Public trust doctrine on the horizon for Nevada after Walker Lake legal victory

In a new twist to a long and winding legal battle, a recent Ninth Circuit Court decision offers a possible path to restoration for the long-beleaguered Walker Lake.

A fellow terminus lake

Around 40 miles (as the gull flies) northeast of Mono Lake lies another terminus lake, also fed by Eastern Sierra streams. Walker Lake, in Mineral County, Nevada, is one of just a handful of freshwater terminus lakes in the world.

The lake once supported a thriving native fishery of Tui chub and Lahontan cutthroat trout, which served as an important food source for the Walker River Paiute Tribe. Every year the trout would swim back up the Walker River more than 100 miles to the Sierra to spawn. After upstream dams ended spawning, a stocked trout fishery supported tourism, which accounted for around 50% of Mineral County’s economy.

Water diversions of the Walker River for upstream agriculture began in the mid-19th century, causing the elevation of the lake to drop 181 vertical feet between 1882 and 2016. Just like at Mono Lake, diversion of freshwater inflow caused the percentage of salts and minerals—total dissolved solids—to drastically increase. The last trout was fished out of Walker Lake in 2009. No native species currently survive in Walker Lake due to the poisonous effects of rising total dissolved solids.

Concerned citizens band together

The Walker Lake Working Group was formed in 1991. This non-profit citizens’ group of concerned locals stepped into the role of a David facing off against a Goliath of upstream agricultural interests worth roughly $330 million a year.

Fortunately, the Working Group had a powerful ally in Nevada’s Democratic US Senator Harry Reid (see Summer 2002 Mono Lake Newsletter). Senator Reid helped push through Public Law 111-85 in 2009, which created the Walker Basin Restoration Program. The Walker Basin Conservancy was established in 2015 as a non-profit to administer this program.

The Conservancy works with willing sellers in the basin to acquire water rights and land, and convey this water to Walker Lake to reach the restoration goal of 3951 feet of elevation (the lake’s current elevation is 3915.5 feet). Recent acquisitions gave the Conservancy more than 52% of the water needed to reach the goal level, which would allow reestablishment of the fishery. The Conservancy is responsible for the stewardship of more than 15,000 acres of land that was primarily used for agricultural purposes. This involves streambank stabilization, native plant restoration, and improving wildlife habitat. The Conservancy helps manage restoration efforts at the newly established Walker River State Recreation Area and the Mason Valley Wildlife Management Area.

A long and winding legal path

The early legal history of the fight for Walker Lake resembles the path of its river—meandering, beset by numerous diversions, wandering aimlessly away from its destination only to descend in an ever more arid arc towards eventual frustration.

Senator Reid found additional funding for legal efforts by the Working Group and Mineral County, allowing the ongoing public trust lawsuit to be filed in 1994.

The presiding Federal District Court Judge successfully delayed ruling on the public trust suit until his passing. The next Judge, Robert Jones, dismissed the public trust claim in 2015, but in finally issuing a ruling, broke the legal logjam.

The case was appealed to the Ninth Circuit Court of Appeals, which reversed Judge Jones’ ruling in 2018, disagreeing with several of his reasons for the public trust claim dismissal. The Ninth Circuit then sent the case to the Nevada Supreme Court, asking them to address whether the public trust doctrine applies to water rights already adjudicated or allocated under Nevada’s prior appropriation system of water rights.

In September 2020 the Nevada Supreme Court ruled that while the public trust doctrine applies to all water rights and waters in the state of Nevada, it does not allow for a reallocation of those rights.

Latest legal victory provides opportunities

The Working Group and Mineral County regrouped, then returned to the Ninth Circuit with a new request. In January 2021 the court proved to be amenable to this request: Senior Judge A. Wallace Tashima wrote, “the County may pursue its public trust claim to the extent that the County seeks remedies that would not involve a reallocation of such rights.”

This opens up options such as: changing how surplus waters are managed in wet years and how flows outside of the irrigation season are managed, requiring efficiency improvements with a requirement that water saved be released to Walker Lake, mandating that the state provide both a plan for fulfilling its public trust duty to Walker Lake and the funding necessary to effectuate that plan. The Ninth Circuit has sent the case back to Federal District Court to consider such solutions.

Vermont Law School Professor John Echeverria, who has been closely following this case, stated, “It’s a very significant decision. It creates a path for recognition and application of the public trust doctrine in Nevada to existing water rights.”

This post was also published as an article in the Winter & Spring 2021 Mono Lake Newsletter (pages 22 & 23). Top photo courtesy of Raquel Baranow.