IN THE SUPREME COURT OF THE STATE OF NEVADA
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`Electronically Filed
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`Jan 31 2023 04:59 PM
`
`Elizabeth A. Brown
`
`Clerk of Supreme Court
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`Case No. 84739
`(consolidated with Case Nos. 84741,
`84742, and 84809)
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`Appellant,
`
`vs.
`
`ADAM SULLIVAN, P.E., NEVADA
`STATE ENGINEER, DIVISION OF
`WATER RESOURCES, DEPARTMENT
`OF CONSERVATION AND NATURAL
`RESOURCES,
`
`
`
`
`
`LINCOLN COUNTY WATER
`DISTRICT; VIDLER WATER
`COMPANY, INC.; COYOTE SPRINGS
`INVESTMENT, LLC; NEVADA
`COGENERATION ASSOCIATES
`NOS. 1 AND 2; APEX HOLDING
`COMPANY, LLC; DRY LAKE
`WATER, LLC; GEORGIA-PACIFIC
`GYPSUM, LLC; REPUBLIC
`ENVIRONMENTAL TECHNOLOGIES,
`INC.; SIERRA PACIFIC POWER
`COMPANY, d/b/a NV ENERGY;
`NEVADA POWER COMPANY, d/b/a
`NV ENERGY; THE CHURCH OF
`JESUS CHRIST OF LATTER-DAY
`SAINTS; MOAPA VALLEY WATER
`DISTRICT; WESTERN ELITE
`ENVIRONMENTAL, INC.; and
`BEDROC LIMITED, LLC; CITY OF
`NORTH LAS VEGAS,
`
`
`
`Respondents.
`
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`APPELLANTS’ OPPOSITION TO
`RESPONDENTS’ JOINT REQUEST FOR JUDICIAL NOTICE
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`
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`Page 1 of 12
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`Docket 84739 Document 2023-03065
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`
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`Electronically Filed
`
`Jan 31 2023 04:59 PM
`
`Elizabeth A. Brown
`
`Clerk of Supreme Court
`
`Case No. 84739
`(consolidated with Case Nos. 84741,
`84742, and 84809)
`
`Appellant,
`
`vs.
`
`ADAM SULLIVAN, P.E., NEVADA
`STATE ENGINEER, DIVISION OF
`WATER RESOURCES, DEPARTMENT
`OF CONSERVATION AND NATURAL
`RESOURCES,
`
`
`
`
`
`LINCOLN COUNTY WATER
`DISTRICT; VIDLER WATER
`COMPANY, INC.; COYOTE SPRINGS
`INVESTMENT, LLC; NEVADA
`COGENERATION ASSOCIATES
`NOS. 1 AND 2; APEX HOLDING
`COMPANY, LLC; DRY LAKE
`WATER, LLC; GEORGIA-PACIFIC
`GYPSUM, LLC; REPUBLIC
`ENVIRONMENTAL TECHNOLOGIES,
`INC.; SIERRA PACIFIC POWER
`COMPANY, d/b/a NV ENERGY;
`NEVADA POWER COMPANY, d/b/a
`NV ENERGY; THE CHURCH OF
`JESUS CHRIST OF LATTER-DAY
`SAINTS; MOAPA VALLEY WATER
`DISTRICT; WESTERN ELITE
`ENVIRONMENTAL, INC.; and
`BEDROC LIMITED, LLC; CITY OF
`NORTH LAS VEGAS,
`
`
`
`Respondents.
`
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`APPELLANTS’ OPPOSITION TO
`RESPONDENTS’ JOINT REQUEST FOR JUDICIAL NOTICE
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`
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`Page 1 of 12
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`Docket 84739 Document 2023-03065
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`Appellants Adam Sullivan, P.E., in his capacity as the Nevada State Engineer,
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`Department of Conservation and Natural Resources, Division of Water Resources
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`(hereafter “State Engineer”), Southern Nevada Water Authority, Muddy Valley
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`Irrigation Company, and Center for Biological Diversity (collectively “Appellants”),
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`by and through their respective counsel, hereby file this Opposition to Respondents’
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`Joint Request for Judicial Notice. This Opposition is based on the following
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`Memorandum of Points and Authorities and the papers on file herein.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`None of the exhibits that Respondents identify include facts that are the proper
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`subject of judicial notice under NRS 47.130. Additionally, Respondents take
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`statements made by the State Engineer or his employees that, when given their
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`proper context, do not create the inconsistences that Respondents construct. Finally,
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`the district court expressly excluded one of the exhibits from the record when some
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`of the Respondents sought judicial notice in the district court, and Respondents have
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`not challenged the district court’s ruling on appeal. For those reasons, this Court
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`should deny the joint request for judicial notice in its entirety.
