Pahrump water order reversal signed by judge | Pahrump Valley Times

Nevada State Engineer Jason King listens to public comment during a subcommittee hearing at the Legislative Building in Carson City, Nev., on Friday, Aug. 26, 2016. (Cathleen Allison/Las Vegas Review-Journal)

On Nov. 8 a Nevada district court judge ruled that Nevada State Engineer Order #1293(A) be rescinded and now, a month later, the court order making that ruling official has been signed and filed.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.

Background

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and the state engineer’s office attempted to have Pahrump Fair Water’s lawsuit thrown out, arguing that Order #1293(A) superseded Order #1293 and therefore the lawsuit was moot.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.”

Robin Hebrock/Pahrump Valley Times Court documents reversing Order #1293(A) are pictured. Signed by a district court judge on Dec. 3, the court order was filed with the Nye County Clerk’s Office on Dec. 6.

Source: Pahrump water order reversal signed by judge | Pahrump Valley Times

Nye County officials step in on Patch of Heaven struggle | Pahrump Valley Times

Nye County residents Victor and Annette Fuentes have been embroiled in a longstanding battle over water with the U.S. Fish and Wildlife Service and now, Nye County officials are stepping in to request federal assistance for the couple.

Nye County Sheriff Sharon Wehrly and Nye County Commission Chairman John Koenig sent a letter to the White House on April 5. The letter requests direct intervention by President Donald Trump, asking him to address the situation and force the USFWS to return the water to the Fuentes’ 40-acre private property, Patch of Heaven Christian Camp, which is located within Ash Meadows National Wildlife Refuge.

“The Fuenteses are continuing to be denied the full measure of water granted to them first by nature and second by the Office of the Nevada State Engineer in Ruling #6348,” Wehrly wrote to the White House Office of Political Affairs. “We would greatly appreciate the president’s assistance in urging the USFWS to repair the diversion, channel the water back into its original path, the path that God and geology chose millennia ago, and return the disturbed land back to its original state.”

The problem all started almost eight years ago when the USFWS constructed a diversion channel that altered the course of water down the Carson Slough, ultimately redirecting the water flow away from the Fuentes’ property. Without the water, the Fuentes’ land began to dry up and their business of the Patch of Heaven Christian Camp, which is part of Ministerio Roca Solida Ingelsia Cristiana, started to suffer.

Pahrump Valley Times Victor and Annette Fuentes stand in front of a flooded approach to their church camp in this 2007 file photo. The property has dramatically changed since then, due to U.S. Fish and Wildlife’s diversion of the natural water way that brought life to the Patch of Heaven property.

“We bought the property in November of 2006 and we actually started working on it in 2007. Then in 2010, the USFWS diverted the streams that had flowed to the property since the 1800s, they diverted that off our land,” Annette explained in an interview on April 11. “They did it illegally and unlawfully, without getting the appropriate permits from entities like the Army Corps of Engineers and FEMA and others. So we went to court. And we are still in the U.S. Federal Court of Claims over this.”

Annette stated that throughout the years since the couple’s lawsuit was filed, the diversion has caused a frustrating mixture of dry, dusty conditions a majority of the time and periods of frightening flooding that damage the land and put a pinch on their business.

“We’ve lost our trees, we’ve lost our grass and we’ve lost a lot of business as well. The water was something that set us apart from other church camps and retreats. It’s a rarity in the Nevada desert, it was an oasis. And now that’s all changed,” she said. “On top of that, the USFWS didn’t account for any rainfall when they built their diversion channel so the water jumps the banks and floods us out whenever it rains. It’s dangerous, flooding. It’s horrible, it’s scary and it tears up our land.”

However, fixing the situation is no easy task. The Fuenteses have been struggling to have the water fully restored to their property since 2010 and that effort is still underway.

“The Nevada state engineer ruled in our favor in 2016 for them to put the water back. When the state engineer ruled they should put the water back, USFWS did not agree with that and they told the engineer that they were going to run a pipe, run a pump, pump some water into a tank and then into the original ditch,” Annette explained. “As it is, there are nothing but problems with that system.”

Wehrly touched on this in her letter as well, writing, “The amount of water provided to them produces a flow of water approximately 15 feet to stagnant water and ceases, soaking into barren ground. The pump is non-operational on a regular basis… The state engineer’s ruling confirms the Fuentes’ right to the water. However, the USFWS has not returned the flow of water down Carson Slough from their diversionary, man-made alternate ditch project back into its original path… The water provided is less than one percent of the water historically flowing down Carson Slough. In other words, the USFWS has retained 99 percent of the diverted water…”

An obviously angry Annette stated, “You know what they said to me about that? ‘Take us to court.’”

