foreseeable
future, (3) no one would be damaged by the permittee's appropriation of
the water, and (4) the permittee's appropriation would provide increased
tax revenues for Humboldt County. Id. at 425-26,
498 P.2d at 1330.
Moreover, the State Engineer did not dispute that equity rested with the
permittee. Id. Consequently, the district court granted equitable relief
and reinstated the permit. Id. at 426,
498 P.2d at 1330. This court
affirmed the lower court's decision, concluding that NRS Chapter 533 did
not prohibit the district court from granting equitable relief when
warranted. Id. In the instant case, Benson has only shown that the State
Engineer will not approve new applications to appropriate water from the
particular basin. Benson has not shown that she or her family have
expended any funds toward improvements or completed any portion of the
project, that the water was put to beneficial use, that a third party would
not be harmed by her appropriation of water, or that such appropriation
would benefit Eureka County.
The instant case is also distinguishable from American
National because the Legislature amended NRS Chapter 533 since we
decided that case. At the time of our decision in American National, NRS
533.395 did not require a permittee to request administrative review of a
canceled permit before seeking judicial review. See 1981 Nev. Stat., ch.
44, § 3, at 114 (amending NRS 533.395 to allow the holder of a canceled
permit to petition the State Engineer to review a canceled permit at a
public hearing and precluding judicial review of a canceled permit if the
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permittee did not first petition for the State Engineer's review). When
American National filed its petition for judicial review, the relevant
statute read:
If, in the judgment of the state engineer, the
holder of any permit to appropriate the public
water is not proceeding in good faith and with
reasonable diligence to perfect said appropriation,
the state engineer may require at any time the
submission of such proof and evidence as may be
necessary to show a compliance with the law, and
the state engineer shall, after duly considering
said matter, if, in his judgment, the said holder of
a permit is not proceeding in good faith and
with reasonable diligence to perfect the said
appropriation, cancel the said permit, and advise
the holder of said permit of said cancellation.
1913 Nev. Stat., ch. 140, § 68, at 213 (enacting Nevada's water law
statutes). At that time, American National did not have a remedy at law
to address the deprivation of its water right. See id. Because Nevada law
did not provide a remedy for American National, as the State Engineer
was without discretion to review a permit cancellation, equitable relief
through judicial review was appropriate. See Am. Nat'l Ins. Co., 88 Nev.
at 426,
498 P.2d at 1330. The difference between the statutes in force
before 1981, when we decided American National, and in 2013, when
Benson filed for judicial review of her canceled water permit, makes
American National inapplicable to this case because administrative review
pursuant to NRS 533.395(2) could have offered Benson relief. See Smith v.
Smith, 68 Nev. 10, 22,
226 P.2d 279, 285 (1951) (concluding that the
district court did not have jurisdiction in equity "where statutes in force
required [the party] to seek his relief in another way").
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Benson has not proven that the law does not provide her with
an adequate legal remedy. NRS 533.395(3) allowed the State Engineer to
rescind its cancellation of the permit and reissue a permit with a 2013
appropriation date. Benson opines that she would not be able to
appropriate any water with such a permit because the well is
overburdened and the State Engineer will not accept new permits to
appropriate water from this source. However, Benson's unsupported
suspicions that the remedy would have been inadequate are insufficient to
excuse her noncompliance with NRS 533.395(2) and (4). District courts
should not entertain a petition for equitable relief based upon a party's
unproven supposition that the remedy at law is inadequate. Accordingly,
the district court properly ruled that it could not grant Benson equitable
relief. 7 See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592,
599,
245 P.3d 1198, 1202 (2010) ("This court will affirm a district court's
order if the district court reached the correct result, even if for the wrong
reason.")
CONCLUSION
We conclude that NRS 533.395 requires a party who is
aggrieved by the cancellation of a water permit to exhaust all available
administrative remedies pertaining to the State Engineer's decision on a
7 1n its order granting the State Engineer's motion to dismiss
Benson's claims, the district court explained that it could not provide any
equitable relief to Benson unless her water permit remained valid. The
court did not cite to any authority to support its conclusion, and this court
is not aware of any such requirement. Nonetheless, equitable relief was
improper due to the existence of a statutory remedy. See NRS 533.395(2).
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water permit before filing a petition for judicial review with the district
court. Benson should have therefore filed a written request for the State
Engineer to review its decision to cancel the trust's water permit at a
public hearing before she sought judicial remedies. Accordingly, we affirm
the decision of the district court.
We concur:
.ea.Aca , C.J.
Hardesty
J.
Parraguirre
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a--64=S-:
J.
J.
Gibbons
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