Let it flow: Camp owners restore stream, amid ongoing legal challenge
By Robin Hebrock Pahrump Valley Times
August 4, 2022 – 12:49 pm
Victor and Annette Fuentes have officially started the process of reopening the Carson Slough following years of waiting for a federal agency to do as it was ordered.
Finally, at their limit of patience, the husband-and-wife team, who own and operate the Patch of Heaven Christian Camp in Nye County, hosted a press conference of sorts on Saturday, July 30 to celebrate their decision to restore their water themselves.
Patch of Heaven is a 40-acre parcel of private land located within the Ash Meadows National Wildlife Refuge, which is administered by the U.S. Fish and Wildlife Service. When Victor and Annette first purchased the property, it was a lush oasis in the desert, with plenty of water flowing in channels running through the site and filling ponds used for camp activities.
That all changed in 2010 when Fish and Wildlife altered the Carson Slough, diverting the water around the Fuentes’ property and turning it into a dust bowl. In addition to the lack of water, the Fuentes’s then had to deal with unusual flooding occurrences that they said were a direct result of the alteration of the slough.
With no alternative, the two took legal action that resulted in a years-long battle between the Fuentes’s and Fish and Wildlife. That conflict seemed to have come to an end in 2017 when the federal agency was ordered to return the water to which the Fuentes’s had a senior vested right. But Fish and Wildlife never took action to restore the water so Victor was preparing to take a tractor out and do it himself.
Victor and Annette were joined by several dozen supporters on July 30 and the gathering at the Christian camp opened with an invocation.
“We come before you with humbleness in our hearts to ask you for protection for today, to ask you to give us the ‘OK’ for today, Lord Jesus, and I thank you for each and every one of my brothers and sisters, members of the community, who have showed up here today in support of the right of Patch of Heaven,” Victor prayed.
Those assembled for the event then stood up and faced the American flag for the recitation of the Pledge of Allegiance, after which both Nye County Sheriff Sharon Wehrly and Nye County Commissioner Debra Strickland were invited to speak.
Wehrly read from documentation detailing the Fuentes’ right to nearly seven acre-feet of water from the Carson Slough, remarking, “So that’s his permit to have the water come through his property. And it seems that he has been doing everything that he possibly can to get that done.”
Next, Wehrly read a document outlining the warning notice sent to the U.S. Fish and Wildlife Service, in which the Nevada state engineer had determined that the federal agency was violating the law through its action of diverting the flow of the Carson Slough. In that letter, Fish and Wildlife was ordered to cease the full and complete diversion of the surface water that should move through the Patch of Heaven property. That order came with the possible penalty of a fine of up to $10,000 per day per violation, as well as other consequences, none of which have materialized.
Strickland stepped up to the microphone following Wehrly and she was evidently fired up about the reason everyone was assembled that morning.
“We have rights, and the rights have been taken from this man,” Strickland declared, indicating Victor. “Whiskey is for drinking and water is for fighting. You know it, it’s been like that since the beginning of time. Nothing has changed here. We’re still fighting for the water!
“When did the feds decide that all things belong to them? No way, Jose, ain’t going on no longer,” Strickland continued. “This is the time… And Victor, Annette, you are brave people and we are so proud of you for that. Thank you for the opportunity to be here today to watch you take back your right.”
At that point, Victor requested that Wehrly call Fish and Wildlife to ask a representative of that office to come down to the camp and talk over the situation. “Let’s reconcile this, let’s talk. We want to see their response,” Victor announced.
Fish and Wildlife, however, was not amenable to going to the camp but a representative did invite the Fuentes’, Strickland and Wehrly to their office. The discussion, however, apparently ended without the reconciliation that Victor was aiming for. Not deterred from his mission, he and Annette returned to their land and Victor headed out to the area that had been backfilled to divert the Carson Slough, to begin the task of reopening the waterway to its historic flow path.
This is no simple matter, either. It will take time and patience for the couple to safely and successfully complete the operation but they fully intend to see the historic flow path of the Carson Slough reinstated in the coming days.
Contact reporter Robin Hebrock at firstname.lastname@example.org
We are asking for as many people as possible to download the document “WRITTEN COMMENT TO INTERIM ORDER #1330” and not only sign your support but give your friends and Neighbors an opportunity to sign as well. All Responses must be received at the following address by July 5th to be considered.
Mr. Adam Sullivan
State of Nevada Division of Water Resources
901 S. Stewart St. #2002
Carson City, NV 89701
RE: WRITTEN COMMENT TO INTERIM ORDER #1330
To the governing and regulating agencies of water rights in hydrographic Basin 230:
Order #1330 will place even more onerous restrictions over a more expensive geographic area on the movements of water rights (changes in point of diversion & place of use) within Basin 230.
