NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MONO COUNTY, County Counsel, No. 15-16342
Plaintiff-Appellee, D.C. No. 3:73-cv-00128-RCJ-WGC MINERAL COUNTY,
Intervenor-Plaintiff- MEMORANDUM* Appellant,
WALKER LAKE WORKING GROUP,
Defendant-Appellant,
and
UNITED STATES OF AMERICA,
Plaintiff,
WALKER RIVER PAIUTE TRIBE,
Intervenor-Plaintiff,
v.
WALKER RIVER IRRIGATION DISTRICT; NEVADA DEPARTMENT OF WILDLIFE; FENILI FAMILY
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. TRUST, c/o Peter Fenili and Veronica Fenili, Trustees; SIX N RANCH, INC., c/o Richard and Cynthia Nuti; MICHAEL NUTI; NANCY NUTI; RALPH E. NUTI; MARY E. NUTI; LAWRENCE M. NUTI; LESLIE NUTI; MICA FARMS, LLC, c/o Mike Faretto; JOHN AND LURA WEAVER FAMILY TRUST, c/o Lura Weaver, Trustee; SMITH VALLEY GARAGE, INC., c/o Dan Smith and Shawna Smith; DONALD GIORGI; LORIE MCMAHON; MERLE MCMAHON; CENTENNIAL LIVESTOCK; LYON COUNTY; ANNETT’S MONO VILLAGE; F.I.M. CORPORATION; R.N. FULSTONE COMPANY; JAMES T. FOUSEKIS, Trustee; CHRIS H. GANSBERG, Jr.; FAYE E. GANSBERG; TODD GANSBERG; HUNEWILL LAND & LIVESTOCK CO., INC.; DAVID SCEIRINE; PAMELA HAAS; VIRGINIA LAKE MUTUAL WATER COMPANY,
Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Argued and Submitted August 30, 2017 Pasadena, California
Before: TASHIMA, FISHER and BYBEE, Circuit Judges.
2 Mineral County appeals the dismissal of its claim that Nevada’s public trust
doctrine requires the modification of the 1936 Walker River Decree to ensure
minimum water flows reach Walker Lake. In this memorandum, we address only
the issue of standing. We reserve judgment on the remaining issues raised in this
appeal pending certification to the Nevada Supreme Court.1 We have jurisdiction
under 28 U.S.C. § 1291. We review standing de novo, see Bernhardt v. County of
Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002), and we hold the district court erred
in dismissing for lack of standing.
1. The district court erred by concluding Mineral County lacked standing
because it sought relief solely on behalf of the general public as parens patriae.
Mineral County did not seek relief solely on behalf of the general public. Mineral
County also asserted a public trust claim on its own behalf, and Mineral County
may sue to vindicate its own interests. See United States v. City of Pittsburg, 661
F.2d 783, 787 (9th Cir. 1981) (explaining that political subdivisions “may ‘sue to
vindicate . . . their own proprietary interests’” (quoting In re Multidistrict Vehicle
Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973))).
1 Concurrent with this memorandum, we file an order certifying a question to the Nevada Supreme Court. Mineral County’s public trust claim for the reallocation of the waters of Walker River and the Takings Clause claims under both federal and Nevada law are held in abeyance pending the result of certification. 3 2. Mineral County meets each requirement for Article III standing: “injury,
causation, and redressability.” City of Oakland v. Lynch, 798 F.3d 1159, 1163 (9th
Cir. 2015). To satisfy these elements, Mineral County
must demonstrate that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action . . . ; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000)).
Injury in fact: Political subdivisions may establish injury in fact by asserting
harm to their own proprietary interests – particularly economic injury such as the
loss of tax revenues. See, e.g., City of Oakland, 798 F.3d at 1164 (“An expected
loss of tax revenue can constitute a sufficient injury [to a city] for purposes of
Article III standing.”); City of Sausalito, 386 F.3d at 1197, 1199 (holding
“Sausalito may sue to protect its own ‘proprietary interests’” and that its asserted
“management, public safety, economic, aesthetic, and natural resource harms” each
constituted Article III injury); accord City of Pittsburg, 661 F.2d at 787.
4 Even ignoring the alleged harm to its aesthetic and natural resource interests,
Mineral County alleged economic harm adequate to establish Article III injury.
