No. 15-16342 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MINERAL COUNTY, Intervener-Plaintiff-Appellant, WALKER LAKE WORKING GROUP, Defendant-Appellant, v. WALKER RIVER IRRIGATION DISTRICT, ET AL. Defendant-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA NO. 3:73-CV-00128-RCJ-WGC Honorable Robert Clive Jones BRIEF OF AMICUS CURIAE NATURAL RESOURCES DEFENSE COUNCIL AND SIERRA CLUB IN SUPPORT OF NEITHER SIDE John Echeverria Vermont Law School 164 Chelsea Street, P.O. Box 96 South Royalton, VT 05068 jecheverria@vermontlaw.edu 802-831-1386 Counsel for amici curiae Natural Resources Defense Council, Inc. and Sierra Club. i
TABLE OF CONTENTS TABLE OF AUTHORITIES... iii CORPORATE DISCLSOURE STATEMENT... v STATEMENT OF IDENTITY OF AMICI... v STATEMENT PURSUANT TO RULE 29(C)(5)... v SUMMARY OF ARGUMENT... 1 ARGUMENT... 2 CONCLUSION... 13 CERTIFICATE OF COMPLIANCE... 14 CERTICIATE OF SERVICE... 15 ii
TABLE OF AUTHORITIES Cases Page Boucher v. Shaw, 196 P.3d 959 (Nev. 2008). 3 Centurion Properties III, LLC v. Chicago Title Ins. Co., 793 F.3d 1087 (9th Cir. 2015)... 2, 3 Chapman v. Deutsche Bank Nat l Trust Co., 302 P.3d 1103 (Nev. 2013)... 3 Complaint of McLinn, 744 F.2d 677 (9th Cir. 1984)... 11 Gradillas v. Lincoln Gen. Ins. Co., 792 F.3d 1050 (9th Cir. 2015)... 3 Ill. Cent. R. Co. v. State of Ill., 146 U.S. 387 (1892).. 5 In re Water Use Permit Applications, 9 P.3d 409 (Haw. 2000) 7 Lawrence v. Clark Cty., 254 P.3d 606 (Nev. 2011). 4, 5 Lehman Bros. v. Schein, 416 U.S. 386 (1974).. 2 McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086 (9th Cir. 2012)... 2 Mineral Cty. v. State Dep t of Conservation & Nat. Res., 20 P.3d 800 (Nev. 2001). 5, 8, 11 Nat l Audubon Soc y v. Superior Court, 658 P.2d 709 (Cal. 1983).. 6, 7 iii
Cases TABLE OF AUTHORITIES (continued) Page Perez Farias v. Glob. Horizons, Inc., 668 F.3d 588 (9th Cir.2011).. 2 Toner for Toner v. Lederle Labs., Div. of Am. Cyanamid Co., 779 F.2d 1429 (9th Cir. 1986)... 2 Volvo Cars of N. Am., Inc. v. Ricci, 137 P.3d 1161 (Nev. 2006). 4, 10 Court Rules Federal Rules of Appellate Procedure Rule 29(a).. v Nevada Rules of Appellate Procedure Rule 5(a).. 3, 10 Other Authorities The Institutes of Justinian, Lib. II, Tit. I, 1 (Thomas Collett Sandars trans. 5th London ed. 1876). 5 iv
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 29(c)(1), amicus Natural Resources Defense Council (NRDC) is a New York nonprofit corporation, does not have shareholders, and does not have parent or subsidiary corporations. Amicus Sierra Club is a California nonprofit public benefit corporation, does not have shareholders, and does not have parent or subsidiary corporations. STATEMENT OF IDENTITY OF AMICI Pursuant to Federal Rule of Appellate Procedure 29(c)(4), amicus Natural Resources Defense Council and the Sierra Club are nonprofit corporations dedicated to preserving the health of water and other natural resources for future generations, as described in the accompanying Motion of Natural Resources Defense Council and the Sierra Club for Leave to File Brief Amicus Curiae in Support on Neither Side. Amici s authority to file this brief is derived from Federal Rule of Appellate Procedure 29. STATEMENT PURSUANT TO RULE 29(C)(5) This undersigned counsel affirms that he authored this brief in whole, that no funds were contributed by amici or the undersigned counsel in the connection with the preparation of the brief; and that no other persons contributed money that was intended to fund preparing or submitting the brief. v
SUMMARY OF THE ARGUEMENT Natural Resources Defense Council and the Sierra Club (amici) submit this brief amicus curiae in support of one of appellants alternative suggestions: that the Court certify to the Nevada Supreme Court the state law question of how the Nevada public trust doctrine relates to the Nevada system of appropriative water rights. See Opening Brief of Appellants Mineral County and Walker Lake Working Group 11, 39 n.7 (filed April 13, 2016). While amici basically support the position of appellants, they are filing this brief in support of neither side. Unlike the appellants, who urge the Court to reverse the decision below (while also suggesting that the Court consider certifying the public trust issue to the Nevada Supreme Court), the amici simply urge that the Court issue a certification order. There is a unique and especially compelling argument for certification of the public trust question presented by this case. A number of years ago, the Nevada Court explicitly recognized that the federal courts hearing this specific case might eventually wish to certify a question about the Nevada public trust doctrine, and the Nevada Supreme Court signaled that it was ready, able, and willing to accept such a certification when the time was right to do so. See Mineral Cty. v. State Dep t of Conservation & Nat. Res., 20 P.3d 800 (Nev. 2001) (observing that if the federal District Court granted the appellants then-pending motion to intervene, the federal courts can certify a question regarding the public trust doctrine [to the 1
