Ellen M. Gilmer, E&E News reporter
The latest clash between federal land managers and Sagebrush Rebellion-style critics played out in tense but buttoned-up proceedings yesterday in a quiet courtroom in Washington, D.C.
There, government lawyers urged the U.S. Court of Federal Claims to toss a lawsuit from Nevada landowners who say a federal restoration project stole their water and flooded their land.
At issue is Patch of Heaven, a Christian camp on private land nestled within the Ash Meadows National Wildlife Refuge.
The Nevada church Ministerio Roca Solida bought the 40-acre site in 2006 for $500,000. At the time, a stream called the Carson Slough flowed across the property, feeding plants and a small pond and sometimes serving as a site for baptisms.
In 2010, the Fish and Wildlife Service, which manages all of the surrounding land, rerouted the channel in a restoration project to help the Ash Meadows speckled dace, an endangered fish that lives in the area’s warm springs.
Annette and Victor Fuentes, who own Ministerio Roca Solida, say the government owes them compensation for eliminating the stream from their property — except for a trickle of water the site claimed through a state permit — and rerouting it in a way that causes repeated flooding on another part of the parcel.
The couple teamed up with the conservative Mountain States Legal Foundation and attracted the support of Westerners opposed to federal land management, including the Bundy ranching family infamous for its conflicts with government agencies.
Speaking at a boisterous rally at Patch of Heaven last year, Ryan Bundy offered to demolish the FWS project himself (Greenwire, April 23, 2018).
The mood was decidedly tamer during yesterday’s hearing, where just five spectators — including one reporter and one court employee — listened to more than two hours of technical arguments involving property rights, water law and hydrology.
Judge Elaine Kaplan must decide whether to grant the government’s motion for summary judgment rather than allowing the case to proceed to trial.
The church’s claims are twofold: that the government’s elimination of streamflow on the land without payment amounted to an unconstitutional taking of vested water rights, and that the diversion project’s contribution to flooding was also a taking.
Justice Department lawyers yesterday disputed both claims. The government contends the landowners are not entitled to the water rights they claim, and, in any case, that issue should be adjudicated by the state of Nevada, not the Federal Claims court.
The two lawyers from DOJ’s Environment and Natural Resources Division also attempted to poke holes in the Fuenteses’ flooding claims, dismissing the plaintiffs’ expert testimony as unsubstantiated and noting that the broader area is prone to flooding.
“Plaintiffs would like this court to believe … that there was never flooding on that part of the property,” DOJ attorney Davené Walker said, adding that the area is part of a flood zone and has a well-documented history of such events.
Walker explained that to win a takings claim against the government for flooding, the plaintiff must show that FWS caused the flooding and intended or expected it to happen. Ministerio Roca Solida has offered no evidence to support either prong, she said.
Mountain States Legal Foundation lawyer Zhonette Brown, in turn, questioned the evidence presented by the government.
Kaplan, an Obama appointee, agreed with the government that Ministerio Roca Solida’s expert testimony appeared “a little thin,” but she questioned whether it would be appropriate to resolve the case in favor of the United States at this stage, without allowing the church to make its case at trial.
She also empathized with the Fuenteses on their loss of the stream, regardless of whether FWS’s project was lawful.
“I won’t say the word ‘screwed,'” she said of the landowners, eventually landing on the word “injured.”
The judge added that she’s never heard a water rights case or a flooding case before and will need some time to consider the competing evidence.
“Your Honor’s more than welcome to come out to the property,” Brown said, “so you can make your own conclusion.”
The History, Many Times, is forgotten at the expense of the locals and their Children. Just Ask the Fuentes about the Patch of Heaven
By Henry BreanFebruary 17, 2019 – 12:26 am
BEATTY — Environmentalists are taking over this faded mining town 120 miles northwest of Las Vegas, but many locals don’t seem to mind.
The Nature Conservancy is now the largest private landowner in this part of Nye County, where the national environmental group is working with local residents to recast the area as a preserve for sensitive desert wildlife and a destination for outdoor enthusiasts.
The conservancy closed on its latest acquisition Wednesday: a working, 900-acre cattle ranch at the headwaters of the Amargosa River north of Beatty that could one day become a living laboratory for conservation work, though ranching will continue.
