No.

15-16342 and 15-16488

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINERAL COUNTY, Intervenor-Plaintiff-Appellant,

WALKER LAKE WORKING GROUP, Defendant-Appellant

v.

WALKER RIVER IRRIGATION DISTRICT, Defendant-Appellee.

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 AMICI LAW PROFESSORS IN SUPPORT OF APPELLANTS

David R. Owen, SBN 222314 Richard M. Frank, SBN 63482

Professor of Law Professor of Environmental Practice
UC Hastings College of the Law UC Davis School of Law
200 McAllister Street 400 Mrak Hall Drive
San Francisco, CA 94102 Davis, CA 95616
(415) 703-8285
owendave@uchastings.edu

ATTORNEYS FOR AMICI LAW PROFESSORS

(individual professors listed on the following pages)
 Amici’s institutional affiliations are listed solely for identification purposes.

Amici’s participation in this brief reflects their personal views, not the positions of

the institutions at which they are employed.

Amici are the following professors: Robert H. Abrams, Professor of Law,

Florida Agricultural and Mechanical University College of Law; Adell L. Amos,

Associate Dean and Clayton R. Hess Professor of Law, University of Oregon,

School of Law; William L. Andreen, Edgar L. Clarkson Professor of Law and

Director, Alabama-ANU Exchange Program, The University of Alabama School of

Law; Craig Anthony (Tony) Arnold, Boehl Chair in Property and Land Use,

Professor of Law and Affiliated Professor of Urban and Public Affairs, Chair of

the Center for Land Use and Environmental Responsibility, University of

Louisville; Hope Babcock, Director, Institute for Public Representation

Environmental Law Clinic, Professor of Law, Georgetown University Law Center;

Reed D. Benson, Professor of Law, Chair, Natural Resources & Environmental

Law Program, University of New Mexico School of Law; Michael C. Blumm,

Jeffrey Bain Faculty Scholar & Professor of Law, Lewis and Clark Law School;

Michelle Bryan, Professor of Law, Co-Director, Land Use & Natural Resources

Clinic, University of Montana School of Law; J. Peter Byrne, John Hampton

Baumgartner, Jr. Chair in Real Property Law, Faculty Director, Georgetown

Climate Center, Georgetown University Law Center; Federico Cheever, Professor

of Law, Co-Director of the Environmental and Natural Resources Law Program,

Sturm College of Law, University of Denver; Holly Doremus, James H. House and

Hiram H. Hurd Professor of Environmental Regulation; Associate Dean, Faculty

Development and Research; Co-Director, Center for Law, Energy & the

Environment, University of California, Berkeley School of Law; Harrison C.

Dunning, Professor of Law Emeritus, UC Davis School of Law; Heather Elliott,

Professor of Law, The University of Alabama School of Law; Richard M. Frank,

Professor of Environmental Practice and Director, California Environmental Law

and Policy Center, University of California, Davis School of Law; Eric T.

Freyfogle, Swanlund Chair and Professor of Law, University of Illinois at Urbana-

Champaign; Brian E. Gray, Professor Emeritus, University of California Hastings

College of the Law; Sean B. Hecht, Co-Executive Director, Emmett Institute on

Climate Change and the Environment, Evan Frankel Professor of Policy and

Practice, UCLA School of Law; Noah D. Hall, Associate Professor, Wayne State

University Law School, Scholarship Director, Great Lakes Environmental Law

Center; Oliver A. Houck, Professor of Law, Tulane University Law School; Robert

B. Keiter, Wallace Stegner Professor of Law, University of Utah College of Law;

Paul Stanton Kibel, Professor of Law, Golden Gate University School of Law;

