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The U.S. Government Stole My Water and Flooded My Church. Then They Denied Me Damages | Opinion
On a dark night in 1991, I jumped into the ocean off the coast of Cuba and swam nine miles to Guantanamo Bay to ask for political asylum. I had no future in Cuba. My mother had multiple sclerosis, and I hoped that if I became an American, I could bring her here and get her better treatment.
The U.S. government sent me to Las Vegas, where they sent many Cubans trying to get a start. I worked as a dishwasher in a casino and met the woman who became my wife.
I had hoped to earn enough to bring my mother to America, but I soon realized I could not. Others in my situation turned to selling drugs. I didn’t want to get in trouble, but I wanted to save my mother, so I sold drugs too. Soon I was arrested.
I went to prison, where I found redemption. I found the Lord. When I was released, I went to the church a fellow prisoner had told me about. I worked with the youth, with gang members so that they wouldn’t make the same mistakes. Because of my experience in prison, they listened to me.
Eventually, I was ordained. In 2004, my family moved to Pahrump, a town outside of Las Vegas, where we began a Bible study. We wanted to offer something to help young people who are addicted in our community. We didn’t have money; we went by faith. My wife and I work for the glory of God. I am retired from the labor union, and my wife is retired from the casino, so that’s how we get by.
One day we saw a camp for sale in the Ash Meadow Wildlife Reserve and decided to go see it. The owner wanted a price we couldn’t afford. That’s when one of our parishioners who we didn’t know had money stepped forward. She bought the site and gave it to the church.
That’s how Patch of Heaven came to be. Our people worked hard to build it up. Churches from all around started holding retreats here. They would baptize people in our pond, just as we did.
We can no longer baptize people in our pond because the government stole our water.
U.S. Fish & Wildlife controls most of the land in Ash Meadow, and in 2010, they unlawfully and illegally diverted our water. They didn’t have permission from the Army Corps of Engineers or Nevada agencies, which they are required by law to obtain. They held public meetings about their supposed plans but did not disclose their true intentions.
Then they took our water. Everything dried up.
Three days before Christmas, our property was flooded as a result of their poor engineering.
In Cuba, there is no process. They take what they want, and that’s it. I never thought that would happen to me in America. It was like a knife in my heart. We aren’t doing anything wrong. We are helping kids, and adults get better.
We went through the legal process because we wanted to do the right thing. We had faith that we would receive justice. But 11 years after the government took our water and destroyed our property, our request for damages was denied. We had physical evidence from a local hydrologist with decades of experience. The government had a computer model from one of their experts in D.C. The judge decided to trust the computer model.
Right now, we cannot find relief from anybody. The government will not pay us for the damage it caused. It will not give us back our water.
This government is not working for the people. It is like what I left behind.
What is a patriotic American supposed to do?
Victor Fuentes is pastor of Ministerio Roca Solida in Nevada.
The views expressed in this article are the writer’s own.
Source: The U.S. Government Stole My Water and Flooded My Church. Then They Denied Me Damages | Opinion
We need your Help to fight NV OSE INTERIM ORDER #1330
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
WRITTEN COMMENT TO INTERIM ORDER #1330
Actual INTERIM ORDER #1330
After more than a decade, this camp’s fight for water still hasn’t been resolved | Pahrump Valley Times
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]
Source: After more than a decade, this camp’s fight for water still hasn’t been resolved | Pahrump Valley Times
Wolves in Sheep’s Clothing? Who Really wins?
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.
Source: Nevada town embraces environmental group who bought ranch\
NOMINATIONS: Meet the long-shot contender to lead Interior — Tuesday, January 29, 2019 — www.eenews.net
Critics of federal land management, including the owners of a Nevada-based church called Ministerio Roca Solida, echoed Pendley’s sentiment and began their own campaign to secure his nomination.
“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.”
Source: NOMINATIONS: Meet the long-shot contender to lead Interior — Tuesday, January 29, 2019 — www.eenews.net
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Pahrump water order reversal signed by judge | Pahrump Valley Times
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.”
