134 Nev., Advance Opinion I&
IN THE SUPREME COURT OF THE STATE OF NEVADA
JASON KING, P.E., NEVADA STATE No. 70458
ENGINEER, DIVISION OF WATER
RESOURCES, DEPARTMENT OF
CONSERVATION AND NATURAL FILED
RESOURCES,
Appellant,
MAR 2 9 2018
vs. ErrrcoveNN
SUST7.--H.,11F,rtapi
RODNEY ST. CLAIR, BY lade ISA
CLEM
Respondent.
Appeal from a district court order resolving a petition for
judicial review in a water rights matter. Sixth Judicial District Court,
Humboldt County; Steven R. Kosach, Senior Judge.
Affirmed.
Adam Paul Laxalt, Attorney General, and Justina A. Caviglia, Deputy
Attorney General, Carson City,
for Appellant.
Taggart & Taggart, Ltd., and Paul G. Taggart and Rachel L. Wise, Carson
City,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, STIGLICH, J.:
This case concerns respondent Rodney St. Clair's entitlement to
water rights connected to a property that he purchased in 2013. Upon
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finding an abandoned well on the property, St. Clair applied to the State
Engineer for a permit to temporarily change the point of diversion of the
underground water source from that well to another location on his
property. To support that application, St. Clair submitted a Proof of
Appropriation, in which he claimed that a prior owner of the property had
established a vested right to the underground water source. In ruling on
St. Clair's application for a temporary permit, the State Engineer found that
a prior owner had indeed established a right to appropriate underground
water, but a subsequent owner abandoned that right through years of
nonuse. Upon St. Clair's petition for judicial review, the district court
overruled the State Engineer's decision, finding insufficient evidence that
any owner of the property intended to abandon the property's water right.
We affirm because nonuse evidence alone was insufficient to support a
finding of an intent to abandon.
FACTS AND PROCEDURAL HISTORY
In 2013, Rodney St. Clair purchased real property in Humboldt
County, Nevada. Upon finding remnants of a well casing on the property,
St. Clair filed two documents with the State Engineer. The first was a Proof
of Appropriation, in which St. Clair claimed a pre-1939 vested right to
appropriate underground water. The second was an application for a permit
to temporarily change the place of diversion of that water.
To support his Proof of Appropriation, St. Clair submitted
documents establishing that the property in question was first acquired by
George Crossley in 1924 pursuant to the Homestead Act of 1862. Several
months later, Crossley deeded the land, with all appurtenances, to Albert
H. Trathen. The Trathen family maintained ownership over the property
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4.
until 2013, when St. Clair bought it. All property taxes were paid from 1924
to the present.
St. Clair's documentation also included Crossley's 1924 land
patent application, in which Crossley indicated that a drilled well existed
on the property. St. Clair submitted pictures of remnants of the well
existing on the property in 2013. By that time, the well had become
inoperable, and St. Clair admitted in his application that the land had not
been irrigated recently and that he did not know when it was last irrigated.
In ruling on St. Clair's application, the State Engineer found
sufficient evidence that Crossley had appropriated underground water and
put it to beneficial use prior to March 25, 1939, thus vesting a pre-statutory
right to appropriate underground water pursuant to NRS 534.100. 1
However, the State Engineer also found that the water was not used
continuously from 1924 to the present and that there was "no evidence
pointing to a lack of prior owners' intent to abandon the water right." Based
on those findings, the State Engineer concluded that the vested water right
had been abandoned. The State Engineer therefore denied St. Clair's
application seeking a temporary change of place of diversion on the basis
that no appropriated water was available.
St. Clair petitioned for judicial review. While the district court
accepted the State Engineer's findings that the well was inoperable and that
water had not been put to beneficial use for some time, the court reasoned
"that non-use of the water is not enough to constitute abandonment" of a
water right. The district court noted that the property contained no
improvements inconsistent with irrigation and the evidence indicated that
1 The State Engineer appears to have erroneously cited to NRS
534.080(1) instead of NRS 534.100.
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all taxes and assessments on the property were paid from Crossley's time
up until the present. Thus, the district court overruled the State Engineer's
abandonment finding as being unsupported by substantial evidence and
ordered the State Engineer to grant St. Clair's application for a permit to
change the place of diversion. The State Engineer appeals.
