By Robin Hebrock | Pahrump Valley Times | December 12, 2018 – 7:00 am
On Nov. 8 a Nevada district court judge ruled that Nevada State Engineer Order #1293(A) be rescinded and now, a month later, the court order making that ruling official has been signed and filed.
However, the fight is far from over, with the receipt of the court order by the state engineer’s signaling a 30-day period in which it can file an appeal over that decision. According to office representatives, the engineer does indeed plan to seek an appeal and Pahrump residents will have to bide their time once again as they wait to see the ultimate result of this battle of the engineer’s office versus area property owners, well drillers and real estate agents.
“Given the significant potential impact of the court’s ruling on all Nevada water users, the state engineer intends to appeal the District Court’s decision to the Nevada Supreme Court and to simultaneously seek a stay of the decision,” Nevada Department of Conservation and Natural Resources Public Information Officer JoAnn Kittrell stated when reached for comment on behalf of the state engineer’s office.
Order #1293 was issued by Nevada State Engineer Jason King in Dec. 2017, following a request for such action by the Nye County Water District Governing Board. The order restricted the drilling of domestic wells in Pahrump’s Basin #162 by requiring that all new domestic wells have at least two acre-feet of water rights relinquished to the state in support of the well, prompting a wave of criticism and concern in the valley.
Shortly after the initial order was signed off, Pahrump residents and property owners banded together to form Pahrump Fair Water LLC, which immediately filed suit to challenge the engineer’s order. Six months after the original order, an amended version, Order #1293(A), was issued and the state engineer’s office attempted to have Pahrump Fair Water’s lawsuit thrown out, arguing that Order #1293(A) superseded Order #1293 and therefore the lawsuit was moot.
However, Pahrump Fair Water was not about to let this create a stumbling block and the group, represented by attorney Dave Rigdon of Taggart and Taggart LTD, entered into a settlement agreement with the engineer’s office in which the suit against Order #1293 was dropped and a new petition was filed against Order #1293(A). In return for this action, the engineer’s office agreed to an expedited case schedule.
On Nov. 8 district court Judge Steven Elliott ruled in favor of Pahrump Fair Water and tasked Rigdon with drafting the court order that would effectively rescind Order #1293(A). Rigdon submitted his draft to the courts on Nov. 21, but his was not the only version for the judge to consider.
Rigdon explained for the Pahrump Valley Times that the state engineer’s office disagreed with the language of Rigdon’s proposed order and had decided to take what Rigdon described as a “rather unusual step” by submitting a proposed order of its own. In the end, however, it was Pahrump Fair Water’s proposal that judge Elliott put his pen to and signed off on Dec. 3. The document was officially filed on Dec. 6.
Court order language
In the 10-page court order, Rigdon outlines Pahrump Fair Water’s stance that the state engineer’s office overreached its authority and violated constitutional due process by its lack of notice to affected parties. Furthermore, the court order details that Order #1293(A) is not supported by any substantial evidence.
“The language of NRS 534.030(4) is plain and unambiguous. The statute grants the state engineer general supervisory power over all groundwater wells except domestic wells. The history of this particular provision, and of groundwater law in general, demonstrate that the Legislature purposely intended to exempt domestic wells from the state engineer’s regulatory authority except in certain limited circumstances inapplicable to the present case,” the court order composed by Rigdon reads. “Accordingly, the amended order is an invalid exercise of authority that the state engineer does not possess.”
“The Nevada Supreme Court has ruled that prior to issuing a regulation affecting an interest in real property, a regulatory body must provide personal notice to each affected property owner,” the document continues. “Said notice must include the content of the regulation so that affected parties can adequately prepare to oppose it. Finally, the regulatory body must hold a hearing and allow affected property owners the opportunity to provide testimony and evidence related to the regulation.
“A failure to follow these steps is a constitutional due process violation that renders the regulation invalid. Because the orders impair a vested property right, and because the state engineer failed to provide notice or hold a hearing before issuing the orders, the orders are hereby deemed invalid,” document also said.
The court order prepared by Rigdon also lays out Pahrump Fair Water’s belief that the state engineer does not have any significant evidence to show that Order #1293(A) is necessary. “…the Pahrump basin is not currently being over-pumped, groundwater pumping in Pahrump has declined since 1969, as a result of this reduction in pumping, water levels in some portions the basin have leveled off or significantly rebounded (in some cases by as much as 45 feet), and the Amended Order contains no scientific analysis of whether the drilling of additional domestic wells impact existing wells in the basin.”
The engineer’s office argued against each of these claims during the hearings held in the matter but to no avail. The court order states that the court determined that Pahrump Fair Water’s arguments to this effect were valid and the engineer’s office “arbitrarily and capriciously” issued Order #1293(A).
“It is hereby ordered that petitioners’ petition for judicial review is granted,” the court order concludes. “It is hereby ordered that the respondent’s amended Order #1293(A) is reversed.”
As for the question of where drilling of domestic wells in the Pahrump Valley stands today, Kittrell replied, “The Office of the State Engineer is awaiting results of its request for a stay, and appeal while reviewing new requests to drill domestic wells in Pahrump.”