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`II. LEGAL STANDARD
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`Generally, this Court will not consider matters not properly appearing in the
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`record on appeal. Carson Ready Mix, Inc. v. First Nat’l Bank of Nev., 97 Nev. 474,
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`Page 2 of 12
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`476, 635 P.2d 276, 277 (1981). Judicial notice is a “shortcut” that does away with
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`the need to present evidence of a fact. Lemel v. Smith, 64 Nev. 545, 565–66,
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`187 P.2d 169, 179 (1947). Judicial notice of matters of fact is limited to “facts in
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`issue or facts from which they may be inferred.” NRS 47.130. Facts subject to
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`judicial notice under both NRS 47.130 and NRS 47.150 must be generally known or
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`capable of accurate and ready determination by resorting to sources whose accuracy
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`cannot reasonably be questioned so that the fact is not subject to reasonable dispute.
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`Mack, 125 Nev. at 91, 206 P.3d at 106. This Court generally “will not take judicial
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`notice of records in another and different case, even though the cases are connected.”
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`Id. (citing Occhiuto, 97 Nev. at 145, 625 P.2d at 569). But this Court recognizes an
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`exception to the general rule which depends upon an examination of “the closeness
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`of the relationship between the two cases.” Id. at 91–92, 206 P.3d at 106.
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`III. ARGUMENT
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`A. Exhibit 1: Minutes of the Meeting of the Subcommittee on Pub.
`Lands of the Joint Interim Standing Committee on Nat. Resources,
`May 23, 2022
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`The minutes of a legislative hearing that occurred after the district court issued
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`its order vacating Order 1309 have no bearing on any fact in issue in this case. Thus,
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`Exhibit 1 is not the proper subject of a request for judicial notice under NRS 47.130.
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`Even so, if this Court reviews the remarks that Respondents rely upon to
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`construct a purported inconsistency in positions, it will see that Deputy
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`Page 3 of 12
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`Administrator Fairbank made those statements in direct response to the district court
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`order that is the subject of this appeal.1 The State Engineer’s reliance on the
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`Legislature as an alternative forum to address the district court’s conclusions in this
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`case—that the State Engineer lacks statutory authority for joint administration and
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`conjunctive management—establishes no inconsistency with the State Engineer’s
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`position in this appeal.
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`The State Engineer is, in this appeal, challenging the district court’s ruling
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`that the statutes do not provide him with the authority to engage in joint
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`administration and conjunctive management. But the State Engineer does not have
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`to wait for this Court to issue a final ruling on that issue before he can turn to the
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`Legislature to seek stronger statutory language that clarifies the existence of his
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`authority to conjunctively manage hydrologically connected resources of surface
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`water and groundwater. There is no inconsistency between Exhibit 1 and the State
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`Engineer’s position in this appeal.
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`B.
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`Exhibit 2: Respondent Nevada State Engineer’s Answering Brief,
`filed
`in Pyramid Lake Paiute Tribe of Indians v. Ricci,
`Case No. CV01-05764
`
`This brief fits squarely within this Court’s general rule that it will not take
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`judicial notice of records from other cases. This Court has denied judicial notice of
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`1 Joint Request for Judicial Notice at 2 (quoting Exhibit 1); Joint Answering
`Brief at 23; CSI Answering Brief at 13 n.6.
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`Page 4 of 12
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`court records “even though the cases are connected.” Mack, 125 Nev. at 91, 206 P.3d
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`at 106 (citing Occhiuto, 97 Nev. at 145, 625 P.2d at 569). Here, Respondents request
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`judicial notice of a brief the State Engineer filed in district court 20 years ago. But
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`there is no direct connection between the facts of that case and the facts of this case
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`that would be the proper subject of judicial notice under NRS 47.130.
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`Even so, there is no inconsistency. First, the legal issues in the two cases are
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`different. The State Engineer, in the brief attached as Exhibit 2, said nothing about
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`his authority to rely upon the best available science to delineate an aquifer that—like
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`the LWRFS—covers a geographic area that spans multiple groundwater basins, as
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`he did in Order 1309.2 And what the State Engineer did say—that although surface
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`water and ground water historically have been managed separately, he considered
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`the hydrologic connection between surface water and groundwater when limiting
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`imposing a limit on pumping to protect existing surface water rights and the public
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`interest—aligns with the State Engineer’s current position on the need for him to
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`consider the existence of hydrologic connections between groundwater and surface
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`water.3
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`
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`2 Exhibit 2.
`3 Exhibit 2 at 19:22–20:9; Joint Opening Brief at 46–61; see also Pyramid Lake
`Paiute Tribe of Indians v. Ricci, 126 Nev. 521, 527, 245 P.3d 1145, 1149 (2010) (“The
`State Engineer imposed this limitation in part to protect the Truckee River water
`quality and native fish habitats.”).