DISCUSSION
When this court reviews a district court's order reversing an
agency's decision, we apply the same standard of review that the lower court
applied: we determine whether the agency's decision was arbitrary or
capricious. See Pyramid Lake Paiute Tribe of Indians v. Washoe Cty., 112
Nev. 743, 751,
918 P.2d 697, 702 (1996). According to that standard, factual
findings of the State Engineer should only be overturned if they are not
supported by substantial evidence. See id. Substantial evidence is "that
which a reasonable mind might accept as adequate to support a conclusion."
Bacher v. Office of the State Eng'r, 122 Nev. 1110, 1121,
146 P.3d 793, 800
(2006) (internal quotation marks omitted). We review purely legal
questions de novo. See In re Nev. State Eng'r Ruling No. 5823, 128 Nev.
232, 238-39,
277 P.3d 449, 453 (2012).
The State Engineer misapplied Nevada law in finding that nonuse alone
established a prior owner's intent to abandon water rights
"A right to use underground water. . may be lost by
abandonment." NRS 534.090(4) (2011). 2 The party asserting abandonment
"bears the burden of proving, by clear and convincing evidence," that an
owner of the water right intended to abandon it and took actions consistent
2NRS 534.090 has been amended twice since 2013, when the State
Engineer ruled on St. Clair's application. See 2017 Nev. Stat., ch. 147, § 1,
at 656-58; 2017 Nev. Stat., ch. 517, § 9, at 3505-07. We cite to the version
of NRS 534.090 in effect in 2013.
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with that intent. See Town of Eureka v. Office of the State Eng'r, 108 Nev.
163, 169,
826 P.2d 948, 952 (1992). Clear and convincing evidence "is
beyond a mere preponderance of the evidence." See Albert H. Wohlers & Co.
v. Bartgis, 114 Nev. 1249, 1260 n.4,
969 P.2d 949, 957 n.4 (1998) (internal
quotation marks omitted); see also In re Discipline of Drakulich, 111 Nev.
1556, 1566,
908 P.2d 709, 715 (1995) (clear and convincing evidence "need
not possess such a degree of force as to be irresistible, but there must be
evidence of tangible facts from which a legitimate inference . . . may be
drawn" (internal quotation marks omitted)).
The State Engineer's primary argument is that the district
court erroneously focused on St. Clair when it found insufficient evidence of
an intent to abandon the water right connected to the property. The
relevant intent, the State Engineer claims, is that of the previous
landowners who allowed the well to fall into disrepair and failed to put the
water to beneficial use.
The State Engineer is correct that, assuming a prior owner has
taken actions consistent with abandonment, it is that owner's intent that
controls. Otherwise, water rights could be abandoned by one property
owner and then revived 50 years later by a subsequent owner, potentially
resulting in over-appropriation of water. See Haystack Ranch, LLC v.
Fazzio, 997 P.2d 548, 554 (Colo. 2000) ("[Shibsequent efforts by current
owners to put water rights to beneficial use cannot revive water rights
already abandoned by previous owners.").
The question is what constitutes sufficient evidence of a prior
owner's intent to abandon. The State Engineer argues that decades of
nonuse were sufficient to establish that a prior owner intended to abandon
the water right.
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Contrary to the State Engineer's argument, however, "Nevada
law does not presume abandonment of a water right from nonuse alone."
United States v. Alpine Land & Reservoir Co., 510 F.3d 1035, 1038 (2007);
see also Revert v. Ray, 95 Nev. 782, 786,
603 P.2d 262, 264 (1979)
("Abandonment, requiring a union of acts and intent, is a question of fact to
be determined from all the surrounding circumstances."); Franktown Creek
Irrigation Co., Inc. v. Marlette Lake Co., 77 Nev. 348, 354,
364 P.2d 1069,
1072 (1961) (" [I] t is necessary to establish the owner's intention to abandon
and relinquish such right before an abandonment can be found."); Barry v.
Merickel Holding Corp., 60 Nev. 280, 290,
108 P.2d 311, 316 (1940) ("[I]n
abandonment the intent of the water user is controlling. To substitute and
enlarge upon that by saying that the water user shall lose the water by
failure to use it for a period of five years, irrespective of the intent, certainly
takes away much of the stability and security of the right to the continued
use of such water.").