The $2 million purchase more than doubles its already extensive holdings along the lush ribbon of riparian habitat known as the Oasis Valley.
“I don’t have a concern with that like I might have 10 years ago, because they’ve demonstrated they’re willing to work with us. That’s important to us,” said David Spicer, one of the conservancy’s neighbors near Beatty.
Spicer is a rancher, miner and businessman who has lived in the Beatty area nearly all his life. He’s also the leader of a local, decades-long campaign to protect the native Amargosa toad and keep it off the endangered species list.
He said the Nature Conservancy has been an important partner from the beginning.
“We’ve had a relationship with them for more than 20 years now,” said Spicer, who heads a nonprofit of his own: Saving Toads thru Off-Road Racing, Ranching & Mining in Oasis Valley or STORM-OV for short.
As a result of the grassroots effort in Beatty, much of the rare amphibian’s habitat along the river has been protected without cutting off access to the land or burying local residents in red tape, Spicer said. The toad population is now considered healthy and stable, with numbers in the thousands.
‘The crown jewel’
Through purchase or donation, the conservancy has acquired 8 parcels totaling more than 1,600 acres in and around Beatty since 1999.
The group has mostly avoided the sort of backlash environmentalists often face in rural Nevada by being a good neighbor, said Ryan Tweney, who retired to Beatty 14 years ago and now chairs the town’s library board.
“The Nature Conservancy has been a huge help to the town in terms of preserving what we need to preserve,” he said. “I think it’s great.”
And it doesn’t hurt that the nonprofit organization insists on paying taxes on its holdings, the way any other private landowner would, he said.
The conservancy’s newest property in the area could be the most important, said John Zablocki, Southern Nevada conservation director for the group.
Tucked away behind the hills northeast of U.S. Highway 95, the 7J Ranch is dotted with ponds, wet meadows and rich pastureland fed by more than a dozen springs. The ranch is bracketed by Joshua trees on one side and sagebrush on the other, marking the transition zone between the Great Basin and the Mojave Desert.
Zablocki calls it “the crown jewel of the Oasis Valley.”
Len Warren, Amargosa River project manager for the conservancy, has lots of ideas for the 900-acre spread. As he walked around the property on a recent Friday, he pointed out where native trees could be planted to to provide bird habitat or where a pond stocked with bass might be converted into a safe haven for the Amargosa toad and endemic springfish like the Oasis Valley speckled dace.
“Our dreams are for it to be turned into an example of how you balance livestock grazing, environmental research and habitat restoration,” Warren said. “We don’t have all the answers yet.”
Zablocki pictures the ranch as a research station, where scientists from the conservancy and elsewhere can conduct real-world experiments on private land without having to go through lengthy federal regulatory reviews.
“We could try out solutions on our own property,” he said.
Home on the range
Some things won’t change at the 7J.
Zablocki said the property will continue to house a livestock operation, with the previous owner running cattle there under a lease with the conservancy.
Longtime Nevada rancher Hank Brackenbury said he bought the 7J about four years ago. “Poverty” is what persuaded him to sell the place to the environmental group, he said.
“I had a pretty big ranch payment,” he said.
This way, he gets to keep raising beef cattle on the land, and the Nature Conservancy gets a crash course in ranching from someone who knows a thing or two.
“It’s all here. The potential is all here,” Brackenbury said. “It’s been a good ranch for a lot of years, and if it can continue to be a good ranch, that’d be good.”
The purchase price included grazing rights on 280,000 acres of federal land surrounding the ranch, much of it unfenced and bordered by a massive Air Force bombing range to the east. The property is also within sight of Yucca Mountain, proposed repository site for the nation’s high-level nuclear waste.
“I tell everybody, ‘I live closer to Yucca Mountain than anyone. I’ll be the first to glow,’” Brackenbury said.
There are about 75 head of cattle on the property right now, he said, but the range can handle more than twice that amount when conditions are good.
Zablocki said the conservancy’s new pastures also could serve as a regional “grass bank,” providing relief forage for other Nevada ranchers stricken by wildfire or drought.
“We actually need grazing as a rangeland management tool,” he said.
Greener pastures ahead
Zablocki said this should be the conservancy’s last big purchase in the Beatty area for a while.
