By Daria Sokolova Pahrump Valley Times – December 2, 2016 – 10:09 am
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.