In this case, an extended period of nonuse is evidenced by the
property's inoperable well and unirrigated land. However, that nonuse
evidence alone does not shift the burden to St. Clair to prove an intent not
to abandon the water right. 3 To shift the burden on this issue, the State
Engineer would have to show additional evidence indicating an intent to
abandon—for example, evidence that an owner made improvements to the
land inconsistent with irrigation, or evidence that the owner failed to pay
property taxes during the period of nonuse. See Revert, 95 Nev. at 786, 603
3 To the extent that Alpine Land suggests that nonuse evidence
constitutes "some evidence of abandonment" that shifts the burden to the
applicant, we reject that interpretation of Nevada law. See 510 F.3d at
1038, 1038 n.5.
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P.2d at 264 (considering "delinquent taxes" as evidence supporting a finding
of abandonment). We find no such evidence in this record.
Considering "all the surrounding circumstances," id., there is
not clear and convincing evidence that St. Clair's predecessor intended to
abandon the water right. In concluding otherwise, the State Engineer
misapplied Nevada law by presuming abandonment based on nonuse
evidence alone. In so doing, the State Engineer acted arbitrarily and
capriciously. Therefore, the district court correctly overruled the State
Engineer's ruling with regard to abandonment.
The State Engineer's additional claims lack merit
The State Engineer makes several additional claims. First, the
State Engineer argues that the district court exceeded its authority when it
ordered the State Engineer to grant St. Clair's temporary application,
rather than remanding to the State Engineer to consider factors other than
abandonment. Given that the temporary application expired on June 10,
2017, this issue is moot, and we decline to address it. 4 See Nat'l Collegiate
Athletic Ass'n v. Univ. of Nev., Reno, 97 Nev. 56, 58,
624 P.2d 10, 11 (1981).
Second, the State Engineer argues that the district court
abused its discretion by expanding the record on review. In particular, the
State Engineer argues that the court erred in granting a request from St.
Clair to take judicial notice of legal briefs and prior State Engineer decisions
in unrelated matters. In so doing, the State Engineer argues, the district
4 By contrast, the issue of abandonment addressed above is not moot
because the State Engineer's abandonment ruling remains in effect. At
least as of November 7, 2017, St. Clair had another application to change
the place of diversion pending before the State Engineer. The State
Engineer's ruling of abandonment on St. Clair's Proof of Appropriation
would have required that application to be rejected.
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court went beyond determining "whether substantial evidence in the record
supports the State Engineer's decision." Revert, 95 Nev. at 786,
603 P.2d at
264 (emphasis added). However, this issue is not properly before us because
the State Engineer failed to preserve it with its opposition filed five months
after St. Clair's request for judicial notice. The district court properly
denied that opposition as untimely. See D.C.R. 13(3) (requiring written
opposition to be filed within ten days of service of the opposing party's
motion). We therefore decline to address this issue. Archon Corp. v. Eighth
Judicial Dist. Court, 133 Nev., Adv. Op. 101, 407 P.3d 702, 708 (2017)
(noting that this court may decline to consider issues improperly presented
to the district court).
Third and last, the State Engineer argues that the district court
violated NRCP 52 by adopting in full an order drafted by St. Clair. Prior to
approving St. Clair's drafted order, the district court held a hearing to
consider the State Engineer's objections to specific language within that
order. That the district court found those objections unpersuasive does not
mean that the court neglected its duty to make factual findings It is
common practice for Clark County district courts to direct the prevailing
party to draft the court's order. See EDCR 1.90(a)(5) ("[A] judge or other
judicial officer shall order the prevailing party to prepare a written
judgment and findings of fact and conclusions of law.").
CONCLUSION
An extended period of nonuse of water does not in itself
establish clear and convincing evidence that a property owner intended to
abandon a water right connected to the property. In this case, there was no
additional evidence indicating an intent to abandon, so the State Engineer's
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finding of abandonment was unsupported by substantial evidence.
Therefore, we affirm the district court's decision.
§tiglich
We concur:
C.J.
Douglas
Ck
Cherry
llt,t
IP'e u J.
Pickering
/eAC4 Sajc J.
HarNy
j.
Parraguirre
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