“Our goal was never to buy up the whole town,” he said. “We want whatever we do to be a benefit for this community.”
To that end, the organization is working with a prominent local business owner on a dog park and trail system that will lead visitors down to the Amargosa River from the edge of his parking lot. Warren and company also have plans for more boardwalks, signs and native trees at the Torrance Ranch Preserve, the conservancy’s oldest habitat restoration project in the area.
The broader goal, one shared by the conservancy and locals like Spicer, is to find something new to sustain a once-proud hard rock mining town that’s fallen on hard times. Ecotourism could be the answer.
Warren said Beatty, which is home to fewer than 1,000 people, already serves as a gateway community of sorts for nearby Death Valley National Park.
“We want to entice people to stay a little longer and come back again,” he said.
Spicer has invested heavily in that idea. Over the past five years, he has developed more than 50 miles of mountain bike trails on his ranch and the surrounding public land, and he’s taken to hosting events ranging from Boy Scout campouts to scaled-down versions of Burning Man.
Ultimately, he sees what he’s doing as a way to help the environment and the economy in his beloved valley.
“At Patch of Heaven, we are very excited to learn that the … former President of Mountain States Legal Foundation, the folks representing us in our litigation with [U.S. Fish and Wildlife Service], William Perry Pendley, is being considered as a Nominee for Secretary of the Interior by President Donald Trump,” Annette Fuentes and Victor Fuentes wrote on their website.
The couple own Patch of Heaven, a 40-acre Christian camp that sits inside the boundaries of the Ash Meadows National Wildlife Refuge in Nevada. The church is embroiled in a long-running dispute with the federal government over a water diversion project (Greenwire, April 23, 2018).
“Mr. Pendley is very aware of the struggles in the West and well qualified to fill that spot,” they added. “We have created the petition in order to provide to President Trump showing our support for his nomination of William Perry Pendley, for Secretary of the Interior.”
Anti-government activist Doug Knowles — who publishes the website It Matters How You Stand, which tracks news on the “Grass Roots Patriot Movement” — also sought to boost Pendley’s name with advertisements purchased on Facebook.
If nominated and confirmed, Pendley would become the third individual associated with Mountain States Legal Foundation to lead the Interior Department.
The Colorado-based law firm once employed James Watt, who went on to head Interior in the Reagan administration, and Gale Norton, who served in the George W. Bush administration.
Pendley, who served as a Marine in the Vietnam War before becoming a Capitol Hill aide — working for former Wyoming Sen. Cliff Hansen (R) and what was then the House Interior and Insular Affairs Committee — helped to shepherd Watt’s nomination through his Senate confirmation.
Pendley then joined the Interior Department as deputy assistant secretary for energy and minerals (Greenwire, Jan. 2, 2014).
He did not respond to requests for comment for this article.
Mountain States Legal Foundation’s executive vice president, Cristen Wohlgemuth, did not respond to a request for comment on Pendley’s departure from the foundation.
Attorney Christian Corrigan, who represents Annette and Victor Fuentes in their lawsuit, confirmed Perry is no longer with the foundation.
“His future plans are still in progress,” Corrigan wrote in an email. “Personally, I wish him the very best, whatever he does next.”
Perry had been listed as an attorney for cases the foundation is involved in as recently as last Friday, when he was formally withdrawn from a lawsuit over President Trump’s reduction of the Grand Staircase-Escalante National Monument in Utah (Greenwire, Jan. 14).
“Please take notice that … William Perry Pendley hereby withdraws his appearance in the above-captioned matter as counsel for Defendant-Intervenors Garfield County, Utah and Kane County, Utah. The basis for this withdrawal is that Mr. Pendley is no longer employed with Mountain States Legal Foundation,” court documents state.
No statement on Pendley’s departure is available on the Colorado group’s website, although an archived website for Montana’s Fairfield Sun Timesindicates the foundation issued a press release in late December.
“The Board is very grateful for Perry’s decades of service,” CEO and board Chairman Roy Cohee said in the statement. “Perry’s passion and energy have led the foundation to prosper for nearly thirty years. His love of liberty will live on in the important work MSLF does. We wish him the very best in all that lies ahead.”
For a guy with a vague job title, State Engineer Jason King has been involved in some pretty important decisions for Nevada.