Nevada Supreme Court] pursuant to [Nevada Rule of Appellate Procedure] 5. ). This Court should now take up the invitation issued by the Nevada Supreme Court fifteen years ago. Moreover, apart from this unique and compelling circumstance, this case plainly meets the established standards for federal court certification of a state law question to a state s highest court in order to promote comity between the federal and state courts. ARGUMENT Whether to certify an issue of state law to a state court lies within a federal court s sound discretion. Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). When a federal court confronts a question of state law that the state s highest court has not resolved, the federal court ordinarily has the authority to resolve the question by predicting how the state court would resolve the issue, at least for the purpose of the particular case then pending before the federal court. But this Court has also recognized that certification is frequently a useful means to obtain authoritative answers to unclear questions of state law. Centurion Properties III, LLC v. Chicago Title Ins. Co., 793 F.3d 1087, 1089 (9th Cir. 2015) (quoting Toner for Toner v. Lederle Labs., Div. of Am. Cyanamid Co., 779 F.2d 1429, 1432 (9th Cir. 1986). See also Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974) (observing that certification may save time, energy, and resources and help[ ] build a 2
cooperative judicial federalism. ). This Court has said that certification is particularly appropriate in cases in which the issues of law are complex and have significant policy implications. Centurion Properties, 793 F.3d at 1089 (quoting McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1091 (9th Cir. 2012) (quoting Perez Farias v. Glob. Horizons, Inc., 668 F.3d 588, 593 (9th Cir.2011)). Given the obvious practical utility of the certification process for obtaining an authoritative resolution of an unresolved state law issue, this Court has frequently invoked the certification process. See, e.g., Centurion Properties III, LLC v. Chicago Title Ins. Co., 793 F.3d 1087 (9th Cir. 2015); Gradillas v. Lincoln Gen. Ins. Co., 792 F.3d 1050 (9th Cir. 2015). Likewise, the Nevada Supreme Court has frequently accepted certifications of state law issues from this Court. See, e.g., Chapman v. Deutsche Bank Nat l Trust Co., 302 P.3d 1103, 1105 (Nev. 2013); Boucher v. Shaw, 196 P.3d 959 (Nev. 2008). It is plain that this case meets the standards for certification established by the Nevada Supreme Court. Therefore, it can be predicted with confidence that if this Court were to certify a question about the Nevada public trust doctrine to the Nevada Supreme Court, that court would accept the certified question. Rule 5(a) of the Nevada Rules of Appellate Procedure provides as follows: The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States 3
or of the District of Columbia, a United States District Court, or a United States Bankruptcy Court when requested by the certifying court, if there are involved in any proceeding before those courts questions of law of this state which may be determinative of the cause then pending in the certifying court.... Nev. R. App. P. 5(a). For the purpose of applying this standard the Nevada Supreme Court has developed a three-part test to determine whether certification is appropriate, including whether (1) the Nevada Supreme Court s answer to the certified question may be determinative of part of the federal case, (2) there is no controlling Nevada precedent, and (3) the answer to the certified will help settle important questions of law. Volvo Cars of N. Am., Inc. v. Ricci, 137 P.3d 1161, 1163-1644 (Nev. 2006). The Nevada Supreme Court has characterized these factors as embodying a liberal standard on certification that best serves the purposes of NRAP 5: federalism, comity and judicial efficiency. Id. at 1164. This case unquestionably meets the standards set by the Nevada Supreme Court for certification of a question about the Nevada public trust doctrine to the Nevada Supreme Court. The Nevada Supreme Court has clearly resolved the basic question of whether there is a Nevada public trust doctrine. See Lawrence v. Clark Cty., 254 P.3d 606 (Nev. 2011). Moreover, the reasoning of the Nevada Supreme Court s public trust decisions plainly supports the conclusion that the public trust doctrine applies to appropriate water interests. Yet, the Nevada Supreme Court 4