Pahrump Valley Times Victor and Annette Fuentes stand in front of a flooded approach to their church camp in this 2007 file photo. The property has dramatically changed since then, due to U.S. Fish and Wildlife’s diversion of the natural water way that brought life to the Patch of Heaven property.

That is just what the Fuenteses are doing. “We are still in the court of federal claims, for takings,” she said, “And we are very, very happy to see officials backing us on this. It’s been a long battle and a lot of pushing but it looks like finally they are all getting on board. At least the sheriff and some of the commissioners are. We’re absolutely thankful for their help with this.”

Koenig said the idea to pen a letter to Washington D.C. was Wehrly’s and he asked to be a co-signer in an attempt to add weight to the request. As for the outcome, Koenig said, “What we are hoping is that somehow this gets to someone in Washington who can order these miscreants to do what is right and return the land to the way it was.”

Those wishing to learn more about the situation will have the opportunity next weekend when the Patch of Heaven Rally and Open House is held. On April 20, 21 and 22 the refuge camp will open to the public and Ryan Bundy, who is running for Nevada governor this year, will host a “water rights summit” the first evening. Annette encouraged the public to attend.

“We want people to be able to take a look and see what’s been done,” she invited. “It’s like so many people have told me. They heard about it but they didn’t really understand it until they were out there, looking at it. You just can’t describe it. You have to see it to fully grasp it.”

When reached regarding the subject, USFWS representatives responded, “The service is not able to comment on pending litigation.”

Source: Nye County officials step in on Patch of Heaven struggle | Pahrump Valley Times

Feds restore small portion of creek to Amargosa Valley church’s property | Pahrump Valley Times

In 2010, the U.S. Fish and Wildlife Service diverted the creek away from the Ministerio Roca Solida where Victor and Annette Fuentes, the leaders of the ministry, had founded the Patch of Heaven c …In 2010, the U.S. Fish and Wildlife Service diverted the creek away from the Ministerio Roca Solida where Victor and Annette Fuentes, the leaders of the ministry, had founded the Patch of Heaven church camp. The diversion resulted in repeated flooding of the church’s property. The federal government argued that it has no liability for the flooding. Special to the Pahrump Valley Times

The U.S. Fish and Wildlife Service restored the flow of a small portion of the water to the property owned by Ministerio Roca Solida in Amargosa Valley.

In November, the state gave the Fish and Wildlife Service 90 days to return water to Ministerio Roca Solida, a private church ministry located in the Ash Meadows National Wildlife Refuge, after the investigation found several violations of the terms of the ministry’s water permits.

The issue originated more than 6 ½ years ago when the Fish and Wildlife Service diverted the creek away from the Ministerio Roca Solida where Victor and Annette Fuentes, the leaders of the ministry, had founded the Patch of Heaven church camp. The agency cited the need to preserve endangered species, including the Ash Meadows speckled dace that inhabit the refuge.

Joseph Becker, director of Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation, who represents the Fuentes, issued a brief statement following the restoration of the creek.

“While Pastor Victor Fuentes continues his legal fight to have the desert spring-fed stream and his church camp restored to its pre-unlawful diversion conditions, he nevertheless welcomes the trickle of water now returned to his property via a small pipe and solar-powered pump,” Becker said.

Becker said that restoring a small trickle of water to the church’s property won’t fix the flood damage that has already occurred as a consequence of diversion of the water, nor will it prevent flood damage from occurring in the future.

Despite no previous record of flooding, the church’s camp has been flooded four times since the Fish and Wildlife Service diverted a stream which, prior to 2010, had traversed the church’s private property since at least as early as the late 1800s.

Becker repeatedly said that Fish and Wildlife officials moved the waterway without the requisite Clean Water Act permits being procured from the U.S. Army Corps of Engineers or approval from Nye County officials enforcing FEMA regulations.

In depositions taken pursuant to the lawsuits waged by Nevada Policy Research Institute’s Center for Justice on the church’s behalf, government witnesses have already testified that the artificial channel into which they diverted water was never designed or built to accommodate the amount of water flow historically carried in the water’s former path, Becker said.