During his eight years as the state’s top water regulator, he banned new residential wells in Pahrump, blocked water development for the long-stalled Coyote Springs master-planned community and twice ruled on controversial plans to pipe groundwater to Las Vegas from eastern Nevada.
The 57-year-old King retired Friday after a 28-year career as a state employee, including the last eight as state engineer and administrator for the Nevada Division of Water Resources.
Bradley Crowell, director of the Nevada Department of Conservation and Natural Resources, has appointed King’s current deputy administrator, Tim Wilson, as acting state engineer.
Wilson has been with the Division of Water Resources since 1995. He will inherit several major ongoing water issues, including pending court challenges of King’s most recent actions regarding Pahrump, Coyote Springs and the Southern Nevada Water Authority’s in-state pipeline plans.
Though it might not be obvious from the title, the state engineer is responsible for the appropriation and regulation of all water within the state, except for the Colorado River. The position includes oversight of water well drilling, dam safety, water planning and floodplain management.
In 2012, King granted the water authority some of the groundwater it wants to tap in rural Clark, Lincoln and White Pine counties. Then last year, he rescinded those same water rights because of a 2013 court ruling he said he disagreed with but was legally bound to follow.
That decision is now under appeal, as are two other contentious orders he issued since 2017 barring new domestic groundwater wells in Pahrump and prohibiting more pumping by the developers of Coyote Springs. In both of those cases, King said he was acting to protect existing well owners and water levels in aquifers he considered to be severely over-appropriated.
King was born and raised in Albuquerque, New Mexico, where he earned a degree in civil engineering in 1986. He moved to Las Vegas in 1988 and went to work for the Division of Water Resources in 1991, after three years of structural design work in support of underground nuclear testing at what was then known as Nevada Test Site.
When interviewed for a profile in 2011, he told the Review-Journal that he didn’t know anything about Nevada water law when he took the job, but he came to “live and breathe” the subject as he rose through the division’s ranks to state engineer in 2010.
In the same statement, Crowell praised King for his “extraordinary service to Nevada” and for “addressing complex issues head-on with perseverance and integrity.”
Media Backgrounder: Ministerio Roca Solida v. United States
U.S. Fish and Wildlife Service Steals Water from Church Camp, Then Attempts to Flood Them Out
Introduction: “Patch of Heaven” Church Camp
When Pastor Victor Fuentes escaped Fidel Castro’s dictatorship for the United States, he expected to find the Land of the Free, where, unlike communist Cuba, the government respects and protects private property. Unfortunately, the United States Fish & Wildlife Service (“FWS”) ruined the American Dream for him and his congregation.
Ministerio Roca Solida Iglesia Cristiana is a small, mostly Spanish-speaking, congregation in Las Vegas.1 Led by Pastor Fuentes and his wife Annette, the church has been fighting for seven years to stop FWS from repeatedly flooding its camp located in rural Nevada and to return its water.
The church’s camp is on a serene, 40-acre parcel in Nye County, Nevada, surrounded entirely by the Ash Meadows National Wildlife Refuge. After purchasing the property in 2006, Pastor Fuentes and a group of volunteers built new buildings and improved existing structures on the property with their own hands, expending more than $700,000 for materials, septic systems, and other improvements. The camp was renamed “Patch of Heaven.”
Tragically, FWS turned Patch of Heaven into a living hell.
Since at least the 1880s, the property was served by two spring-fed streams. In addition to watering the camp’s wetlands and filling its swimming pond, the streams supplied and served as baptismal waters of special significance to the church. It provided, “an oasis soothing to the soul and an ideal setting upon which to reflect upon God and His word,” says Pastor Fuentes.
Ministerio Roca Solida also used Patch of Heaven for retreats and youth camps. In particular, Pastor Fuentes brought troubled youths from Las Vegas to the camp to help turn their lives around, as well as adults suffering from drug and alcohol addiction.
Enter, the U.S. Fish and Wildlife Service. Without obtaining required the permits from the
U.S. Army Corps of Engineers, or following the mandates of the National Environmental Policy Act, FWS undertook a project which diverted the streams around the camp from their long historical route through the Patch of Heaven. FWS justified its actions under the pretense of “stream restoration” and creating faster moving water for a minnow called the speckled dace.
