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Indy Environment: The Nevada Supreme Court ruled against reshuffling water rights to fix environmental issues. Walker Lake advocates still see a path forward.

Daniel Rothberg
Daniel Rothberg

Good morning, and welcome to the Indy Environment newsletter.

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Yesterday we published a story showing that experts hired by the Bureau of Land Management had concerns about a state-approved report that minimized the extent of groundwater pollution emanating from the former Anaconda Copper Mine in favor of a company-supported analysis. 

In May, the Nevada Division of Environmental Protection said that the report at issue relied on the “best available science.” But an expert from the Bureau of Land Management questioned whether “good science” was used, according to documents that we obtained. Read more here.

As always, we want to hear from readers. Let us know what you’re seeing on the ground and how policies are affecting you. Email me with any tips or suggestions at [email protected].

Last week, the Nevada Supreme Court ruled that the state’s fundamental obligation to protect natural resources for future generations did not allow it to reallocate water rights issued under state law. The decision appeared to rule against litigants pushing to restore Walker Lake, where the use of upstream water rights has decreased the amount of water that reaches the lake.

But even with the ruling, advocates for the lake’s restoration see a path forward. 

Now that the Supreme Court has ruled, Glenn Bunch, president of the Walker Lake Working Group, said in a statement that it is up to “the federal court that has controlled the system for more than 80 years to help us figure out how to fix the problem and fulfill the public trust.”

First, the background.

Walker Lake is fed by the Walker River. Before water reaches the lake, it is diverted for farms, ranches and municipal use. As more water is diverted, less water flows into the lake. Over time, the lake receded and wildlife disappeared, as did opportunities to fish, boat and recreate. This had a major effect on the environment and economy of Mineral County, home to Walker Lake.

In 1994, the county took the issue to court, asserting that the state had a requirement to protect Walker Lake under its obligations to guard natural resources for future generations. This duty is known as the public trust doctrine. The question landed before the 9th Circuit Court of Appeals. The Walker River is governed by a decree, and issues are litigated in a federal “decree court.”

Yet when it came to the “public trust” question, the 9th Circuit wanted the state to weigh in. They asked the Supreme Court to define the scope of the public trust doctrine in water rights issued by the state. But the Nevada Supreme Court instead answered a more limited question. It asked if the state could reshuffle, or reallocate, existing water rights. The court said that it could not.

“At the end of the day, the majority opinion amounts to a relatively narrow holding,” said Simeon Herskovits, lead attorney for Mineral County and the Walker Lake Working Group.

In commentary throughout the opinion, the majority opinion assumes that the litigants sought to reallocate water rights, and it casts doubt on the idea that the restoration of Walker Lake can be achieved another way. But the dissent noted that advocates for Walker Lake asked for a range of relief other than reallocation. Relief could take the form of improved water efficiency or draw on other management tools.

Taken together, Herskovits said the ruling “leaves room” for the claim to move forward in the federal decree court. What is important is that the entire Supreme Court recognized that the public trust doctrine applies to waters of the state, despite a disagreement among the justices about how it is implemented in practice.

So what happens next? The case moves back to federal court.

“We look forward to having our day in federal court to determine how the public trust doctrine can most properly be applied to restore Walker Lake in light of the guidance provided by the Nevada Supreme Court,” Mineral County District Attorney Sean Rowe said in a press release.

Here’s what else I’m watching this week:

Authorization for nuclear testing: Democratic Reps. Steven Horsford and Susie Lee introduced a bill this week that would create a congressional authorization process for nuclear testing, mirroring legislation that Democratic Sen. Catherine Cortez Masto introduced. The Nevada National Security Site is the only facility equipped for underground nuclear testing, according to the press release from Horsford’s office. That fact makes the issue a particular concern for the delegation. The Trump administration has floated the idea of nuclear testing, according to a Washington Post story from earlier this year. 

Tesla + lithium: Tesla CEO Elon Musk said the company plans to start mining lithium and silicon, according to a story from Benjamin Preston with Consumer Reports. “There really is enough lithium in Nevada alone to electrify the entire U.S. fleet,” the company’s senior vice president said. Tesla reportedly obtained mineral rights for lithium clay deposits. 

  • Reuters: The “plan to produce lithium for electric vehicle batteries close to its Nevada Gigafactory faces stark challenges from the outset, including an onerous permitting process, uncertain access to water and questions about unproven methodologies.”

Joshua tree: In a historic vote, the California Fish and Game Commission voted unanimously to approve state endangered species protections for the western Joshua tree. “This marks the first time the state law has been used to give protection to a species that is mainly threatened by climate change,” Mark Olalde wrote for The Desert Sun.

An update on the Tiehm’s buckwheat from Terrell Wilkins at The Reno Gazette Journal.

A gap in air quality data: Notice a gap in air quality data right in the middle of the state? “There are no state or federal air monitors in nine of the state’s 17 counties,” Sam Metz reported for the Associated Press last week. Instead residents look to other data, including third-party sensors.

Killing the Vegas pipeline: An unlikely coalition formed around pushing back against the Las Vegas pipeline — and the strategy worked. High Country News’ Eric Seigel wrote an excellent story on the effort to stop the pipeline with great quotes from many involved in the fight.

Justice Ginsburg’s environmental precedent: Politico’s Alex Guillén looks at Justice Ruth Bader Ginsburg’s long record fighting for environmental issues on the Supreme Court.

Coming up: A documentary on Sen. Majority Leader Harry Reid’s environmental legacy. 


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