In the meantime, Becker said Nevada Policy Research Institute’s Center for Justice will continue its legal fight against the United States in the U.S. Court of Federal Claims for the government’s taking of the church’s vested water rights along with a taking of the 40-acre property itself, “given the repetitive flooding which has occurred and is certain to continue as a result of the United States government’s illegal and ill-conceived action with the spring-fed stream.”

The U.S. Fish and Wildlife Service Southern Nevada did not return requests for comment by press time.

Source: Feds restore small portion of creek to Amargosa Valley church’s property | Pahrump Valley Times

Federal court rejects attempt to dismiss church’s takings claim in Amargosa Valley | Pahrump Valley Times

A ruling from America’s trial court for “takings” issues under the Fifth Amendment of the Bill of Rights has rejected arguments central to the federal government’s case.

In an opinion and order filed Tuesday, Nov. 29, U.S. Court of Federal Claims Judge Elaine D. Kaplan denied a government motion to dismiss the church’s takings claim, stating that the government’s arguments for dismissal “lack merit.”

Joseph Becker of Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation, who represents the church, called the motion “the church’s major victory over the federal government.”

“Judge Kaplan’s decision is a very large step forward for the Patch of Heaven church camp in what has now become a five-year-plus court battle between the church and and the federal government,” Becker said.

In 2010, the U.S. Fish and Wildlife Service diverted the creek away from the Ministerio Roca Solida where Victor and Annette Fuentes, the leaders of the ministry, had founded the Patch of Heaven church camp. The agency cited the need to preserve endangered species, including the Ash Meadows speckled dace that inhabit the refuge.

The diversion also resulted in repeated flooding of the church’s property.

The federal government had argued that it bears no liability for the flooding and that the church had no rights to the water that had previously traversed its property.

Becker argued in the documents that the federal government violated multiple constitutional rights in one fell swoop in August 2010.

The Ministerio Roca Solida has since filed a complaint for the tort and due process and free-exercise claims in the U.S. District Court for Nevada. In 2012, the church also filed a takings claim in the U.S. Court of Federal Claims, along with a motion to stay proceedings in that court pending the outcome of the injunctive relief sought in the U.S. District Court.

The federal government argued before the Court of Federal Claims that the plaintiff could not pursue all its claims. The Court of Federal Claims held that the church could not bring a takings claim in the Federal Court of Claims while seeking relief for other government transgressions in the U.S. District Court.

“Because of the federal agency’s dangerously negligent construction of the diversion channel, never competently engineered to accommodate rain or runoff waters, a mini-grand canyon now cuts through what were once lush wetlands,” Becker said.

The Nevada Division of Water Resources recently said that Roca Solida Ministry had vested rights to the water.

On Nov. 4, the state of Nevada ordered the U.S. Fish and Wildlife Service to return the water to its “historic path” within 90 days. The agency could face administrative fines of up to $10,000 per day until corrective action is taken.

Source: Federal court rejects attempt to dismiss church’s takings claim in Amargosa Valley | Pahrump Valley Times

State orders feds to return water to private ministry | Pahrump Valley Times

Victor Fuentes, leader of the Ministerio Roca Solida, and Joseph Becker, director of Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation, stand in the middle of the …Victor Fuentes, leader of the Ministerio Roca Solida, and Joseph Becker, director of Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation, stand in the middle of the swath of land that had been carved away by repeated floods. Courtesy of Nevada Policy Research Institute

The U.S. Fish and Wildlife Service has 90 days to return water to Ministerio Roca Solida, a private church ministry located in the Ash Meadows National Wildlife Refuge, according to the state.

On Nov. 4, the Nevada Division of Water Resources ordered the federal agency to cease diversion of water through the Ministerio Roca Solida parcel after the investigation found several violations of the terms of the ministry’s water permits.

In 2010, the U.S. Fish and Wildlife Service diverted the creek away from the Ministerio Roca Solida where Victor and Annette Fuentes, the leaders of the ministry, had founded the Patch of Heaven church camp. The agency cited the need to preserve endangered species, including the Ash Meadows speckled dace that inhabit the refuge.

“Getting the water returned would be a major first step in making the ministry whole, after years of suffering litigation and egregious constitutional violations by the U.S. Fish and Wildlife Service,” said Joseph Becker, director of Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation, who represents the Fuentes.

Becker argued that the diversion of the waterway and taking of the ministry’s vested water rights was done without the Clean Water Act permits, in violation of Federal Emergency Management Agency requirements, and with no regard for the ministry’s use of the water for baptisms.