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`Page 5 of 12
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`Second, even assuming an inconsistency existed, the relevant legal landscape
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`has changed. In particular, fourteen years after the State Engineer filed the brief
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`Respondents cite, the Legislature stated, “It is the policy of this State . . . [t]o manage
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`conjunctively the appropriation, use and administration of all waters of this State,
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`regardless of the source of the water.” 2017 Nev. Stat., ch. 517, § 1.3, at 3498
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`(emphasis added). The Legislature’s more recent directive that the State Engineer
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`manage all of Nevada’s water, regardless of its source, undercuts Respondents’
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`reliance on the State Engineer’s past statements to establish a basin-by-basin
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`limitation on the State Engineer’s authority to manage the State’s water resources
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`that cross basin boundaries. As a result, what the State Engineer said before the
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`Legislature’s adoption of the current language of NRS 533.024(1)(e) is irrelevant
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`and does not create an inconsistency between Exhibit 2 and the State Engineer’s
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`position in this appeal.
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`C. Exhibit 3: Minutes of the Meeting of the Assembly Comm. on
`Natural Res. Agric., and Mining, Feb. 27, 2019, 2019 Leg.,
`80th Sess. (Nev. 2019)
`
`This Court recently held that unpassed legislation “has little value when
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`interpreting a statute.” Diamond Nat. Res. Prot. & Conservation Assoc. v. Diamond
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`Valley Ranch, LLC, 138 Nev. Adv. Op. 43, 511 P.3d 1003, 1010 (2022) (citing
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`Pension Benefit Guar. Corp. v. The LTV Corp., 496 U.S. 633, 650, 110 S. Ct. 2668,
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`110 L. Ed. 2d 579 (1990)). This is because unadopted proposed legislation “leads to
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`Page 6 of 12
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`
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`conflicting inferences”—e.g., it could mean that the Legislature did not want the
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`State Engineer to have certain authority, or it could mean that “the Legislature
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`rejected [a] bill because it felt that the existing statutory text already allowed the
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`State Engineer” to take the challenged action. Id.
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`The minutes Respondents present are from a committee hearing on Assembly
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`Bill 51, which never made it out of committee and, therefore, never became law. As
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`a result, even if these minutes contained facts that were the proper subject of judicial
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`notice under NRS 47.130—they do not—the minutes have little value, if any, to this
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`Court’s consideration of questions of law on the State Engineer’s authority to issue
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`Order 1309.
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`Moreover, the then-State Engineer’s statements do not contradict the State
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`Engineer’s position in this case. Through AB 51, the State Engineer sought
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`additional express powers for actively managing water resources and mitigating
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`conflicts among various water users. The then-State Engineer’s expression of his
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`opinion that existing statutes did not “provide the framework necessary to effectively
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`implement the Legislature’s policy direction” reflects that particular context, and is
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`not the same as “conced[ing] that there is no express authority for ‘conjunctive’
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`management’ in Nevada’s water statutes.”4 At most, this testimony illustrates a
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`desire for more precise statutory language, not the complete absence of authority to
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`4 Request for Judicial Notice at 5.
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`Page 7 of 12
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`act. There is no inconsistency between Exhibit 3 and the State Engineer’s position
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`in this appeal.
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`D. Exhibit 4: Order 1329
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`Respondents seek judicial notice of Order 1329 based on its reference to a
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`specific portion of AB 51 that would have directed the Nevada Division of Water
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`Resources (“DWR”) to adopt conjunctive management regulations. The request is
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`improper for multiple reasons.
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`First, Order 1329 post-dates Order 1309 and involves an entirely different
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`water resource—the Humboldt River. Thus Order 1329, does not address facts that
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`are the proper subject of a request for judicial notice under NRS 47.130.
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`Additionally, Order 1329’s reference to AB 51 was not a statement about the
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`State Engineer’s authority, or lack thereof, to conjunctively manage water resources
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`generally. It was a factual statement of what occurred in the 2019 Legislative
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`Session—AB 51 not becoming law. And AB 51 was not a bill to codify the State
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`Engineer’s authority for conjunctive management, but instead would have required
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`DWR to adopt specific regulations on the use of conjunctive management to resolve
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`and mitigate conflicts between senior and junior priority water rights. As explained
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`above, there is no inconsistency between the State Engineer’s position on AB 51 and
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`the State Engineer’s position in this appeal.
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`Page 8 of 12
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`Finally, certain Respondents sought admission of Order 1329 in the district
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`court, and the district court rejected a request that it take judicial notice of the
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`document. Joint Appendix Vol. 49, at JA 22430–22438. But Respondents have not
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`challenged the district court’s ruling on Order 1329 in this appeal. This Court should
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`not allow Respondents to circumvent the deferential standard for reviewing the
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`district court’s evidentiary rulings by seeking judicial notice on appeal. Cf. McLellan
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`v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) (“We review a district court’s
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`decision to admit or exclude evidence for an abuse of discretion.”).