These restrictions are being placed on water right movements with the stated goal of protecting the Devil’s Hole Pupfish, by ensuring that the water level in Devil’s Hole doesn’t drop more than 2. 7 feet below the steel bolt.
But, the historical record (see attached Graph) does not support the need for further restrictions on the use of water in Basin 230. In fact, the water level in Devil’s Hole is higher today than it was in 1980 (over 40 years ago) despite the overall increase in groundwater pumping in the Amargosa Farms area since that time.
Rather, this graph supports the contention that groundwater pumping in the Amargosa Farms area does not affect the water level in Devil’s Hole, which is situated on the other side of a gravity fault and whose water comes from a distinct, separate source.
Order #1330 is an ill-conceived and ill-crafted attempt to be a solution to a problem that does NOT exist.
Order #1330 casts a pall of uncertainty over the owners of water rights in Basin 230 by subjecting any request to move water pumping and use (other than domestic wells) to the approval or denial by an unelected bureaucrat depending on their interpretation and application of the continually evolving and changing Death Valley Regional Ground Flow Model.
This Nevada Department of water Resources’ overreach is resulting in the effective diminishment and “taking” of these private property rights from their lawful owners, resulting in the curtailment of economic growth and opportunities for the residents of Amargosa Valley and Nye County.
Order #1330 needs to be re-crafted to support and enable the lawful use of water rights by their holders, freeing them from the capricious, arbitrary, and discriminatory whims and decisions of unelected bureaucrats without due process.
Given the above facts, WE, the undersigned, hereby respectfully request that Order #1330 be sent “back to the drawing board” to properly reflect the facts of the Devil’s Hole water level and solicit additional input from residents, boards, ( i.e. Nye County water Board) and local governing entities of Amargosa Valley and Nye County, to ensure that the full scope of the issues and adverse impacts to the local residents and water right holders have been adequately identified, quantified, and are taken into consideration in the final Order #1330.
Response to INTERIM ORDER #1330
Actual INTERIM ORDER #1330
A church congregation in rural Nevada is continuing its 9-year legal fight over water rights with government agencies.
Ministerio Roca Solida, a small church located in Pahrump, Nevada, in 2006 purchased a 40-acre plot of land in the Amargosa Valley. The congregation used the property, which included a stream running through it, for baptisms and church retreats – “an oasis,” as Pastor Victor Fuentes called the property.
But in 2010 the church’s “oasis” changed when the the U.S. Fish and Wildlife Service diverted a part of the same stream on nearby federal land. USFWS said the diversion was part of a restoration project that could help an endangered fish.
That diversion has caused flooding on the church’s property whenever it rains significantly, causing damage to the property, attorneys for the church say. They also claim that USFW diverted the water without doing the proper environmental assessments.
“It’s completely changed what [Ministerio Roca Solida] are able to do out there – their ability to help people and minister to people,” said Cody Wisniewski, an attorney for the Colorado-based Mountain States Legal Foundation, which is handling the case.
A federal court ruled that the water diversion and subsequent property damage didn’t constitute a taking or property, but allowed the church’s case to proceed on grounds of the flooding. Lawyers for the federal agency have argued that the water diversion didn’t cause the flooding on the church’s property and that flooding was not “reasonably foreseeable” when the agency began the restoration project.
The churchalso made its case in an administrative hearing last week before the Nevada State Engineer to establish water rights on its property.
While the federal court said the church doesn’t have established water rights, Wisniewski says the Nevada State Engineer can still determine water rights within the state.
The state’s engineer previously determined that the church had a plausible water right, but the church would like that right to be changed to allow for different usage.
The church submitted a proof of vested water rights that proves the property benefited from water use for irrigation prior to 1905, and asked the Nevada State Engineer to change its water right from irrigation uses to domestic and recreational uses.
“At the end of the day, the Nevada State Engineer has the ability to determine whether or not our claim is plausible,” Wisniewski said. “If it is plausible, then they can approve the change application, which would then require under Nevada state law a certain flow of water be delivered back to the church camp.”
It will likely be several months before the engineer makes a decision, Wisniewski said.
We now have a Date for our appeal hearing on our water rights claim before the Nevada State Engineer. We are excited to finally get here. The results of this hearing will have a significant impact on our Federal Court Case.
Please, if at all possible join us and show your support for getting this corrected.
PLEASE TAKE NOTICE that pursuant to the authority set forth in NRS § 533.365, the State Engineer hereby sets a hearing to consider the matter of protested Application 88535 to commence at 9:00 a.m., on Tuesday, December 3, 2019, continuing through Wednesday, December 4, 2019, if necessary, to be held at the Nevada Division of Water Resources, Tahoe Hearing Room, 2nd Floor, 901 S. Stewart Street, Carson City, Nevada.
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.”
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.”
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.”