The diversion also resulted in repeated flooding of the church’s property.

The federal government, however, has denied any liability for the flooding and argued that the ministry had no rights to the water that had traversed its property.

While the order from the Nevada Division of Water Resources verified the institute’s claim that the ministry’s vested water rights were violated, the ministry continues to suffer “significant damage and constitutional violations,” Becker said.

“The ministry still suffered significant harm in the interim from the federal government’s actions, including repeated flooding and five years of flood damage resulting from the illegal water diversion project,” Becker said.

He called the state’s order a boost to the “takings” case against the Fish and Wildlife that was brought by the Nevada Policy Research Institute for diverting water from the Ministerio Roca Solida. The case is currently pending in the U.S. Court of Federal Claims.

Fish and Wildlife has multiple water rights within the refuge that are on file with the State Engineer. The entity said that it had acquired these permits “to re-establish historic natural drainage patterns and wetlands within the refuge.”

“Although the USFWS said that its intention in acquiring those permits was to re-establish historic natural drainage courses within the refuge, the evidence presented by the Division of Water Resources demonstrates that the source of the Carson Slough historically traversed through the Solida parcel,” Nevada Division of Water Resources said in the documents.

According to the order from the state, the U.S. Fish and Wildlife Service must return the water to its “historic path” traversing the church property, within 90 days, or face administrative fines up to $10,000 per day until corrective action is taken.

Failure to take corrective action will result in the matter being referred for additional action available to the state engineer.

Possible penalties for noncompliance can include payment of an administrative fine not exceeding $10,000 per day for each violation, replacement of not more than 200 percent of the water used, and payment of the costs of the proceeding, including investigative costs and attorney’s fees.

Source: State orders feds to return water to private ministry | Pahrump Valley Times

Church claims damages to property exceed $3 million | Pahrump Valley Times

The Ministerio Roca Solida, a founder of the Patch of Heaven church camp, filed a new takings claim in the U.S. Court of Federal Claims in Washington, D.C., saying that the damages to its property have grown over $3 million since the diversion of the creek on the property.

In a claim filed on July 12, the Ministerio Roca Solida alleges an unconstitutional taking of the 40-acre property located in the Ash Meadows National Wildlife Refuge and the loss of its vested water rights for the past 5 years.

In 2010, the U.S. Fish and Wildlife Service diverted the creek from the property where Victor and his wife Annette Fuentes, the leaders of the Ministerio Roca Solida had founded the Patch of Heaven church camp. The agency cited the need to preserve endangered species, including the Ash Meadows speckled dace that inhabit the refuge.

Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation Director Joe Becker, who represents the Fuentes’, said the Ministerio Roca Solida filed three takings claims since 2010. The first two claims were dismissed with prejudice, which means that the plaintiff still has the right to further litigate when certain conditions are satisfied.

“(In this case,) a takings claim is a claim against the federal government where the government has taken private property, purportedly for a public purpose, without paying just compensation as required by the Fifth Amendment to the U.S. Constitution,” Becker said.

Becker argued that since the diversion of the creek, the Fuentes’ land and its appurtenances have been flooded four times – the type of flooding that had never occurred before.

“Because of the Department of Fish and Wildlife’s actions more than five years ago, less and less rainfall now results in greater and greater flooding,” Becker said.

Erosion from repeated floods has carved large swaths of washes on the 40-acre property, according to the documents.

“And, because of the federal government’s dangerously negligent construction of the channel — never engineered to accommodate any rain or runoff waters — the damage has been compounding. A mini-grand canyon now cuts through what was once lush wetlands, and the significant improvements made to structures and the land for the benefit of young campers are being undone with each recurring flood,” Becker said.

A complaint stated that the Ministerio Roca Solida now finds it “highly problematic” to make its camp available to groups who have historically used the facilities, because less rain results in a greater likelihood of more severe flooding and more severe flood danger.

Becker said that the movement of the waterway and taking of the ministry’s vested water rights was done without the requisite Clean Water Act permits and in violation of FEMA requirements. Becker also said that the movement was done with no regard for the ministry’s religious use of the water for baptisms.

“Sadly, the damage done by this repeated flooding is now so severe, there’s no choice left but to hold the federal government accountable for a complete taking,” Becker said.