The County’s amended complaint in intervention alleged that “[a]ctivities and
businesses attributable to the presence and use of Walker Lake represent[]
approximately 50% of the economy of Mineral County.” It also alleged the “total
loss of flows from Walker River into Walker Lake has degraded the quality of
water in Walker Lake substantially,” and that minimum flows into Walker Lake are
necessary for the “maintenance of the economy of Mineral County.” The County
also filed an affidavit in connection with its motion to intervene asserting that “loss
of water in the Lake” has decreased “fishing and other recreational activities,” and
that much of Mineral County’s tax revenue is tied to these activities. Under City of
Sausalito and City of Oakland, these harms to Mineral County’s economy establish
Article III injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(concluding “general factual allegations of injury” are sufficient at the pleading
stage).
Causation: These allegations also demonstrate causation because the
alleged harms are “fairly traceable” to the loss of water in Walker Lake, which is
caused at least in part by upstream appropriators.2 2 Although the parties dispute the cause of Walker Lake’s troubles, it seems (continued...) 5 Redressability: Finally, Mineral County’s requested relief – flows adequate
to restore the water level and quality in Walker Lake – would likely redress its
injuries. As alleged, the harm to fishing, recreational and other activity in Walker
Lake is directly related to the decline in water level and the accompanying
degradation in water quality.
Walker River Irrigation District (WRID) disputes the redressability prong of
standing, contending that even if the public trust doctrine applies, this court (or the
Nevada Supreme Court) cannot order the Nevada legislature to amend Nevada’s
water laws, and the legislature would be unlikely to do so.
WRID is correct that standing may be denied when “the prospect of remedial
benefit seems too remote [or] independent constraints foreclose any effective
remedy.” 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MONO COUNTY, County Counsel, No. 15-16342
Plaintiff-Appellee, D.C. No. 3:73-cv-00128-RCJ-WGC MINERAL COUNTY,
Intervenor-Plaintiff- MEMORANDUM* Appellant,
WALKER LAKE WORKING GROUP,
Defendant-Appellant,
and
UNITED STATES OF AMERICA,
Plaintiff,
WALKER RIVER PAIUTE TRIBE,
Intervenor-Plaintiff,
v.
WALKER RIVER IRRIGATION DISTRICT; NEVADA DEPARTMENT OF WILDLIFE; FENILI FAMILY
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. TRUST, c/o Peter Fenili and Veronica Fenili, Trustees; SIX N RANCH, INC., c/o Richard and Cynthia Nuti; MICHAEL NUTI; NANCY NUTI; RALPH E. NUTI; MARY E. NUTI; LAWRENCE M. NUTI; LESLIE NUTI; MICA FARMS, LLC, c/o Mike Faretto; JOHN AND LURA WEAVER FAMILY TRUST, c/o Lura Weaver, Trustee; SMITH VALLEY GARAGE, INC., c/o Dan Smith and Shawna Smith; DONALD GIORGI; LORIE MCMAHON; MERLE MCMAHON; CENTENNIAL LIVESTOCK; LYON COUNTY; ANNETT’S MONO VILLAGE; F.I.M. CORPORATION; R.N. FULSTONE COMPANY; JAMES T. FOUSEKIS, Trustee; CHRIS H. GANSBERG, Jr.; FAYE E. GANSBERG; TODD GANSBERG; HUNEWILL LAND & LIVESTOCK CO., INC.; DAVID SCEIRINE; PAMELA HAAS; VIRGINIA LAKE MUTUAL WATER COMPANY,
Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Argued and Submitted August 30, 2017 Pasadena, California
Before: TASHIMA, FISHER and BYBEE, Circuit Judges.
2 Mineral County appeals the dismissal of its claim that Nevada’s public trust
doctrine requires the modification of the 1936 Walker River Decree to ensure
minimum water flows reach Walker Lake. In this memorandum, we address only
the issue of standing. We reserve judgment on the remaining issues raised in this
appeal pending certification to the Nevada Supreme Court.1 We have jurisdiction
under 28 U.S.C. § 1291. We review standing de novo, see Bernhardt v. County of
Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002), and we hold the district court erred
in dismissing for lack of standing.
1. The district court erred by concluding Mineral County lacked standing
because it sought relief solely on behalf of the general public as parens patriae.
Mineral County did not seek relief solely on behalf of the general public. Mineral
County also asserted a public trust claim on its own behalf, and Mineral County
may sue to vindicate its own interests. See United States v. City of Pittsburg, 661
F.2d 783, 787 (9th Cir. 1981) (explaining that political subdivisions “may ‘sue to
vindicate . . . their own proprietary interests’” (quoting In re Multidistrict Vehicle
Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973))).