Alexandra B. Klass, Distinguished McKnight University Professor, University of

Minnesota Law School; Christine A. Klein, Chesterfield Smith Professor of Law,

ii
University of Florida Research Professor, Director, LL.M. Program in

Environmental & Land Use Law, University of Florida Levin College of Law; John

D. Leshy, Harry D. Sunderland Distinguished Professor of Law Emeritus,

University of California, Hastings College of the Law; David R. Owen, Professor

of Law, University of California, Hastings College of the Law; Michael Pappas,

Associate Professor of Law, University of Maryland, Francis King Carey School of

Law; Patrick Parenteau, Senior Counsel, Professor of Law, Vermont Law School;

Justin Pidot, Associate Professor of Law, Sturm College of Law, University of

Denver; Zygmunt J.B. Plater, Professor of Law, Boston College Law School; Erin

Ryan, Professor of Law, Florida State University College of Law; Melissa Scanlan,

Associate Dean for Environmental Programs, Director, Environmental Law

Center, Professor of Law, Vermont Law School; Mark Squillace, Professor of Law,

University of Colorado Law School; A. Dan Tarlock, Distinguished Professor of

Law and Director of the Program in Environmental and Energy Law, Chicago-

Kent College of Law, Illinois Institute of Technology; Gerald Torres, Jane M.G.

Foster Professor, Faculty Fellow, Atkinson Center for a Sustainable Future,

Cornell Law School; Mary Christina Wood, Philip H. Knight Professor, Faculty

Director, Environmental and Natural Resources Law Center, University of Oregon

School of Law; Sandra Zellmer, Robert B. Daugherty Professor, Nebraska College

of Law.

iii
 TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................. 3

INTRODUCTION .................................................................................. 7

STATEMENT OF INTEREST............................................................... 8

FRAP 29(c)(5) STATEMENT ............................................................... 8

ARGUMENT .......................................................................................... 8

I. THE PUBLIC TRUST DOCTRINE IS A WELL-ESTABLISHED

PRINCIPLE OF NEVADA STATE LAW. ................................. 8

A. The Nevada Supreme Court’s Decision

in Lawrence v. Clark County. ............................................ 9

B. Other Important Nevada Public Trust Precedents. ............ 12

C. Nevada’s Adoption of the Public Trust Doctrine is Consonant

with the Public Trust Jurisprudence of Many Other
States. ................................................................................. 14

1. Other Ninth Circuit States Have Embraced the Public

Trust Doctrine. ......................................................... 15

2. The Nevada Supreme Court’s Public Trust Decisions

Rely on the Public Trust Precedents of other Western
States. ....................................................................... 18

II. TAKINGS DOCTRINE WOULD NOT PREVENT NEVADA’S

PUBLIC TRUST DOCTRINE FROM EVOLVING ................... 20

A. Fish and Dams. ................................................................... 21

B. The Demise of Natural Flow Riparian Rights. .................. 24

C. The Continuing Emergence of Groundwater Law. ............ 25

1
 D. The Rise of Prior Appropriation. ....................................... 27

E. Legal Principles Supporting Water Law’s Evolutionary

History. ............................................................................... 31

III. CERTIFICATION TO THE NEVADA SUPREME COURT..... 35

CONCLUSION ....................................................................................... 36

2
 TABLE OF AUTHORITIES

Cases
Application of Filippini, 202 P.2d 535 (Nev. 1949) ..................................... 30

Arizona Center for Law in the Public Interest v. Hassell

837 P.2d 158 (Az. 1991) ............................................................................... 13

Baxley v. Alaska, 958 P.2d 422 (Alaska 1998) ............................................. 13

Cline v. Am. Aggregates Corp., 15 Ohio St. 3d 384 (1984) ......................... 23

Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882) ...................................... 26

Eddy v. Simpson, 3 Cal. 249 (1853).............................................................. 30

Esplanade Properties, LLC v. City of Seattle,
307 F.3d 978 (9th Cir. 2002) ........................................................................ 15

Frazier v. Brown, 12 Ohio St. 294 (1861) .................................................... 23

Galt v. State Department of Fish, Wildlife and Parks,

731 P.2d 912 (Mont. 1987) ........................................................................... 14

Holyoke Co. v. Lyman, 82 U.S. 500 (1872) .................................................. 20

Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908) .................... 31

Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892) ..................... 17
In re Water Use Permit Applications, 9 P.3d 409 (Haw. 2000) ................... 14

In re Waters of Long Valley Creek Stream System,

599 P.2d 656 (Cal. 1979) .............................................................................. 27

Jacobs Ranch, L.L.C. v. Smith, 148 P.3d 842 (Okla. 2006) ......................... 24

Kootenai Environmental Alliance v. Panhandle Yacht Club,

671 P.2d 1085, (Id. 1983) ....................................................................... 12, 16

Lawrence v. Clark County, 254 P.3d 606 (Nev. 2011) ......................... passim

3
Lucas v. South Carolina Coastal Comm’n, 505 U.S. 1003 (1992) .............. 32
Lux v. Haggin, 4 P. 919 (Cal. 1886) ....................................................... 25, 27

Marks v. Whitney, 491 P.2d 374 (Cal. 1971) ................................................ 13

Martin v. Bigelow, 2 Aik. 184 (Vt. 1827). ................................................... 22

Merritt v. Parker, 1 N.J.L. 460 (1795) ......................................................... 22

Mineral County v. State Department of Conservation,
20 P.3d 800 (Nev. 2001) ............................................................. 10, 11, 16, 33

Montana Coalition for Stream Access, Inc. v. Curran,

682 P.2d 163 (Mt. 1984) ............................................................................... 14

Morse v. Oregon Div. of State Lands, 590 P.2d 709 (Or. 1979) .................. 14

National Audubon Society v. Superior Court,

658 P.2d 709 (Cal. 1983) ........................................................................ 11, 13

Orion Corporation v. State, 747 P.2d 1062 (Wash. 1987) ........................... 15

Penn. Coal Co. v. Mahon, 260 U.S. 393 (1922)........................................... 30

People v. California Fish Co., 138 P. 79 (Cal. 1913) .................................. 16

Reno Smelting, Milling & Reduction Works v. Stevenson,
21 P. 317 (Nev. 1889) ................................................................................... 26

State Engineers v. Cowles Bros., Inc., 478 P.2d 159 (Nev. 1970) ........... 9, 31
State of California v. Superior Court (Lyon), 625 P.2d 239 (Cal. 1981) ..... 13

State v. Beardsley, 79 N.W. 138 (Iowa 1899) .............................................. 20

State v. Bunkowski, 503 P.2d 1231 (Nev. 1972)............................... 10, 16, 31

SW. Eng’g Co. v. Ernst, 291 P.2d 764 (Ariz. 1955) ..................................... 24

United States v. Willow River Power Co., 324 U.S. 499 (1945) .................. 32

Vansickle v. Haines, 7 Nev. 249 (1872) ....................................................... 26

4
Williams v. City of Wichita, 374 P.2d 578 (Kan. 1962) ............................... 24
Wilson v. Welch, 7 P. 341 (Or. 1885) ........................................................... 14

Statutes
Act of Oct. 1785, 1785 Va. Acts. Ch. LXXXII ............................................ 20

Idaho Code §§ 58-1201 to 58-1203 (1996) .................................................. 12

Nevada Revised Statute § 533.025 ....................................................... 8, 9, 30

Oregon Water Rights Act, Or. Rev. Stat. § 537.334 (2009)......................... 14

Other Authorities
Alexandra B. Klass, Modern Public Trust Principles: Recognizing Rights
and Integrating Standards, 82 NOTRE DAME L. REV. 699 (2006) .............. 8

BARTON THOMPSON, JR. ET AL., LEGAL CONTROL OF WATER RESOURCES

(5th ed. 2013)........................................................................... 25, 28, 31, 32

Dave Owen, Taking Groundwater, 91 WASH. U. L. REV. 253 (2013) ......... 23

David B. Schorr, Appropriation and Agrarianism: Distributive Justice in the

Creation of Property Rights, 32 ECOLOGY L.Q. 3 (2005) ........................ 26