Source: Pahrump water order reversal signed by judge | Pahrump Valley Times
Amargosa church wants creek restored as property damage grows | Pahrump Valley Times
By Daria Sokolova Pahrump Valley Times
January 13, 2016 – 10:37 am
Victor Fuentes’ 40-acre property in the Ash Meadows National Wildlife Refuge turned from a sprawling oasis in the desert into a dried up patch of barren land in a matter of a mere few years.
In August 2010, the U.S. Fish and Wildlife Service diverted the creek from the property where Victor and his wife Annette Fuentes, the leaders of the Ministerio Roca Solida had founded the Patch of Heaven church camp, citing the need to preserve endangered species including the Ash Meadows speckled dace the that inhabit the refuge.
“Sometimes, I don’t sleep over this,” Victor Fuentes said recently, overlooking the grim picture from one of the church’s camp buildings.
The Fuenteses purchased the property in 2007 for $500,000 after they were drawn to its beauty. Victor Fuentes, a Cuban exile-turned a Christian pastor said they poured money and labor into the project, turning it into a gem in the desert complete with amenities and a babbling brook — its main treasure. Victor Fuentes still remembers the days when they were doing baptisms at the camp.
Affected by the excessive heat and deprived of water, the vegetation at the camp soon withered, leaving a thin line of dead of trees near where the creek used to be. A flock of Canadian geese and other birds that had been attracted to water don’t come to the Fuentes’ property anymore. The only thing that grows along the perimeter of the church camp now is weeds.
Victor Fuentes describes the view outside the windows of his church camp as “depressing.”
The December 23, 2010 rainfall resulted in $86,000 damage to the property after torrents of water gushed across its perimeter when the channel built by the U.S. Fish and Wildlife Service wasn’t able to accommodate it. The property incurred additional damages when a heavy storm swept through southern Nye County in October 2015. The damage estimate is now close to $225,000.
On a recent tour through the property, Victor Fuentes surveyed the damage that had been wreaked by the last October flood. Cell phone videos recorded by Annette Fuentes show the floodwater rushing across the road leading to their property, something the Fuenteses claim wouldn’t happen if the direction of the creek hadn’t been changed.
Joseph Becker, Fuentes’ attorney who also serves as a director and chief legal officer for NPRI Center for Justice and Constitutional Litigation in Reno said the federal government had violated multiple constitutional rights in one swoop by diverting the creek away from the Fuentes property. After filing an administrative claim against the government in late 2011, they had to wait 13 months until the government acknowledged the filing and said it wouldn’t pay anything.
The case grew complex over the last four years, frustrating both Becker and the Fuenteses, who said that fighting a governmental agency in court has been a tough task. The seemingly simple case, as Becker put it, now involves several legal claims including negligence and free exercise violation.
“We (also) asked for injunctive relief to restore the land to what it was before, to put the water back,” he said.
Becker said they are now awaiting a decision from the Ninth Circuit Court of Appeals on whether former refuge manager Sharon McKelvey, who resigned upon being sued, may be held liable for damages to the church camp.
Christy Smith, project leader for the Ash Meadows National Wildlife Refuge and several other representatives declined to comment, citing a pending legal case.
Becker said they are also awaiting a decision from the Federal District Court on cross motions for summary judgment on the tort, free exercise and due process claims.
Becker also argued that the failure of the U.S. Fish and Wildlife Service to get the Clean Water Act permit and moving vested water rights away from the camp prior to diverting the creek constitute due process violations.
“In some ways, the reasons for doing what they did are legally irrelevant, but I do think they tell the story,” Becker said.
In a way, Becker said the Fuenteses are bearing the brunt of excessive government presence in Nye County where it controls more than 90 percent of the land.
Expert report conducted by Blaine Reely, a civil engineer and hydrologist regarding hydrologic impacts to private property said that the construction of the dam and the channel located north and east of the Fuentes’ property resulted in a significant change to hydrologic regime and character of the property.
“The USFWS, their consultants and contractors, did not follow reasonable standards of the industry during the planning, design, engineering and construction of the Carson Slough Diversion Channel project,” the report said. “Specifically, the USFWS failed to consider potential adverse impacts to the plaintiff’s property which resulted in flood damage, a continued increased risk of flooding and the potential for future loss of property as well as injury and/or loss of life to residents and visitors.”
