News Analysis
Long-term Win Could Be Fruit
Of Monitor Valley Adjudication

by Steve Miller
copyright (c) 1997, Electric Nevada

A large-scale victory by Nevada ranchers over the U.S. Forest Service may be emerging against the backdrop of the current Monitor Valley water rights struggle.
It will take months and perhaps even years before final results are in, say observers.
But now that the state engineer's hearings are over, the Forest Service appears to have little chance, in the coming stages of the Monitor Valley water adjudication, of winning the control over Nevada water it has sought and claimed since the early 1980s.
Moreover, because the U.S. government is itself a party to the current adjudication, say these observers, major federal agencies like the Forest Service and the Bureau of Land Management will, in the future, no longer be able to ignore Nevada water law.
For many Nevada ranchers -- often beset by federal land agencies seeking to control water rights that, under Nevada law, belong not to them but to the ranchers -- this could mean major relief.
And there's a second reason why the current adjudication could ultimately force a broad shift in policy by the federal land agencies---not only in Nevada but throughout the western U.S.
If Nevada courts ultimately hold, as expected, that the water rights at issue



in the Monitor Valley adjudication are the property of Nye County's Pine Creek and R.O. ranches, such rulings will have a major impact on takings cases the two ranches now have before the U.S. Court of Federal Claims in Washington, D.C.
At stake in the cases are millions of dollars the ranches are asking in compensation for U.S. Forest Service confiscation of Monitor Valley cattle and water, ditch and grazing rights, etc.
Already the ranches have won an interlocutory appeal against the federal government from the Claims Court chief judge, Loren A. Smith.
The government had argued there can be no compensable private property in the water rights, forage, improvements, etc. it had taken from the Nye County ranchers. But Smith rejected that view and announced the issue now was simply the factual question of whose water rights in fact vested first -- a question upon which he would hold an evidentiary hearing.
That decision, said a legal strategist for the R.O. ranch, makes


 
the Nevada water adjudication critical.
"As far as I'm concerned, even Chief Justice Smith himself [is] going to listen to Nevada law, and he's going to apply it," said Carl Haas. "That's why the Nevada case is so terribly important."
If the federal government is forced to pay for multi-million-dollar illegal takings by the federal land agencies in the West, it would be a precedent forcing a wholesale shift in behavior by those agencies.
In recent years, BLM and Forest Service agencies have often been able




to 'shake the tree' until the resources--- water, forage, etc. -- of already economically-hard- pressed ranchers, under the additional pressure, fall into the agencies' grasp.
But in the future, a regimen of clear takings rulings from the Court of Federal Claims could mean that such 'shaking' of 'the tree' would bring, not free resources, but instead, huge legal and financial liabilities.
That, say political observers, is not something Congress would readily accept.


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