John F. Hart, Fish, Dams, and James Madison: Eighteenth-Century Species

Protection and the Original Understanding of the Takings Clause, 63 MD.
L. REV. 287 (2004). ............................................................................. 19, 20
JOHN WALDMAN, RUNNING SILVER: RESTORING ATLANTIC RIVERS AND THEIR
GREAT FISH MIGRATIONS (2014) ............................................................... 19

Joseph L. Sax, The Constitution, Property Rights, and the Future of Water
Law, 61 U. COLO. L. REV. 257 (1990)........................................... 18, 22, 28

MICHAEL BLUMM & MARY WOOD, THE PUBLIC TRUST DOCTRINE IN

ENVIRONMENTAL AND NATURAL RESOURCES LAW (2013) ....................... 15

MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860

(1977). ....................................................................................................... 22
Robert H. Abrams, Water Law Transitions, 66 S.C. L. Rev. 597 (2015) .... 22

5
Robin Kundis Craig, A Comparative Guide to the Eastern Public Trust
Doctrine: Classifications of States, Property Rights, and State Summaries,
16 PENN. ST. ENVTL. L. REV. 1 (2007) ...................................................... 15

Robin Kundis Craig, Comparative Guide to the Western States' Public Trust
Doctrines: Public Values, Private Rights, and the Evolution toward an
Ecological Public Trust, 37 ECOLOGY L.Q. 53 (2010) ............................. 15

STUART BANNER, AMERICAN PROPERTY: A HISTORY OF HOW, WHY, AND

WHAT WE OWN (2011) .............................................................................. 29

Constitutional Provisions
Alaska Const. Art. VIII, § 3 .......................................................................... 13

6
 INTRODUCTION

Amici write to respond to one element of the district court’s opinion.

In multiple places, the district court asserted that the State of Nevada could

not invoke the public trust doctrine as a limitation upon appropriative water

rights because such limitations would amount to a taking, and thus would

contravene the Fifth Amendment of the United States Constitution. The

district court seemed to ground this assertion in an assumption that the

public trust doctrine was something new in Nevada law, and in a broader

belief that appropriative water rights, once created, are not subject to

regulatory adjustment. As amici explain, the district court’s positions are

wrong in two key ways. First, the district court misperceived the Nevada

court decisions explaining that state’s public trust doctrine. Second, the

district court’s positions misunderstand basic principles of takings doctrine

and water law.

On both of these points, existing law is sufficiently clear that, in

amici’s view, this Court does not need additional guidance from the courts

of Nevada. Nevertheless, amici’s brief closes by noting that if this Court

believes it would benefit from additional clarification of Nevada’s public

trust doctrine, then a referral to the Nevada Supreme Court would be

appropriate.

7
 STATEMENT OF INTEREST

Amici are professors and scholars who teach, research, and write on

water and property law. Amici teach courses that cover the public trust

doctrine and the takings clause, and many amici also have written articles,

books, and other scholarly works about the public trust doctrine and the

takings clause. Because of that expertise, amici can inform the court about

the relationships among takings doctrine, the public trust doctrine, and water

law. Those relationships were a central focus of the district court’s lengthy

dicta, and amici hope this brief will assist this Court as it seeks to apply

more established legal doctrines to the facts of the case at hand.

FRAP 29(c)(5) STATEMENT

No party authored any part of this brief or contributed money toward

its submission. In addition, no individual has contributed money to fund this

brief.

ARGUMENT

I.THE PUBLIC TRUST DOCTRINE IS A WELL-ESTABLISHED

PRINCIPLE OF NEVADA STATE LAW

The decision below reflects a begrudging analysis and application of

the public trust doctrine in Nevada. The district court suggested, in dicta,

that the Nevada Supreme Court embraced the public trust doctrine under the

mistaken impression that it was somehow obligated to do so under federal

8
law. It then went on to opine—also in dicta—that application of the public

trust under state law to the natural resources at issue in this case would

perforce be unconstitutional.