1 Concurrent with this memorandum, we file an order certifying a question to the Nevada Supreme Court. Mineral County’s public trust claim for the reallocation of the waters of Walker River and the Takings Clause claims under both federal and Nevada law are held in abeyance pending the result of certification. 3 2. Mineral County meets each requirement for Article III standing: “injury,
causation, and redressability.” City of Oakland v. Lynch, 798 F.3d 1159, 1163 (9th
Cir. 2015). To satisfy these elements, Mineral County
must demonstrate that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action . . . ; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000)).
Injury in fact: Political subdivisions may establish injury in fact by asserting
harm to their own proprietary interests – particularly economic injury such as the
loss of tax revenues. See, e.g., City of Oakland, 798 F.3d at 1164 (“An expected
loss of tax revenue can constitute a sufficient injury [to a city] for purposes of
Article III standing.”); City of Sausalito, 386 F.3d at 1197, 1199 (holding
“Sausalito may sue to protect its own ‘proprietary interests’” and that its asserted
“management, public safety, economic, aesthetic, and natural resource harms” each
constituted Article III injury); accord City of Pittsburg, 661 F.2d at 787.
4 Even ignoring the alleged harm to its aesthetic and natural resource interests,
Mineral County alleged economic harm adequate to establish Article III injury.
The County’s amended complaint in intervention alleged that “[a]ctivities and
businesses attributable to the presence and use of Walker Lake represent[]
approximately 50% of the economy of Mineral County.” It also alleged the “total
loss of flows from Walker River into Walker Lake has degraded the quality of
water in Walker Lake substantially,” and that minimum flows into Walker Lake are
necessary for the “maintenance of the economy of Mineral County.” The County
also filed an affidavit in connection with its motion to intervene asserting that “loss
of water in the Lake” has decreased “fishing and other recreational activities,” and
that much of Mineral County’s tax revenue is tied to these activities. Under City of
Sausalito and City of Oakland, these harms to Mineral County’s economy establish
Article III injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(concluding “general factual allegations of injury” are sufficient at the pleading
stage).
Causation: These allegations also demonstrate causation because the
alleged harms are “fairly traceable” to the loss of water in Walker Lake, which is
caused at least in part by upstream appropriators.2 2 Although the parties dispute the cause of Walker Lake’s troubles, it seems (continued...) 5 Redressability: Finally, Mineral County’s requested relief – flows adequate
to restore the water level and quality in Walker Lake – would likely redress its
injuries. As alleged, the harm to fishing, recreational and other activity in Walker
Lake is directly related to the decline in water level and the accompanying
degradation in water quality.
Walker River Irrigation District (WRID) disputes the redressability prong of
standing, contending that even if the public trust doctrine applies, this court (or the
Nevada Supreme Court) cannot order the Nevada legislature to amend Nevada’s
water laws, and the legislature would be unlikely to do so.
WRID is correct that standing may be denied when “the prospect of remedial
benefit seems too remote [or] independent constraints foreclose any effective
remedy.” 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3531.6 & nn.12, 13 (3d ed. 2017) (collecting cases). That is not the
case here, however. WRID sets out one possible outcome on the public trust issue.
But it is certainly plausible, under the public trust doctrine, that the court would
require officials to reserve whatever flows were necessary to uphold the public
trust as to Walker Lake. No independent constraint would preclude that outcome.
2 (...continued) clear that upstream appropriations play at least some part, along with declining precipitation levels and natural lake recession over time. 6 Mineral County, moreover, does not challenge Nevada’s statutory water laws, and
its requested relief – a modification of the Decree – would not require the
legislature to act. Thus, Mineral County’s requested remedy is among the
“remed[ies] that the court [would be] prepared to give.” Id.; see also id.
(discussing the “risk that standing will be denied because hasty remedial
determinations made at a preliminary stage do not reflect the full inventiveness that
could be exhibited after trial”).
The district court thus erred in holding Mineral County lacked standing to
bring its public trust claim.
3. The district court concluded Walker Lake is not within the Walker River
Basin, a determination Mineral County appeals. Although the question is not
disputed by the parties in this action, we have contemporaneously decided in
United States v. United States Board of Water Commissioners, No. 15-16316, that
Walker Lake is within the Walker River Basin.
4. The Clerk is advised that this is not a dispositive memorandum. This
appeal remains pending, but will be administratively closed as explained in our
concurrently filed Certification Order.