CITY OF FALLON AND CHURCHILL COUNTY VS. TRACY TAYLOR, STATE ENGINEER
Filing
49
ORDER. The Court ORDERS that Churchill County's 40 Motion for Leave to File Response to TMWA's Notice of Additional Authority is GRANTED. FURTHER ORD that TMWA'S 18 Motion to Dismiss for Lack of Jurisdiction is GRANTED. FURTHER ORD that the outstanding 3 Motion to Stay filed by Churchill County is DENIED as moot. Signed by Judge Lloyd D. George on 4/27/2009. (Copies have been distributed pursuant to the NEF - DRM)
<![CDATA[
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The City of Fallon also filed a petition for judicial review (#1), but has withdrawn that petition (#45). The Truckee-Carson Irrigation District moved for a writ of mandamus (#4), but has withdrawn that motion (#43).
1
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
UNITED STATES OF AMERICA, Plaintiff, v. ORR WATER DITCH CO., et al., Defendants. In Re: Protested Application Nos. 73783, 73791 through 73800, 73849 through 73855, 73863 through 73872, 73908 through 73917, 73986, 73987, 74076 through 74085, 74193 through 74202. Case No. 3:73-cv-00003-LDG (In Equity No. A-3-LDG) Case Sub-File 3:73-cv-00024-LDG ORDER
Churchill County has petitioned for judicial review (#2) of the Nevada State Engineer's Interim Order No. 1, entered in the protested applications identified in the above caption.1 The respondent, real party-in-interest Truckee Meadows Water Authority, moves to dismiss the petition (#18). The Water Authority has been joined in its motion by the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Nevada State Engineer (#22), the United States (#23), and the Pyramid Lake Paiute Tribe of Indians (#24). Churchill County opposes the motion (#28). Motion to Dismiss The defendant's motion to dismiss, brought pursuant to Fed. R. Civ. P. 12(b)(1), challenges whether Churchill County's petition seeking judicial review of an interim order of the State Engineer is ripe. The threshold issue raised by the motion to dismiss is straightforward: Pursuant to the language of Nevada Revised Statute §533.450(1), can Churchill County appeal an interim or interlocutory order of the State Engineer? Section 533.450(1) states in relevant part: Any person feeling himself aggrieved by any order or decision of the State Engineer . . . affecting his interests, when such order or decision relates to the administration of determined rights or is made pursuant to NRS 533.270 to 533.445, inclusive, may have the same reviewed by a proceeding for that purpose, insofar as may be in the nature of an appeal . . . . Churchill County's argument is equally straightforward: Since the statute permits a review of "any order," an interim order may be appealed. The respondents counter that the statute must be read as a whole, and when read as such leads to the conclusion that a judicial review becomes ripe only after the State Engineer has entered a final order. The respondents further note the general judicial abhorrence of permitting appeals of interlocutory orders, and the judicial preference that the decisions of a decision-maker become ripe for review only after the final decision in the matter is issued. Recently, in Howell v. State Engineer, 124 Nev. Adv. Op. No. 99 (2008), the Nevada Supreme Court stated: Because NRS 533.450(1) provides review for "any order or decision" of the State Engineer that affects a person's interests "when the order or decision relates to the administration of determined rights," we conclude that so long as the decision affects a person's interests concerning the rights, and is a final written decision of the issue, it is reviewable. In several places in its decision, the Nevada Supreme Court reiterates that the decision of the State Engineer must be final to be reviewable under NRS 533.450(1). The State 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Engineer clearly identified the order from which Churchill County seeks review as an interim order. As such, the State Engineer indicated his intent to retain jurisdiction over the issues addressed in Interim Order #1, including an inherent procedural power to reconsider, rescind, or modify the resolution of issues addressed in Interim Order #1 prior to entering his final decision on the underlying change applications. Indeed, shortly after entering Interim Order #1, the State Engineer modified the resolution of several issues and subsequently entered Interim Order #2. The court would note that, by this decision, Churchill County is not deprived of an opportunity to seek review of the State Engineer's decisions set forth in Interim Order #1. Rather, the court has determined only that those decisions are not yet ripe for review. Accordingly, for good cause shown, THE COURT ORDERS that Churchill County's Motion for Leave to File Response (#40) to Truckee Meadows Water Authority's Notice of Additional Authority is GRANTED; THE COURT FURTHER ORDERS that Truckee Meadows Water Authority's Motion to Dismiss for Lack of Jurisdiction (#18) is GRANTED. THE COURT FURTHER ORDERS that the outstanding Motion to Stay (#3) filed by Churchill County is DENIED as moot.
DATED this ______ day of April, 2009.
Lloyd D. George United States District Judge
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