This excursion into public trust principles is surprising, not least

because the lower court had already ruled, as a threshold matter, that the

plaintiffs lacked standing under federal law to bring the present action. And

after proceeding to the merits, the lower court articulated an unprecedented

version of the public trust doctrine, an error that deserves correction on

appeal.

In fact, the public trust doctrine is a well-settled principle of Nevada

state law, fully applicable to the resources at issue in this case. Several

Nevada reported decisions so hold. Under principles of federalism and

comity, they should have been respected and applied by the court below.

A. The Nevada Supreme Court’s Decision in Lawrence v. Clark

County

The district court below characterized Nevada’s “putative” public

trust doctrine as a recent creation of Nevada common law, derived, perhaps,

from a misguided reading of federal precedent. That characterization is

belied by the explicit language of the Nevada Supreme Court’s decision in

Lawrence v. Clark County, 254 P.3d 606 (Nev. 2011), the case in which the

9
Nevada Supreme Court most comprehensively analyzed the public trust

doctrine.

In Lawrence, a unanimous Nevada Supreme Court traced the origins

of Nevada public trust principles back to ancient Roman and English law;

documented the doctrine’s development over the past two centuries in the

United States; and concluded that the public trust is fully applicable in

Nevada “given the public’s interest in Nevada’s waters and the law’s

acknowledgment of that interest.” 254 P.3d at 607. The Lawrence court

took pains to explain that “the public trust doctrine [in Nevada] is not simply

a common law remnant.” Id. at 612. Rather, “in addition to the Nevada

caselaw…public trust principles are contained in Nevada’s Constitution and

statutes and are inherent from inseverable restraints on the state’s sovereign

powers.” Ibid.1

Specifically, the Nevada Supreme Court concluded that the “gift

clause” of the Nevada Constitution—which bars transactions disbursing

state funds if not made for a public purpose—“infers the people’s intent to

1
This is a common practice; many states have embedded public trust
principles in statutory and constitutional law as well as in court decisions.
See generally Alexandra B. Klass, Modern Public Trust Principles:
Recognizing Rights and Integrating Standards, 82 NOTRE DAME L. REV. 699
(2006).

10
constrain the Legislature’s ability to alienate public trust lands as well as

public funds.” (Lawrence, 254 P.3d at 611.)

Nevada state statutes, observed the Lawrence court, also reflect

longstanding public trust principles. One prominent example, stressed the

Nevada Supreme Court, is Nevada Revised Statute section 533.025, which

provides that “[t]he water of all sources of water supply within the

boundaries of the State whether above or beneath the surface of the ground,

belongs to the public.” Accordingly,

water of this state do[es] not belong to the state to use for any
purpose, but only for those purposes that comport with the public’s
interest in the particular property, exemplifying the fiduciary
principles at the heart of the public trust doctrine. In sum, …NRS
533.025 effectively statutorily codif[ies] the principles behind the
public trust doctrine in Nevada.” (Id. at 613.)

Furthermore, concluded the Nevada Supreme Court, public trust principles

reflect an inherent and “inseverable restraint on the state’s sovereign power.”

(Ibid.)

[I]n sum, although the public trust 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 a state’s sovereign power…”
(Ibid.)

11
 B. Other Important Nevada Public Trust Precedents

The Nevada Supreme Court did not write on a blank slate when it

confirmed, in Lawrence, the public trust doctrine’s status as a cornerstone of

Nevada natural resources law. The Lawrence decision itself acknowledged

the doctrine’s longevity, and other Nevada Supreme Court decisions

underscore the doctrine’s longstanding applicability in the Silver State.

In State Engineers v. Cowles Bros., Inc., 478 P.2d 159 (Nev. 1970),

for example, the Nevada Supreme Court held that the State of Nevada owns

the beds and related water resources of Winnemuca Lake as public trust

resources, because the waterbody was navigable at the time of statehood

and, therefore, constitute state sovereign property. 478 P.2d at 160-61.