Becker said he doesn’t charge Victor Fuentes legal fees as a nonprofit, yet he has to bill for their out-of-pocket expenses such as traveling to various courts across the country and filing fees. The figure is in the tens of thousands of dollars.
“Any amount of money that we have, we have to use it for the case,” Victor Fuentes said.
On July 22, 2014, Nye County officials passed a resolution that references the Fuentes case asking the director of U.S. Fish and Wildlife Services Dan Ashe to resolve the dispute by remitting damages and restoring surface waters to Ministerio Roca Solida’s church campgrounds.
In a follow-up letter on Jan. 5, 2016, Nye County commissioners said the agency’s conduct and action in Fuentes’ case caused many in Nye County to view federal management actions over land within the county and state with a “mixture of distrust and anger.”
“Nye County is perturbed and irritated that your agency has not only ignored us, but has also conspicuously dismissed and delayed owning up to and remediating the damages caused to Ministerio Roca Solida for almost five years,” the letter reads.
The Ash Meadows National Wildlife Refuge owns all of the bordering land around the Patch of Heaven. The Fuenteses are among a handful of people who still own properties in within the refuge boundaries that stretch across 23,000 acres.
Several maps that date back to the 1800s and 1900s show that the creek has always been on the land where the Fuentes’ property now stands.
Refuge officials cut off the water and moved it to a higher elevation in the name of historic restoration, but Becker argued that the action contradicts historical records.
“What they have done is they’ve cut off the water in the name of historic restoration even though there’s no history to indicate that ever happened, they moved it to a place where it’s never been to a higher elevation side of the church’s property and they made a channel that hardly accommodates a spring flow, let alone any heavy rain,” he said.
“There’s no history that where those buildings are has ever been flooded before until after they moved the water,” Becker said.
The U.S. Fish and Wildlife Service asserted that what they have do was to protect the endangered fish, but Becker claimed that in fact, the number of fish decreased as a result of those actions.
“It doesn’t seem like what they did had any benefit on the fish population at all,” he said.
Becker said they have done a lot of depositions, filed cross motions for summary judgement. They had a hearing on a cross motions for summary judgment in July 2015, but Victor Fuentes said he had been very frustrated with the dragging.
“Much has been done,” Becker said. “We have gone all the way up to Supreme Court on the takings issue, but they didn’t hear it yet. They may still do it.”
The case has garnered attention over the years that the Fuenteses had been trying to prove in court that the brook belongs to their property. But Becker said it’s not unique as conflicts between government and individuals on property rights occur fairly often.
The reason the Fuenteses liked the babbling brook is because it served for meditational and recreational purposes and they wanted water for baptisms.
Without water, the property is worth significantly less, Victor Fuentes said, although they don’t have an estimate.
Now, if the government isn’t going to restore the property to how it was, then it’s resolved in a complete taking of the property, as Fuentes can’t operate a camp that is constantly subject to flooding, Becker said.
Since diversion of the creek, the amount of donations have diminished as did the number of groups visiting the church camp. Staying at the camp during the rain is now dangerous, Annette Fuentes said.
“Fortunately, the two times that this has happened, nobody’s been here. But when they bring them in the buses, they drop them off Friday night, they come back Sunday,” she said.
While the injunctive relief filed by Becker said the government needs to restore the watershed to where it was before, he said the price could be too high.
“It’s not really clear what will happen,” Becker said.
“If the water could be restored to its pre-August 2010 situation, we’d love to keep the camp, because this was their vision. It’s not clear that that can still physically be done,” he added.
Becker said he fears that if the restoration costs are going to be high, the government may just file a condemnation action and take the property. In that case Becker said the government should pay its market value.
Ultimately, Fuentes is also fighting to get reimbursement for his legal expenses.
“We are trying to get justice. If they are ultimately going to take it, then they should also pay for the damages that they caused in the meantime, the loss of use in the meantime and all the costs that we’ve incurred trying to ensure the justice is done,” Becker said.
But the property also has a lot of emotional value, as Fuentes said his family and members of the church and the community “poured their soul” into the place.
“Not only our labor, but our own finances, we put it over here to make this happen,” he said.
“That was our vision.”
Source: Amargosa church wants creek restored as property damage grows | Pahrump Valley Times
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