has never directly and explicitly addressed the specific question of how the Nevada public trust doctrine relates to the prior appropriation doctrine. Lawrence was the first case in which the Nevada Supreme Court expressly recognized the public trust doctrine, but the Court noted in that case that the doctrine is ancient, id. at 608, and that the state has previously adopted the tenets on which it is based. Id. at 609. While the doctrine has roots in the common law, it is distinct from other common law principles because it is based on a policy reflected in the Nevada Constitution, Nevada statutes, and the inherent limitations on the state s sovereign power... Id. at 613. In a nutshell, the doctrine stands for the principle that the public possesses inviolable rights to certain natural resources, and that [b]y the law of nature these things are common to mankind the air, running water, the sea and consequently the shores of the sea. Id. at 608 (quoting The Institutes of Justinian, Lib. II, Tit. I, 1 (Thomas Collett Sandars trans. 5th London ed. 1876)). The Lawrence case involved perhaps the most familiar and traditional application of the public trust doctrine, to support public rights in submerged lands beneath the state s navigable waters. Cf. Ill. Cent. R. Co. v. State of Ill., 146 U.S. 387 (1892) (seminal U.S. Supreme Court public trust case involving submerged lands). The specific factual question presented in Lawrence (which the Nevada 5
Supreme Court did not actually resolve) was whether the lands at issue in that case qualified as submerged lands as of the date of Nevada s statehood. But the Nevada Supreme Court has never explicitly addressed how the public trust doctrine applies to appropriative water interests or, more specifically, how the public trust doctrine should be reconciled with the Nevada system of appropriative water rights. But cf. Mineral Cty., 20 P.3d at 808 (concurring opinion of Rose, J., joined by Shearing, J.) (arguing that the public trust doctrine operates simultaneously with the system of prior appropriation, and that the public trust doctrine should be recognized as applying to Walker Lake and its tributaries). While it is entirely logical based on prior Nevada precedent to apply the public trust doctrine to appropriative water rights, the application of the doctrine to appropriative water rights raises distinct issues that are not fully answered by the Nevada Supreme Court s recognition of the public trust in submerged lands. By way of illustration, the California Supreme Court recognized in Nat l Audubon Soc y v. Superior Court, 658 P.2d 709 (Cal. 1983), notwithstanding that court s prior precedent recognizing the public trust in tidelands, that the application of the public trust doctrine to appropriative rights raises distinct issues: This case brings together for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has 6
dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes. Id. at 712 (emphasis added). The California Supreme Court then proceeded to issue a highly nuanced decision intended to integrate the teachings and values of both the public trust and the appropriative water rights system. Id. The California Court declined to follow the teachings of either doctrine to its logical extreme. The Court reasoned that such an approach would lead to an unbalanced structure, one which would either decry as a breach of trust appropriations essential to the economic development of this state, or deny any duty to protect or even consider the values promoted by the public trust. Id. at 727. Instead, the court developed legal rules accommodating the two doctrines that recognize (1) [t]he state as sovereign retains continuing supervisory control over public trust resources, (2) no party can claim a vested right to appropriate water in a manner harmful to the interests protected by the public trust; (3) the state can grant usufructuary licenses that will permit an appropriator to take water from flowing streams and use that water.... even though this taking does not promote, and may unavoidably harm, the trust uses at the source stream, and (4) the state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Id. at 727-28. See also In re Water Use Permit Applications, 7