Less than three weeks after a diversion channel was constructed, on December 22, 2010, the newly re-routed waterway jumped its banks and sent a torrent of mud and water across Patch of Heaven, severely damaging buildings and covering the property with a layer of slimy muck. Estimated property damages from the flood were in excess of
$90,000. Despite FWS’s initial argument that the flood was an unpredictable 100-year occurrence, the Camp flooded three more times in a short period, bringing the property damage total to over $225,000.
In addition to damaging the property through the flooding, the diversion project significantly reduced the property value, not only through loss of the historical desert spring-fed streams through the property, but also because of the constant threat of flooding that resulted from the negligent work on the diversion project. Because of FWS’s faulty construction of the diversion channel, which was never engineered to accommodate rain or runoff waters, a mini-Grand Canyon now cuts through what was once lush wetlands.
Not only does FWS refuse to pay for the damage it has caused or restore the stream so that the church can enjoy its water rights, but it blatantly refuses to fix the diversion channel. After four floods, the church is under constant siege, making any effort to rebuild or restore the damage futile.
What makes this tragedy even worse is that FWS’s refusal to fix its mistakes is not due to bureaucratic incompetence or red tape. As all-too-many property owners in the West understand, when the federal government doesn’t want you as its neighbor, it will force you out by any means necessary.
Mountain States Legal Foundation is now representing Ministerio Roca Solida to hold the federal government accountable for its unconstitutional theft of the church’s property.
The Incredible Journey of Pastor Victor Fuentes
Pastor Victor Fuentes’ remarkable story is one of despair, hope, and redemption. It is a true testament to the power of faith and further evidence that the opportunities available
in the United States of America offer the chance to change lives. Together with his wife Annette, he has fought to protect his church from his own government.
On February 21, 1991, in an attempt to escape the Fidel Castro dictatorship and secure medical help for his ailing Cuban mother, Victor Fuentes swam nearly seven miles from Santiago, Cuba, to Guantanamo Bay Naval Base to secure political asylum in the United States. Political asylum was granted to Mr. Fuentes, and he was placed in Las Vegas, Nevada. Not long thereafter, in exchange for promises to secure his ailing mother’s safe transport from Cuba, Mr. Fuentes became involved with an illicit drug distribution scheme operated by former Cuban nationals in the Las Vegas area. Rather than landing his ailing mother in the United States, Pastor Fuentes involvement in the drug distribution scheme landed him in federal prison for a period of three years. It was, however, during this time, that Mr. Fuentes was exposed to religious materials for the first time (having been denied such freedoms in Castro’s Cuba), and turned his life around in a most dramatic way, even while still in federal prison.
Upon his release, Mr. Fuentes became an ordained minister and used his remarkable story change lives—initially as a youth minister in Las Vegas, and eventually, with the assistance of his wife, Annette, he formed Ministerio Roca Solida in Las Vegas. Ministerio Roca Solida grew to a congregation of more than 70 churchgoers. In 2006, a parishioner left the church $500,000 from her estate, which it used to purchase Patch of Heaven.
Despite the wicked treatment his government has forced him and his church to endure, Pastor Fuentes refuses to give up. When the church was out of funding to pay its legal bills, Pastor Fuentes took a job at a local dairy to raise money.
In the words of Pastor Fuentes, “I am an immigrant from Cuba who risked death to escape Castro’s regime … only to be in a country overrun by a federal government that reminds me of the horrors from which I fled.”
The Legal Argument: Theft by Flooding
The U.S. Fish & Wildlife Service is not simply being a bad neighbor. It is illegally and unconstitutionally stealing the church’s water and its protected property rights.
The Fifth Amendment to the United States Constitution provides, in pertinent part, “nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend V. Known as the “Takings Clause,” this entitles property owners to compensation when the government takes private property for roads, schools, and other public purposes. The Fifth Amendment also prevents the government from flooding private property without compensating property owners for the invasion.
