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 [email protected]
By Robin Hebrock Pahrump Valley Times
June 16, 2022 – 11:09 am
A more than decade-long battle between the owners of Patch of Heaven Christian Camp and U.S. Fish and Wildlife seems no closer to a resolution but Nye County commissioners are hoping that a letter from the county to the state engineer’s office might finally prompt some forward movement.
During its Tuesday, June 7 meeting, the Nye County Commission approved that letter, to be sent to Adam Sullivan, Nevada state engineer with the Division of Water Resources.
David McDonald, an attorney representing Ministerio Roca Solida Inglesia Cristiana, of which Patch of Heaven is a part, thanked the commission for addressing the item as well as for the past support shown for the owners of Patch of Heaven, the Fuenteses.
“For those of you who may not be familiar with Victor and Annette, and their struggles to protect their church camp from the federal government, about 12 years ago the U.S. Fish and Wildlife Service decided that it would be better for the environment if the stream that had run through the Patch of Heaven parcel since time immemorial was instead rerouted around the Fuentes’ property a few hundred feet to the east,” McDonald said that morning.
That stream, located inside of the Ash Meadows National Wildlife Refuge, used to flow down what is called the Carson Slough. When Fish and Wildlife diverted the water, the Fuentes’ property went from a lush oasis in the desert to a barren landscape.
“Now, I don’t have time to discuss the litany of abuses committed by the Fish and Wildlife Service here but in addition to stealing the church’s stream and turning the property into a miniature dust bowl, Fish and Wildlife has refused to provide for the delivery of vested waters rights that the church is legally entitled to under order of the state engineer, and is blatantly ignoring their obligations under that order,” McDonald stated.
He noted that his clients had filed a notice of violation with the state engineer’s office in April of 2021 but as of the June 7, 2022 commission meeting, that violation was still pending.
“The Nye County Board of Commissioners sent this communication to encourage the Division of Water Resources to pursue adjudication of vested water right No. V10092 and the approved application #85417 of the Ministerio Roca Solida Inglesia Cristiana with some urgency,” the letter from the county opens. “In addition to the adjudication of the above, the completion of the requested investigation into the junior water rights holder’s interference with the continuous flow to the senior water right holder is of greater urgency.”
The letter goes on to state that vested water right for the church camp is affecting 64 other water rights held by Fish and Wildlife at Ash Meadows, remarking, “With that many separate permits resting on the adjudication of one vested right, it should be promoted to a position of priority in your offices.”
Nye County Sheriff Sharon Wehrly is among local officials who have come out to publicly support Victor and Annette and she was on hand on June 7 to reiterate that support.
“This is such an atrocity. I got involved in it some time ago and on one of my trips to Washington, D.C. I talked to Trump’s representative for western states about this very issue. We were told that they would look into it, but I really don’t think much happened with it,” Wehrly said. “And I really think that we need to push forward or we will lose our water rights. Not only these ones, but other ones that are subject to the state water engineer and fish and wildlife.”
Commissioner Leo Blundo made the motion to approve the letter, with a second from commissioner Bruce Jabbour. The motion passed with emphatic “ayes” all around.
To view the letter in its entirety visit www.NyeCountyNV.gov and locate the June 7 Nye County Commission agenda in the “Meeting Center”. The document is contained as part of agenda item #34.
For more background information on the struggle visit pvtimes.com and search for “Patch of Heaven.”
Contact reporter Robin Hebrock at [email protected]
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.”
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.
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).
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.