Source: Church claims damages to property exceed $3 million | Pahrump Valley Times

Amargosa church wants creek restored as property damage grows | Pahrump Valley Times

Joseph Becker, director of the Nevada Policy Research Institute Center’s for Justice and Constitutional Litigation and his client Victor Fuentes look at the map of the Ash Meadows National Wildlife Refuge where the Patch of Heaven church camp is located. On July 12, Fuentes filed a new takings claim, saying that the damages to its property have grown over $3 million. Daria Sokolova/Pahrump Valley Times

January 13, 2016 – 10:37 am

Victor Fuentes’ 40-acre property in the Ash Meadows National Wildlife Refuge turned from a sprawling oasis in the desert into a dried up patch of barren land in a matter of a mere few years.

In August 2010, the U.S. Fish and Wildlife Service diverted the creek from the property where Victor and his wife Annette Fuentes, the leaders of the Ministerio Roca Solida had founded the Patch of Heaven church camp, citing the need to preserve endangered species including the Ash Meadows speckled dace the that inhabit the refuge.

“Sometimes, I don’t sleep over this,” Victor Fuentes said recently, overlooking the grim picture from one of the church’s camp buildings.

The Fuenteses purchased the property in 2007 for $500,000 after they were drawn to its beauty. Victor Fuentes, a Cuban exile-turned a Christian pastor said they poured money and labor into the project, turning it into a gem in the desert complete with amenities and a babbling brook — its main treasure. Victor Fuentes still remembers the days when they were doing baptisms at the camp.

Affected by the excessive heat and deprived of water, the vegetation at the camp soon withered, leaving a thin line of dead of trees near where the creek used to be. A flock of Canadian geese and other birds that had been attracted to water don’t come to the Fuentes’ property anymore. The only thing that grows along the perimeter of the church camp now is weeds.

Victor Fuentes describes the view outside the windows of his church camp as “depressing.”

The December 23, 2010 rainfall resulted in $86,000 damage to the property after torrents of water gushed across its perimeter when the channel built by the U.S. Fish and Wildlife Service wasn’t able to accommodate it. The property incurred additional damages when a heavy storm swept through southern Nye County in October 2015. The damage estimate is now close to $225,000.

On a recent tour through the property, Victor Fuentes surveyed the damage that had been wreaked by the last October flood. Cell phone videos recorded by Annette Fuentes show the floodwater rushing across the road leading to their property, something the Fuenteses claim wouldn’t happen if the direction of the creek hadn’t been changed.

Joseph Becker, Fuentes’ attorney who also serves as a director and chief legal officer for NPRI Center for Justice and Constitutional Litigation in Reno said the federal government had violated multiple constitutional rights in one swoop by diverting the creek away from the Fuentes property. After filing an administrative claim against the government in late 2011, they had to wait 13 months until the government acknowledged the filing and said it wouldn’t pay anything.

The case grew complex over the last four years, frustrating both Becker and the Fuenteses, who said that fighting a governmental agency in court has been a tough task. The seemingly simple case, as Becker put it, now involves several legal claims including negligence and free exercise violation.

“We (also) asked for injunctive relief to restore the land to what it was before, to put the water back,” he said.

Becker said they are now awaiting a decision from the Ninth Circuit Court of Appeals on whether former refuge manager Sharon McKelvey, who resigned upon being sued, may be held liable for damages to the church camp.

Christy Smith, project leader for the Ash Meadows National Wildlife Refuge and several other representatives declined to comment, citing a pending legal case.

Becker said they are also awaiting a decision from the Federal District Court on cross motions for summary judgment on the tort, free exercise and due process claims.

Becker also argued that the failure of the U.S. Fish and Wildlife Service to get the Clean Water Act permit and moving vested water rights away from the camp prior to diverting the creek constitute due process violations.

“In some ways, the reasons for doing what they did are legally irrelevant, but I do think they tell the story,” Becker said.

In a way, Becker said the Fuenteses are bearing the brunt of excessive government presence in Nye County where it controls more than 90 percent of the land.

Expert report conducted by Blaine Reely, a civil engineer and hydrologist regarding hydrologic impacts to private property said that the construction of the dam and the channel located north and east of the Fuentes’ property resulted in a significant change to hydrologic regime and character of the property.

“The USFWS, their consultants and contractors, did not follow reasonable standards of the industry during the planning, design, engineering and construction of the Carson Slough Diversion Channel project,” the report said. “Specifically, the USFWS failed to consider potential adverse impacts to the plaintiff’s property which resulted in flood damage, a continued increased risk of flooding and the potential for future loss of property as well as injury and/or loss of life to residents and visitors.”