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`E.
`
`Exhibit 5: Minutes of the Meeting of the Assembly Subcommittee
`on Public Lands, August 22, 2022, 2022 Interim Legislature
`(Nev. 2022); and Exhibit 6: Summary of Recommendations,
`Joint Interim Standing Committee on Natural Resources and
`Subcommittee on Public Lands
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`This Court should deny the request to take judicial notice of Exhibits 5 and 6
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`for the same reasons as Exhibit 1. The minutes, and the summary, post-date the
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`district court’s order on Order 1309 and discuss potential future legislation to
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`“clarify the processes and authority for conjunctive management of surface and
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`groundwater basins.” Exhibit 5 at 11; Exhibit 6 at 1. These documents do not include
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`facts that are the proper subject of judicial notice under NRS 47.130.
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`Moreover, this potential, unenacted legislation has little value, if any, in
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`interpreting the relevant statues, especially when there is not even text of a Bill Draft
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`Request to examine. “Clarifying” the processes and authority for conjunctive
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`Page 9 of 12
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`management does not mean that the State Engineer entirely lacks that authority.
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`Thus, there is no inconsistency between Exhibits 5 and 6 and the State Engineer’s
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`position in this appeal.
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`IV. CONCLUSION
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`For the foregoing reasons, the Appellants respectfully request that the Court
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`deny Respondents’ request for judicial notice.
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`
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`RESPECTFULLY SUBMITTED this 31st day of January, 2023.
`
`
`
`AARON D. FORD
`Attorney General
`
`By: /s/ James N. Bolotin
`HEIDI PARRY STERN
`NV Bar No. 8873
`Solicitor General
`JEFFREY M. CONNER
`NV Bar No. 11543
`Deputy Solicitor General
`KIEL B. IRELAND
`NV Bar No. 15368
`Deputy Solicitor General
`JAMES N. BOLOTIN
`NV Bar No. 13829
`Senior Deputy Attorney General
`100 North Carson Street
`Carson City, NV 89701-4717
`T: (775) 684-1100
`E: hstern@ag.nv.gov
`
`jconner@ag.nv.gov
`
`kireland@ag.nv.gov
`
`jbolotin@ag.nv.gov
`Attorneys for Appellant
`State Engineer
`
`
`
`
`
`TAGGART & TAGGART, LTD.
`
`By: /s/ Paul G. Taggart
`PAUL G. TAGGART, ESQ.
`NV Bar No. 6136
`THOMAS P. DUENSING, ESQ.
`NV Bar No. 15213
`108 North Minnesota Street
`Carson City, NV 90703
`T: (775) 882-9900
`E: paul@legaltnt.com
`
`tom@legaltnt.com
`
`IN ASSOCIATION WITH:
`STEVEN C. ANDERSON, ESQ.
`NV Bar No. 11901
`LAS VEGAS VALLEY WATER
`DISTRICT & SOUTHERN
`NEVADA WATER AUTHORITY
`1001 South Valley View Blvd.
`Las Vegas, NV 89153
`E: sc.anderson@lvvwd.com
`Attorneys for Appellant SNWA
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`Page 10 of 12
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`
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`CENTER FOR BIOLOGICAL
`DIVERSITY
`
`By: /s/ Scott Lake
`SCOTT LAKE, ESQ.
`NV Bar No. 15765
`P.O. Box 6205
`Reno, NV 89513
`T: (802) 299-7495
`E: slake@biologicaldiversity.org
`Attorney for Appellant CBD
`
`
`
`
`
`DOTSON LAW
`
`By: /s/ Justice C. Vance
`ROBERT A. DOTSON, ESQ.
`NV Bar No. 5285
`JUSTIN C. VANCE, ESQ.
`NV Bar No. 11306
`5355 Reno Corporate Dr., Ste. 100
`Reno, NV 89511
`T: (775) 501-9400
`E: rdotson@dotsonlaw.legal
`
`jvance@dotsonlaw.legal
`
`IN ASSOCIATION WITH:
`STEVEN D. KING, ESQ.
`NV Bar No. 4304
`227 River Road
`Dayton, NV 89403
`T: (775) 427-5821
`E: kingmont@charter.net
`Attorneys for Appellant MVIC
`
`
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`Page 11 of 12
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`CERTIFICATE OF SERVICE
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`
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`I certify that I am an employee of the Office of the Attorney General and that
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`on this 31st day of January , 2023, I served a copy of the foregoing APPELLANTS’
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`OPPOSITION TO RESPONDENTS’ JOINT REQUEST FOR JUDICIAL
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`NOTICE, by electronic service to the participants in this case who are registered
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`with the Nevada Supreme Court’s EFlex Electronic Filing System.
`
`
`
`
`
`
`
`/s/ Dorene A. Wright
`
`
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`Page 12 of 12
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