Monitor Valley Water Adjudication
Bigtime Showdown for Nevada Water Law

By Mark Waite
Elko Daily Free Press

A water rights hearing before the state engineer's office involving the U.S. Forest Service and two Nye County ranchers could have a tremendous, predecent-setting impact on water rights throughout the West, according to some interested observers in western Nevada.
The hearing involves a dispute centered in Nye County's Monitor Valley and arose out of a lawsuit involving Wayne Hage, a Tonopah rancher, explained Eureka County Deputy District Attorney Zane Miles.
Eureka County officials felt concerned enough about the case to tell their water rights attorney, Karen Peterson, to research filings in the case, sit in on part of the discussion in Carson City last week and file a brief in the case.
The U.S. Forest Service in this case is arguing its plans for water -- for fisheries, stream flow or whatever other purposes -- are sufficient to override other uses such as ranching, Miles said.
"The significance of this whole thing is, if in fact what the feds are trying to argue is the traditional 150-year-old western water law -- first in time, first in right -- should be abandoned and the western water authorities, the state engineer in most of the states, should consider all the other issues as having equal or sometimes higher priority than the previous appropriation," he said.
"It would just totally reverse 150 years of appropriative rights water law. Every



ranch in Nevada and in the West that depends upon water rights that arises on federally controlled land would be affected."
The federal government is exerting claim over the water rights since the mountains, where the snow falls to feed the streams, are on federally controlled land, Miles said.
"So not only would they end up controlling all of the land, but they'd end up controlling all of the water, too," he said.
Monica Schwalbach, assistant supervisor of central Nevada for the USFS, said the federal government wasn't involved in past appropriations of water and wants to revisit some of the cases.
"If you've seen the Nevada Wilderness Act of 1989, it says that all unappropriated waters would be placed in reserve for the purpose of the wilderness," Schwalbach said.
"If you keep the ecosystems healthy, then they will continue to supply water to downstream users."


 
One of the next cases will be closer to Elko, involving water rights in Owyhee Basin, pitting the Forest Service, U.S. Bureau of Land Management, the Duck Valley Indian tribe and private landowners, Schwalbach said.
John Palm, a hearing officer for the state engineer's office, said his office is negotiating with the tribe over water rights on the East Fork of the Owyhee River, which drains into Idaho. A hearing on the Owyhee case may not take place until next year, Palm said.
"What [State Engineer] Michael Turnipseed needs to decide," said Schwalbach, "is 'does the use of that water go to the permittee, or does the right to use that water go to the federal government?'"
Tony Lesperance, an Elko County Commissioner and owner of Great Basin Agriculture Co., said the impact of a Forest Service victory in the Monitor Valley case would be catastrophic for ranchers, "because probably 90 percent of the surface water rights in the State of Nevada originate in U.S. Forest Service lands." BLM is not the lead agency involved in this case but has been following along, Lesperance said.
The Forest Service is alleging Hage could not have been damaged by actions by the agency on his property because water rights in Monitor Valley had not been adjudicated, Miles said.
"Nevada water law from the earliest days had provided that when you appropriate water and put it to beneficial use, it becomes




yours as long as you continue to use it beneficially," Miles said.
The state engineer's office, in a preliminary order, recognized most of Hage's water rights claims on public lands, but Hage is objecting to a handful of claims upheld for the U.S. Forest Service, Palm said. Some of the reserve water rights claimed by the USFS were rejected because they didn't fit the definition of reserve rights, he said.
The law creating the state engineer's office and establishing the process of adjudicating water rights was passed in 1905. Hage is trying to prove his water was put to beneficial use before that date and before the creation of the Toiyabe National Forest in 1907.
Besides Hage, the RO Ranch is involved in this case. The case was continued until March 17 because Hage's attorney, Mike Van Zandt, had a death in his family.
The Forest Service has already been busy trying to prove there are unallocated water rights from different tributaries feeding into rivers and streams, Lesperance said.
But he said he sees even more of a conspiracy by the Forest Service in this case.
"The Forest Service has made it their top priority to control all private property rights," Lesperance said. "Their original mission was to develop the forest so they


 
catch sustainable water down the line for the development of private property."
Schwalbach had a different perspective on the case.
"If you have a new permittee that comes in now, the determination of whether they have a right to use water depends on what was happening on their property in 1905, not on what they want to do today. That's something people kind of forget," she said.
Palm said landowners can produce




information from the county tax rolls to show a chain of title, to provide evidence the water rights were put to beneficial use.
But Lesperance said some ranchers haven't kept documentation, unaware their water rights would be contested some day.
"There hasn't been any publicity about this and, consequently, most of the people who should be concerned about it aren't even aware of it," Miles said.


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