Becker said he doesn’t charge Victor Fuentes legal fees as a nonprofit, yet he has to bill for their out-of-pocket expenses such as traveling to various courts across the country and filing fees. The figure is in the tens of thousands of dollars.

“Any amount of money that we have, we have to use it for the case,” Victor Fuentes said.

On July 22, 2014, Nye County officials passed a resolution that references the Fuentes case asking the director of U.S. Fish and Wildlife Services Dan Ashe to resolve the dispute by remitting damages and restoring surface waters to Ministerio Roca Solida’s church campgrounds.

In a follow-up letter on Jan. 5, 2016, Nye County commissioners said the agency’s conduct and action in Fuentes’ case caused many in Nye County to view federal management actions over land within the county and state with a “mixture of distrust and anger.”

“Nye County is perturbed and irritated that your agency has not only ignored us, but has also conspicuously dismissed and delayed owning up to and remediating the damages caused to Ministerio Roca Solida for almost five years,” the letter reads.

The Ash Meadows National Wildlife Refuge owns all of the bordering land around the Patch of Heaven. The Fuenteses are among a handful of people who still own properties in within the refuge boundaries that stretch across 23,000 acres.

History

Several maps that date back to the 1800s and 1900s show that the creek has always been on the land where the Fuentes’ property now stands.

Refuge officials cut off the water and moved it to a higher elevation in the name of historic restoration, but Becker argued that the action contradicts historical records.

“What they have done is they’ve cut off the water in the name of historic restoration even though there’s no history to indicate that ever happened, they moved it to a place where it’s never been to a higher elevation side of the church’s property and they made a channel that hardly accommodates a spring flow, let alone any heavy rain,” he said.

“There’s no history that where those buildings are has ever been flooded before until after they moved the water,” Becker said.

The U.S. Fish and Wildlife Service asserted that what they have do was to protect the endangered fish, but Becker claimed that in fact, the number of fish decreased as a result of those actions.

“It doesn’t seem like what they did had any benefit on the fish population at all,” he said.

Becker said they have done a lot of depositions, filed cross motions for summary judgement. They had a hearing on a cross motions for summary judgment in July 2015, but Victor Fuentes said he had been very frustrated with the dragging.

“Much has been done,” Becker said. “We have gone all the way up to Supreme Court on the takings issue, but they didn’t hear it yet. They may still do it.”

Future

The case has garnered attention over the years that the Fuenteses had been trying to prove in court that the brook belongs to their property. But Becker said it’s not unique as conflicts between government and individuals on property rights occur fairly often.

The reason the Fuenteses liked the babbling brook is because it served for meditational and recreational purposes and they wanted water for baptisms.

Without water, the property is worth significantly less, Victor Fuentes said, although they don’t have an estimate.

Now, if the government isn’t going to restore the property to how it was, then it’s resolved in a complete taking of the property, as Fuentes can’t operate a camp that is constantly subject to flooding, Becker said.

Since diversion of the creek, the amount of donations have diminished as did the number of groups visiting the church camp. Staying at the camp during the rain is now dangerous, Annette Fuentes said.

“Fortunately, the two times that this has happened, nobody’s been here. But when they bring them in the buses, they drop them off Friday night, they come back Sunday,” she said.

While the injunctive relief filed by Becker said the government needs to restore the watershed to where it was before, he said the price could be too high.

“It’s not really clear what will happen,” Becker said.

“If the water could be restored to its pre-August 2010 situation, we’d love to keep the camp, because this was their vision. It’s not clear that that can still physically be done,” he added.

Becker said he fears that if the restoration costs are going to be high, the government may just file a condemnation action and take the property. In that case Becker said the government should pay its market value.

Ultimately, Fuentes is also fighting to get reimbursement for his legal expenses.

“We are trying to get justice. If they are ultimately going to take it, then they should also pay for the damages that they caused in the meantime, the loss of use in the meantime and all the costs that we’ve incurred trying to ensure the justice is done,” Becker said.

But the property also has a lot of emotional value, as Fuentes said his family and members of the church and the community “poured their soul” into the place.

“Not only our labor, but our own finances, we put it over here to make this happen,” he said.

“That was our vision.”

Source: Amargosa church wants creek restored as property damage grows | Pahrump Valley Times