Department of Conservation & Natural Resources v. Foley

109 P.3d 760, 121 Nev. 77, 121 Nev. Adv. Rep. 8, 2005 Nev. LEXIS 8
CourtNevada Supreme Court
DecidedApril 14, 2005
DocketNo. 40940
StatusPublished
Cited by13 cases

This text of 109 P.3d 760 (Department of Conservation & Natural Resources v. Foley) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Conservation & Natural Resources v. Foley, 109 P.3d 760, 121 Nev. 77, 121 Nev. Adv. Rep. 8, 2005 Nev. LEXIS 8 (Neb. 2005).

Opinion

OPINION

By the Court,

Hardesty, J.:

This appeal raises questions of interpretation of the statutory scheme under which the appellant, the Nevada Department of Conservation and Natural Resources, Division of Water Resources [79]*79(the Division),1 regulates water rights held by Nevada landowners. Because of Nevada’s arid geography, vital public policy considerations dictate that the Division, through the State Engineer, monitor the beneficial use of water rights. This oversight occasionally requires cancellation of water rights due to forfeiture from lack of use or development. In this case, we resolve whether the Division must provide notice of cancellation of water rights to permit owners whose interests do not appear of record in the files of the State Engineer. We conclude that such notice is not required.

FACTS AND PROCEDURAL HISTORY

David Baal acquired a piece of real estate situated in Clark County, Nevada. In 1990, Baal applied for a water permit, and in 1991 he subdivided the property into four separate lots.

The State Engineer granted permit number 53454 (the permit) for well service to the four parcels. The permit required that the holder file certain certificates with the Division, including a Proof of Completion of Work and a Proof of Water to Beneficial Use. Baal filed a Proof of Completion of Work in April 1992 but failed to provide a Proof of Water to Beneficial Use. The Division notified Baal in 1995 that his permit would be canceled unless he provided such proof within thirty days. Over the next several years, the Division granted several extensions of time for Baal to comply. In 1999, Baal failed to respond to additional notices requesting proof of beneficial use. The State Engineer ultimately gave final notice to Baal and canceled the permit on August 5, 1999.

This case involves two of the subdivided parcels, both of which Baal conveyed to respondents Denise and Charles Foley. The Fo-leys first purchased one of the lots from Baal in 1994 and have resided on it ever since.2 They purchased the other lot in 1996 and resold it to respondent Louis Foster in 2001. Although records of the transactions were apparently filed with the Clark County Recorder, none of these individuals filed a report or record of the transactions with the State Engineer.

The Foleys first learned of the permit cancellation when they sold the second parcel to Foster. The parties to this appeal agree that the Foleys never received any of the Division’s notices.

The Foleys filed a complaint for a preliminary injunction seeking reinstatement of the permit. Foster intervened in the action. Upon application, the district court concluded that the Foleys were [80]*80entitled to notice of cancellation and issued an injunction directing that the permit be reinstated.3 In this, the district court found and concluded that the Foleys and Foster would suffer irreparable harm if the permit was canceled, were without an adequate remedy at law, and had a reasonable probability of success on the merits. The Division filed its timely notice of appeal.

DISCUSSION

For a preliminary injunction to issue, the moving party must show that there is a likelihood of success on the merits and that the nonmoving party’s conduct, should it continue, would cause irreparable harm for which there is no adequate remedy at law.4 In-junctive relief is extraordinary relief, and the irreparable harm must be articulated in specific terms by the issuing order or be sufficiently apparent elsewhere in the record.5 This court reviews preliminary injunctions for abuse of discretion.6

• Chapter 533 of the Nevada Revised Statutes contains the legislative scheme governing water rights in Nevada. In part to resolve a lack of clarity in the statutory notice and filing requirements concerning water rights matters, the 1995 Nevada Legislature comprehensively amended Chapter 533. Pertinent to this appeal are the additions of NRS 533.384(1) and NRS 533.386(4), both of which became effective October 1, 1995. Under NRS 533.384(l)(a), transferees of water rights must file a report of the conveyance with the State Engineer.7 Additionally, under the amendments to NRS 533.386(4), the Division may only consider persons mentioned in [81]*81a report of conveyance, filed with the Division, as interested parties to water rights permits.8

Prior to October 1, 1995, nothing in NRS Chapter 533 explicitly imposed a duty upon the State Engineer to conduct title searches in connection with permit approvals or cancellations. Division personnel, however, routinely performed a degree of title work in connection with water rights applications and cancellations.9 Because these employees were not necessarily experts in title disputes, and because of a need to clearly define the Division’s responsibilities, the amendments to Chapter 533 now specifically place the duty to memorialize conveyance transactions concerning water rights upon the person to whom the right is conveyed. Thus, the 1995 amendments relieve the Division of any affirmative duty to seek information from the county recorders when acting upon permit applications and expired water rights.10 In this, the legislature sought to clarify the process of water rights registration and minimize potential ambiguities concerning water rights ownership. By implication, the statute limits the persons who are entitled to statutory notice of water right cancellations.

Notice requirements concerning the pre-October 1, 1995, transactions

The first Baal/Foley transaction was completed before the effective date of the amendments to Chapter 533. Nevertheless, as [82]*82noted, the State was under no obligation under the pre-October 1, 1995, version of NRS Chapter 533 to give notice to parties whose interests were not of record with the Division. The State Engineer’s compliance with the former statutory notice requirements concerning permit cancellation satisfies due process. This holds true unless there is a defect in the notice or the State Engineer has been negligent in the notice process.11

Neither Baal nor the Foleys reported the initial conveyance to the State Engineer. Consequently, the Foleys’ interest in the water rights remained unknown to the Division. Moreover, the permit application remained in Baal’s name during all relevant time periods, and Baal sought extensions to file the proof of beneficial use even after the first lot was conveyed to the Foleys in 1994. These factors underscore the propriety of the permit cancellation in this instance — with notice to Baal rather than the Foleys.

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Cite This Page — Counsel Stack

Bluebook (online)
109 P.3d 760, 121 Nev. 77, 121 Nev. Adv. Rep. 8, 2005 Nev. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-conservation-natural-resources-v-foley-nev-2005.