Proposal to Give the Court of Appeals Original Jurisdiction Over Water Rights Disputes Gets Swiftly Abandoned - The Writ
The Nevada Legislature had not completed its first day of the 2021 session when a proposal to dramatically alter the jurisdiction of the Court of Appeals was quickly scrapped. The bill, introduced as Senate Joint Resolution 1, proposed to amend the Nevada Constitution to give the Court of Appeals original jurisdiction over certain cases relating to water. The idea was to make the Court of Appeals a de facto specialty court with expertise in the highly technical and somewhat arcane field of water disputes.
Although the bill draft was initially sought by Nevada’s chief water regulator, the request to the Senate Judiciary Committee Chair that SJR 1 not be advanced alflrso came from the Acting State Engineer. In lieu of legislative action, the Acting State Engineer indicated that his office was working with Chief Justice Hardesty to request that the Nevada Supreme Court appoint a commission to evaluate whether a specialty court for water-related disputes might be appropriate.
Jurisdiction of the Court of Appeals
As many readers know, in November 2014, voters approved the creation of a Court of Appeals by amendment to Article 6 of the Nevada Constitution. The Court of Appeals hears cases through a “push down” model, in which all appeals are initially filed with the Supreme Court Clerk’s office. The Supreme Court, according to the categories delineated in NRAP 17, then assigns cases to the Court of Appeals. See NRAP 17(b).
Generally, the Court of Appeals is assigned only “error correction” cases, meaning that it interprets existing law to determine whether an error occurred in the district court proceeding. As a result, the Court of Appeals does not tend to decide issues of first impression or cases that have wide-ranging statewide impact.
Like the Supreme Court, the Court of Appeals has original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and “all writs necessary or proper to the complete exercise of their appellate jurisdiction.” Nev. Const. art. 6, § 4. But as with appeals, only limited types of writ petitions get assigned to the Court of Appeals. See NRAP 17(b)(13). The Court of Appeals does not have original jurisdiction over cases that must be brought in district court in the first instance. SJR 1 sought to change that.
How Water Cases Work Their Way Through the Courts
Although some water disputes are filed first in the district courts, most start as administrative proceedings before the Division of Water Resources (“DWR”), which is headed by the State Engineer. DWR employs hydrologists, hydrogeologists, engineers, and other professionals with expertise in water who assist the State Engineer. Through its hearings section, DWR considers often dense scientific and historical evidence, ultimately issuing decisions from which an aggrieved person may seek judicial review in the district courts. NRS 533.450(1).
As with other administrative agencies, judicial review in a water case determines whether the State Engineer’s decision was a lawful exercise of discretion based on substantial evidence in the administrative record. Since the inception of Nevada’s water statute over 100 years ago, the Legislature has deemed “[t]he decision of the State Engineer [to be] prima facie correct,” with the party attacking such a decision bearing the burden of proof. NRS 533.450(10).
However, many water cases involve important questions of law and present issues of first impression. Oversight of the State’s scarce water resources is governed by a unique combination of common law, statutes and regulations with which most general jurisdiction district judges are unfamiliar. The result has been wide variation among district judges in how water cases are handled.
On appeal, all water cases are decided by the Supreme Court, as specified in NRAP 17(a)(8). The Supreme Court must often wade through case law that dates back to Nevada’s statehood, often looking to other Western states for guidance in the absence of precedent. Grafted onto that common law is statutory authority that was first enacted over a century ago and that continues to develop today to deal with changing demands for, and availability of, water.
The Supreme Court’s decisions have widespread consequences for water users, municipalities and environmental groups statewide.
The Short-Lived Effort to Transform the Court of Appeals into a Water Specialty Court
Based on its error-correction role and the confines of NRAP 17, the Court of Appeals has never decided a water case. Yet SJR 1 proposed to give the Court of Appeals original jurisdiction “in all civil cases arising from a final order or decision of the State Engineer.” This would have bypassed the district courts so that the Court of Appeals could act as a water specialty court, moving the decision-making power away from locally elected district judges in rural counties to jurists who are based in the State’s population centers.
Centralizing water cases in one court with subject matter expertise is a worthy pursuit that deserves further exploration. Water courts exist in a few states, and the complexity of water conflicts merits decision makers who are trained specifically in the intricacies of the law and science.
As the Acting State Engineer correctly concluded, however, a constitutional amendment to place this responsibility in the hands of the Court of Appeals was not the appropriate course. Rather, a court-sanctioned commission to engage in a public process that involves stakeholders and water law practitioners would allow for a robust idea exchange and ultimately lead to the best solution for the State.