9 P.3d 409 (Haw. 2000) (recognizing that private water rights in Hawaii are subject to the public trust doctrine). The National Audubon case is also instructive for present purposes because the California Supreme Court issued its landmark decision in that case after a federal District Court in California referred the question of the interrelationship between California s public trust doctrine and its water rights system to the California Supreme Court. Nat l Audubon Soc y, 658 P.2d at 717. Thus, National Audubon illustrates the importance and value of judicial comity in the context of a case raising important questions about the application of a state public trust doctrine. It is presently unknown whether the Nevada Supreme Court will adopt the same approach as the California Supreme Court to integrating the public trust doctrine and the appropriative water rights system, or whether it will tackle this challenge in a different fashion than the California Supreme Court. The simple fact is that the Nevada Supreme Court has not yet had an opportunity to resolve this question. About a decade ago, Mineral County and the Walker Lake Working Group (apparently tiring of the slow pace of this case before the federal District Court) initiated an original proceeding in the Nevada Supreme Court based on the public trust doctrine. They requested a writ of prohibition to prevent the state from granting additional rights to withdraw water from the Walker River system and a 8
writ of mandamus to require the State Engineer to review past water allocations. See Mineral Cty. v. State Dep t of Conservation & Nat. Res., 20 P.3d 800 (Nev. 2001). Without questioning the importance of the issues raised, the Nevada Supreme Court ruled that it lacked jurisdiction to entertain the petition, reasoning that the present water adjudication pending in the federal court system is a type of in rem proceeding conferring continuing and exclusive jurisdiction over disputes over allocation of the Walker River on the federal courts. Id. at 806. Thus, the Court reasoned, it lacked jurisdiction to address the application of the Nevada public trust doctrine to appropriative water rights in the context of an original case. But, as mentioned at the beginning of this brief, the Nevada Supreme Court in Mineral County explicitly indicated that it was willing to accept a certified question from the federal courts about the relationship between the Nevada public trust doctrine and the Nevada system of appropriative water rights. Id. at 807, n.35. Based all of the foregoing circumstances, the standards for certification of an unresolved issue of state law are unquestionably met. The relationship between the Nevada public trust doctrine and the Nevada system of appropriative water rights presents an issue that the Nevada Supreme Court has not had an opportunity to explicitly address. This question presents complex issues, as exhibited by the discussion of the relationship between these two doctrines by the California 9
Supreme Court. The resolution of this issue also plainly has significant policy implications, given the enormous importance of water resources in the arid environment of Nevada, and the potentially important consequences of decisions about how waters throughout the state are allocated between consumptive uses and instream uses to protect public trust values. The issue is also potentially determinative of a part of this case: if the Nevada Supreme Court agrees with the federal District Court that the public trust doctrine cannot properly be relied upon to constrain the exercise of appropriative water rights, that will lead to an order affirming the District Court s dismissal of plaintiffs complaint. On the other hand, if the Nevada Supreme Court arrives at some accommodation of the two doctrines, that resolution will lead to a reversal of the District Court order, allowing this public trust case to proceed. The other two factors the Nevada Supreme Court has determined to be relevant in deciding whether to accept a certified question also support certification of this question. First, there is suggestive but no controlling [Nevada] precedent on this issue and the answer to the certified will unquestionably help settle an important question of law. Volvo Cars, 137 P.3d at 1163. Second, the rationale for certification based on considerations of comity is especially compelling in this case given that the Nevada Supreme Court has already signaled its willingness to accept this certified question. 10