Generally, when the government wants property for public use it institutes “condemnation” proceedings. The U.S. Supreme Court, however, has recognized that not all takings involve this type of official action. When a government action or regulation interferes with private property, it is known as an “inverse condemnation.” According to the Supreme Court’s 2005 decision in Lingle v. Chevron U.S.A. Inc., a physical taking generally occurs by “a direct government appropriation or physical invasion of private property.”2
The Supreme Court has a long history of recognizing “the principle that the destruction of privately owned land by flooding is ‘a taking’ to the extent of the destruction caused.”3 The Supreme Court has recognized that “regularly recurring flooding [gives] rise to a takings claim no less valid than the claim of an owner whose land was continuously kept under water.”4 For there to be a taking, the flooding must only be “a direct, predictable result of government action.”5
Simply put, if the government creates and then refuses to fix a condition which causes the repeated and predictable flooding of private property, it has committed a “taking” in violation of the Fifth Amendment and owes the church “just compensation.”
History of the Case
In 2012, with the assistance of a local organization called the Nevada Policy Research Institute, the church first filed its lawsuit against the federal government for damages. Due various procedural quirks, it had to file two lawsuits to assert all of its claims, one in the U.S. District Court for the District of Nevada, and one in the U.S. Court of Federal Claims (“CFC”). The church fought a jurisdictional question regarding the two separate lawsuits for almost 5 years until the U.S. Supreme Court denied review and the church was forced to file its current lawsuit in the CFC. In the meantime, the camp suffered three subsequent floods after the initial disaster.
In late 2017, the Nevada Policy Research Institute lost funding for its litigation center, and Ministerio Roca Solida was left with substantial legal fees and expenses. Recognizing the importance of the issues involved, Mountain States Legal Foundation took over representation of Ministerio Roca Solida. The church has had the strong support of the local community in Pahrump, Nevada.6
About the Legal Team
Ministerio Roca Solida is represented by Mountain States Legal Foundation Attorney Christian B. Corrigan. A native of Wichita, Kansas, Christian clerked for Justice Caleb Stegall on the Kansas Supreme Court. Prior to joining MSLF, Christian worked at the Institute for Justice in Arlington, VA and the Federalist Society for Law & Public Policy Studies in Washington, D.C. He is a graduate of the University of Pennsylvania and the University of Kansas School of Law.
Mountain States Legal Foundation is a nonprofit, public-interest law firm that defends constitutional liberties and the rule of law. MSLF is dedicated to the preservation of the right to own and use property, limited and ethical government, and the free enterprise system.7 MSLF attorneys have been active in litigation opposing governmental actions that result in takings of private property without just compensation.8 MSLF has been victorious in five of its six appearances before the Supreme Court of the United States.9
For More Information Contact:
Christian B. Corrigan, Esq. Mountain States Legal Foundation 2596 S. Lewis Way
Lakewood, CO 80227
303-292-2021, Ext 17
2 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (citations omitted).
3 United States v. Kansas City Life Ins. Co., 339 U.S. 799, 809 (1950); United States v. Lynah, 188 U.S. 445, 470 (1903) (“Where the government by the construction of a dam or other public works so floods lands belonging to an individual as to substantially destroy their value, there is a taking within the scope of the 5th Amendment.”).
4 Arkansas Game & Fish v. United States, 568 U.S. 23, 32 (2012).
5 Moden v. United States, 404 F.3d 1335, 1343 (Fed. Cir. 2005).
6 Nye County Officials Step in on Patch of Heaven Struggle, Pahrump Valley Times, April 12, 2018, https://pvtimes.com/news/nye-county-officials-step-in-on-patch-of-heaven-struggle/amp/
8 See, e.g., Brandt v. United States, 710 F.3d 1369 (Fed. Cir. 2013); Laguna Gatuna, Inc. v. United States, 50 Fed. Cl. 336 (Fed. Cl. 2001); Mountain States Legal Foundation v. Hodel, 799 F.2d 1423 (10th Cir. 1986); Dolan v. City of Tigard, 512 U.S. 374 (1994) (amicus curiae); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (amicus curiae); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008) (amicus curiae).
9 cable Trust v. United States, 572 U.S. 93 (2014); Adarand c., v. Pena, 515 U.S. 200 (1995).
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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.”
11-29-2018 Convincing the Nye County Sheriff that Water is Real Property and can be stolen and it is an actual theft and not just a civil dispute.
By Robin Hebrock Pahrump Valley Times – April 13, 2018 – 7:00 am
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.
“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.’”
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.”
By Daria Sokolova Pahrump Valley Times – March 8, 2017 – 7:00 am
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.