State v. Bunkowski, 503 P.2d 1231 (Nev. 1972), involved a dispute

over competing ownership claims to the bed and banks of the Carson River,

a navigable waterway in Nevada. After citing with approval an extensive

list of reported public trust decisions from other state courts, the Nevada

Supreme Court held: “[t]he State holds the subject lands in trust for public

use.” 503 P.2d at 1238.

Another Nevada state public trust decision, Mineral County v. State

Department of Conservation, 20 P.3d 800 (Nev. 2001), is especially relevant

to the present case. That is because Mineral County involved the same

12
ongoing dispute over appropriative water rights in the Walker River/Lake

system that forms the basis of the present appeal.

In Mineral County, as in this litigation, the County sued to prevent the

named defendants from decreasing future water flows into Walker Lake.

There, however, the County had filed the action in state court. The Nevada

Supreme Court held that the “Decree Court” (i.e., the federal district court),

rather than the Nevada state courts, was the proper forum for redress of the

County’s public trust-based claims. (20 P.3d at 807.) Critically, however,

two justices in Mineral County wrote a concurring opinion in which they

presaged the Nevada Supreme Court’s later decision in Lawrence, supra.

They opined that the public trust doctrine applies to the waters of the Walker

Basin—“including the non-navigable tributaries that feed navigable bodies

of water.” 20 P.3d at 807-808 (Rose, J., concurring).2 The concurring

opinion in Mineral County concludes:

“It is then appropriate, if not our constitutional duty, to expressly

reaffirm the [state] engineer’s continuing responsibility as a public
trustee to allocate and supervise water rights to that the appropriations
do not `substantially impair the public interest in the lands and waters
remaining. The public trust is more than an affirmation of state power
to use public property for public purposes. It is an affirmation of the
duty of the state to protect the people’s common heritage of streams,
lakes, marshlands and tidelands, surrendering that right of protection

2
Justice Rose’s opinion cites in support of this principle the California
Supreme Court’s decision in National Audubon Society v. Superior Court,
658 P.2d 709 (Cal. 1983).

13
 only in rare cases when the abandonment of that right is consistent
with the purposes of the trust. Our dwindling natural resources
deserve no less.” (20 P.3d at 248-49 [footnotes omitted].)

A decade later, in Lawrence v. Clark County, supra, a unanimous

Nevada Supreme Court cited with approval, and relied heavily upon, Justice

Rose’s concurring opinion in Mineral County. See Lawrence, 254 P.3d 606,

610-611.) Observed the Lawrence court: “Justice Rose noted that every

Nevada citizen has a vested interest in the water from Walker River and

expects the state’s natural resources to be preserved. Finally, he described

this court’s final role of ensuring the continuance of this stewardship…”

(Lawrence, 254 P.3d at 611 [citation omitted].)

C. Nevada’s Adoption of the Public Trust Doctrine is Consonant

with the Public Trust Jurisprudence of Many Other States

Nevada is no outlier in having adopted the public trust doctrine as a

cornerstone of its state natural resources law. To the contrary, state

appellate courts throughout the Ninth Circuit have similarly embraced public

trust principles in their respective jurisdictions. Many of those decisions—

including those of the Nevada courts—draw on public trust principles

articulated in other states; though variation exists from state to state, the

doctrines also are interrelated.3 The district court’s attempt to expunge the

3
The one Ninth Circuit state in which the authority of public trust doctrine
case law is uncertain is Idaho. In Kootenai Environmental Alliance v.

14
doctrine from Nevada law therefore threatens to cause legal mischief and

confusion across many state lines.

1. Other Ninth Circuit States Have Embraced the Public Trust

Doctrine

The district court appeared to view Nevada’s adoption of the public

trust doctrine as something novel and strange. In fact, public trust decisions

have emerged from all of the Ninth Circuit states. For example:

Alaska: Baxley v. Alaska, 958 P.2d 422, 434 (Alaska 1998)

(“[t]he public trust doctrine provides that the State holds certain resources

(such as wildlife, minerals, and water rights) in trust for public use and that

government owes a fiduciary duty to maintain such resources for the

common good of the public as beneficiary.”); see also Alaska Const. Art.

