133 Nev., Advance Opinion 71
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA STATE No. 70157
ENGINEER; THE STATE OF NEVADA
DEPARTMENT OF CONSERVATION
AND NATURAL RESOURCES,
DIVISION OF WATER RESOURCES;
FILED
AND KOBEH VALLEY RANCH, LLC, SEP 2 7 2017
Appellants,
vs.
EUREKA COUNTY, A POLITICAL
SUBDIVISION OF THE STATE OF
NEVADA; KENNETH F. BENSON, AN
INDIVIDUAL; DIAMOND CATTLE
COMPANY, LLC, A NEVADA LIMITED
LIABILITY COMPANY; AND MICHEL
AND MARGARET ANN ETCHEVERRY
FAMILY, LP, A NEVADA REGISTERED
FOREIGN LIMITED PARTNERSHIP,
Respondents.
Appeal from a district court order granting a petition for
judicial review in a water law matter. Seventh Judicial District Court,
Eureka County; Gary Fairman, Judge.
Affirmed.
Adam Paul Laxalt, Attorney General, and Micheline N. Fairbank, Senior
Deputy Attorney General, Carson City, for Appellants State of Nevada
State Engineer and the State of Nevada Department of Conservation and
Natural Resources, Division of Water Resources.
Taggart & Taggart, Ltd., and Paul G. Taggart and David H. Rigdon,
Carson City; Parsons Behle & Latimer and Ross E. de Lipkau and Gregory
H. Morrison, Reno, and Francis M Wikstrom, Salt Lake City, Utah,
for Appellant Kobeh Valley Ranch, LLC.
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Allison MacKenzie, Ltd., and Karen A. Peterson, Dawn Ellerbrock, and
Kyle A. Winter, Carson City; Theodore Beutel, District Attorney, Eureka
County, for Respondent Eureka County.
Schroeder Law Offices, P.C., and Therese A. Ure and Laura A. Schroeder,
Reno, for Respondents Kenneth F. Benson; Diamond Cattle Company,
LLC; and Michel and Margaret Ann Etcheverry Family, LP.
BEFORE THE COURT EN BANC.
OPINION
By the Court, CHERRY, C.J.:
We previously determined in Eureka County v. State Engineer
(Eureka I), 131 Nev., Adv. Op. 84, 359 P.3d 1114 (2015), that the State
Engineer failed to rely upon substantial evidence in finding that Kobeh
Valley Ranch, LLC (KVR) would be able to mitigate conflicts to prior
water rights when approving KVR's applications to appropriate water.
Specifically, we concluded that the State Engineer's "decisions must be
supported by substantial evidence in the record before him," and that for
these permits that "[was] not the case." Eureka I, 131 Nev., Adv. Op. 84,
359 P.3d at 1120. As a result, we reversed the district court's previous
order denying judicial review and remanded to the district court for
further proceedings.
On remand, the district court granted the previously denied
petition for judicial review and vacated KVR's permits. KVR and the
State Engineer contend that the district court violated our mandate by not
further remanding to the State Engineer for additional fact-finding.
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We conclude that the district court properly granted the
petition for judicial review and properly vacated KVR's permits. The
district court's actions were proper because (1) we did not direct the
district court to remand to the State Engineer, and (2) KVR is not entitled
to a second bite at the apple after previously failing to present sufficient
evidence of mitigation.
FACTS AND PROCEDURAL HISTORY
Appellant KVR filed numerous applications to amend water
usage in the Kobeh Valley. Respondents Eureka County and several
existing holders of water rights protested the applications. The State
Engineer granted KVR's applications in Ruling Number 6127. In R6127,
the State Engineer recognized that the ruling would impact some senior
water rights but that KVR might be able to mitigate the impact. Even
though the State Engineer had already approved the applications, R6127
required KVR to prepare a monitoring, management, and mitigation plan
(3M Plan) before diverting any water.
Respondents petitioned the district court to review R6127.
The district court denied the petition for judicial review, finding that
substantial evidence supported R6127. While review of R6127 was
pending in the district court, KVR submitted its 3M Plan and the State
Engineer approved it. The district court denied a petition for judicial
review of the 3M Plan
Respondents appealed the district court's decision claiming,
inter alia, that the State Engineer was required to deny applications for
permits that would conflict with prior water rights under NRS 533.370(2).
We acknowledged our concern that the State Engineer may have exceeded
his authority by considering mitigation at all, but we did not reach that
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issue. Instead, we concluded that even if the State Engineer had the
authority to consider mitigation, he failed to rely upon substantial
evidence that KVR would be able to actually mitigate the conflicts. As a
result, we reversed and remanded the case "to the district court for
proceedings consistent with [the] opinion."' Eureka I, 131 Nev., Adv. Op.
84,359 P.3d at 1121.
Shortly after the remittitur issued following Eureka I, KVR
submitted proposed orders to the district court to remand the case to the
State Engineer for additional fact-finding. Respondents filed a joint
objection to the proposed orders, in which they argued that Eureka I
required the district court to vacate KVR's permits outright, rather than
remand to the State Engineer.