Finally, it is noteworthy that Mineral County explicitly suggested before the District Court that the District Court consider certifying the public trust issue to the Nevada Supreme Court. See Mineral County s Points and Authorities in Response to Walker River Irrigation District s Motion to Dismiss or in the Alternative to Stay at 28, Mineral County v. Walker River Irrigation District, In Equity No. C- 125-RCJ, Subproceeding C-125-C, 3:73-CV-00128-RCJ-WGC (dated May 30, 2014) ( [i]f.... the Court is inclined to stay the exercise of its jurisdiction with regard to any issue, the proper procedure for the Court to follow would be to certify the legal question or questions to the Nevada Supreme Court for decision pursuant to Nev. R. App. P. 5(a) ). In addition, the Walker River Irrigation District also addressed the possibility of certification of the public trust issue before the District Court. See Walker River Irrigation District s Reply Points and Authorities in Support of Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(B)(1), or in the Alternative, to stay Proceedings with Respect to Mineral County s Amended Complaint in Intervention at 14 n. 7, Mineral County v. Walker River Irrigation District, In Equity No. C-125-RCJ, Subproceeding C-125-C, 3:73-CV- 00128-RCJ-WGC (dated June 30, 2014). 1 Nonetheless, despite the fact that both 1 The Walker River Irrigation District also suggested that the District Court might stay the plaintiffs public trust claim and that the District Court direct the plaintiffs to commence a new action in the Nevada courts to attempt to vindicate their claims. That would have been a pointless exercise in view of the Nevada Supreme Court s recognition that the federal District Court has continuing and exclusive 11
of these opposing parties raised the option of certification, the District Court ignored the suggestion. On occasion, the Court has expressed discomfort about granting requests for certification made by parties for the first time after losing on the issue on the merits in the court below. See Complaint of McLinn, 744 F.2d 677, 681 (9th Cir. 1984) (when a party requests certification for the first time after losing on the issue, that party must show particularly compelling reasons for certifying the question ). By contrast, the question is presented in a very different light when, as here, the appellants explicitly proposed certification in the District Court, but the District Court ignored the request. Indeed, the fact that appellants raised the option of certification in the District Court, but the District Court ignored it, argues strongly for certifying the question now. jurisdiction over conflicting claims to the allocation of the water in the Walker River basin. See Mineral Cty., 20 P.3d at 806. If the plaintiffs commenced a new action relating to the Walker River in the Nevada courts, those courts would almost certainly dismiss that new case for lack of jurisdiction. The only sure way to obtain an authoritative determination from the Nevada Supreme Court about the relationship between the Nevada public trust doctrine and the Nevada appropriative water rights system is via certification to the Nevada Supreme Court. 12
CONCLUSION For the foregoing reasons, the Court should certify to the Nevada Supreme Court the unresolved issue of the relationship between the Nevada public trust doctrine and the Nevada system of appropriative water rights. Respectfully submitted, /s/ John Echeverria Vermont Law School 164 Chelsea Street South Royalton, VT 05068 jecheverria@vermontlaw.edu 802-831-1386 Counsel for amici curiae Natural Resources Defense Council and Sierra Club. April 19, 2016 13
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,152 words, excluding the parts of the brief exempted by Fed. R. App. P. 29 and 32. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the types style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word Times New Roman font, 14-point. /s/ John Echeverria Counsel for Amici Curiae April 19, 2016 14
CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION I hereby certify that on this 19 th day of April, 2016, I electronically filed this Brief of Amicus Curiae Natural Resource Defense Council, Inc. and Sierra Club in support of neither side with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit through the Court s CM/ECF System. I further certify that the parties represented by counsel will be served through the CM/ECF System. /s/ John Echeverria Counsel for Amici Curiae 15