The district court ruled in favor of respondents, sustaining
their joint objection to KVR's proposed orders, granting their petition for
judicial review, and vacating KVR's permits. Specifically, the district
court interpreted Eureka I as a mandate to vacate KVR's permits without
remanding for further fact-finding.
DISCUSSION
KVR and the State Engineer argue that the district court
exceeded its authority and violated our instructions by vacating the
permits rather than remanding the case to the State Engineer for further
fact-finding. We disagree.
JA more detailed recital of the facts up to and including our prior
opinion can be found in Eureka I, 131 Nev., Adv. Op. 84, 359 P.3d at 1116-
21.
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Whether the district court has complied with our mandate on
remand is a question of law that we review de novo. Wheeler Springs
Plaza, LLC v. Beemon, 119 Nev. 260, 263,
71 P.3d 1258, 1260 (2003).
"Where an appellate court deciding an appeal states a principal or rule of
law, necessary to the decision, the principal or rule becomes the law of the
case and must be adhered to throughout its subsequent progress both in
the lower court and upon subsequent appeal." LoBue v. State ex rel. Dep't
of Highways, 92 Nev. 529, 532,
554 P.2d 258, 260 (1976). When an
appellate court remands a case, the district court "must proceed in
accordance with the mandate and the law of the case as established on
appeal." E.E.O.C. v. Kronos Inc., 694 F.3d 351, 361 (3d Cir. 2012)
(internal quotation marks omitted). The district court commits error if its
subsequent order contradicts the appellate court's directions. Stacy, 825
F.3d at 568.
In Eureka I, we determined that the State Engineer's
determination that KITE, could mitigate any conflicts to preexisting water
rights was not based upon substantial evidence and could not stand. 131
Nev., Adv. Op. 84, 359 P.3d at 1121. At no point did we direct the district
court to remand to the State Engineer for additional fact-finding. Because
(1) the State Engineer relied on insufficient facts before granting KVEls
applications, (2) we gave no order to remand to the State Engineer, and
(3) KVR is not entitled to a do-over after failing to provide substantial
mitigation evidence, we conclude that the district court acted consistently
with Eureka I.
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CONCLUSION
Because the district court acted consistently with our
instructions set forth in Eureka I, we affirm the district court's order. 2
, C.J.
We concur:
J.
Gibbons
J.
42LskeIsar
Parraguirre
J.
Stiglich
2We have considered the State Engineer's and KVR's other theories
of error and conclude that they are without merit.
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PAITA .D
PJF
PICKERING, J., with whom HARDESTY, J., agrees, concurring:
Eureka I did not mandate that the district court grant the
petitions for judicial review. It reversed and remanded the district court's
order denying judicial review for further proceedings consistent with the
court's opinion. An open-ended reversal and remand such as this permits
further proceedings on motion in district court. The law of the case
doctrine applies "to issues previously determined, not to matters left open
by the appellate court." Wheeler Springs Plaza, LLC v. Beemon, 119 Nev.
260, 266,
71 P.3d 1258, 1262 (2003); compare Recontrust Co. v. Zhang,
130
Nev. 1, 8,
317 P.3d 814, 818 (2014) (for a prior appellate disposition to
establish law of the case that is binding on the district court "the appellate
court must actually address and decide the issue explicitly or by necessary
implication") (quoting Dictor v. Creative Mgmt. Servs., LLC, 126 Nev. 41,
44,
223 P.3d 332, 334 (2010)), with Biggins v. Hazen Paper Co.,
111 F.3d
205, 209 (1st Cir. 1997) ("Broadly speaking, [appellate] mandates require
respect for what the higher court decided, not for what it did not decide.").
The record and briefs in Eureka I did not afford a basis for this
court to resolve whether, as an equitable matter, KVR should be allowed
to reopen the proceedings before the State Engineer to present additional
evidence. See Great Basin Water Network v. State Eng'r, 126 Nev. 187,
199,
234 P.3d 912, 919 (2010) ("We have previously recognized the district
court's power to grant equitable relief when water rights are at issue.")
(collecting cases); cf. Standard Oil Co. v. United States, 429 U.S. 17, 18-19
(1976) (holding that the mandate branch of the law of the case doctrine
does not preclude a trial court from entertaining a Rule 60(b) motion that,
if granted, would disturb the judgment entered in accordance with the
appellate mandate). Further, neither the record and briefs nor this court's
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opinion in Eureka I ruled out the possibility of a mixed result, by which,
for example, the applications and permits pertaining to Diamond Valley
could be sustained but not others. These and other potential issues were
left open to the parties and the district court—and not precluded by—the
doctrine of law of the case and our decision in Eureka I.
Although not required by the law of the case doctrine or
Eureka I, I nonetheless concur in the result. Under Great Basin, this
court, equally with the district court, "has the power to grant equitable
relief in water law cases." 126 Nev. at 199, 234 P.3d at 920. After
examining the arguments of the parties and applicable law, I am not
convinced equitable relief is warranted or that the arguments presented to
the district court establish a basis for reversing its decision to grant the
petitions for judicial review. I therefore concur, but only in the result.
Pickering
I concur:
, J.
Hardesty
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