VIII, § 3: (“Wherever occurring in their natural state, fish, wildlife, and

waters are reserved to the people for their common use.”);

Arizona: Arizona Center for Law in the Public Interest v. Hassell,

837 P.2d 158 (Az. 1991) (invalidating, under the state’s public trust doctrine,

a legislative relinquishment of sovereign title to navigable river beds);

Panhandle Yacht Club, 671 P.2d 1085, 1095 (Id. 1983), the Idaho Supreme
Court expressly affirmed the doctrine. Subsequently, the Idaho Legislature
attempted to relinquish the state’s public trust authority over water rights.
Idaho Code §§ 58-1201 to 58-1203 (1996).

15
 California (National Audubon Society v. Superior Court, 658 P.2d

709 (Cal. 1983) (confirming public trust doctrine’s applicability to

California’s water rights system); State of California v. Superior Court

(Lyon), 625 P.2d 239 (Cal. 1981) (applying public trust doctrine to

California’s inland navigable lakes and rivers) Marks v. Whitney, 491 P.2d

374 (Cal. 1971) (confirming that public trust-protected uses include

environmental preservation and public recreation);

Hawaii: In re Water Use Permit Applications, 9 P.3d 409 (Haw.

2000) (confirming public trust doctrine’s applicability to Hawaiian

groundwater and surface water rights);

Montana: Montana Coalition for Stream Access, Inc. v. Curran, 682

P.2d 163 (Mt. 1984), (holding that the public trust doctrine affords members

of the public access to streams, rivers and lakes suitable for recreational

use); Galt v. State Department of Fish, Wildlife and Parks, 731 P.2d 912,

915 (Mont. 1987) (“the public trust doctrine in Montana's Constitution

grants public ownership in the water, not in the bed and banks of streams.");

Oregon: Wilson v. Welch, 7 P. 341 (Or. 1885) (“[t]he state does own

the channel of the navigable river within its boundaries, and the shore of its

bays, harbors, and inlets between high and low water, but its ownership is a

trust for the public.”); Morse v. Oregon Div. of State Lands, 590 P.2d 709,

16
714 (Or. 1979) (“While certain of the state’s interests are alienable, its

obligation as trustee of the public interest remains . . . . Thus, all submerged

and submersible lands are subject to the paramount responsibility of the state

to preserve and protect the public interest.”); see also Oregon Water Rights

Act, Or. Rev. Stat. § 537.334 (2) (2009) (explicitly acknowledging the

public trust doctrine and prohibiting instream water rights from diminishing

public rights in waters);

Washington: Orion Corporation v. State, 747 P.2d 1062, 1072

(Wash. 1987) (explaining that the “public trust doctrine has always existed

in Washington”); see also Esplanade Properties, LLC v. City of Seattle, 307

F.3d 978 (9th Cir. 2002) (applying established Washington state public trust

principles to reject a developer’s regulatory takings claim).) 4

4
Of course, the public trust doctrine is a principle of state natural resources
law in most other states throughout the United States as well. See generally,
MICHAEL BLUMM & MARY WOOD, THE PUBLIC TRUST DOCTRINE IN
ENVIRONMENTAL AND NATURAL RESOURCES LAW (2013); Robin Kundis
Craig, Comparative Guide to the Western States' Public Trust Doctrines:
Public Values, Private Rights, and the Evolution toward an Ecological
Public Trust, 37 ECOLOGY L.Q. 53 (2010); Robin Kundis Craig, A
Comparative Guide to the Eastern Public Trust Doctrine: Classifications of
States, Property Rights, and State Summaries, 16 PENN. ST. ENVTL. L. REV.
1 (2007).

17
 2. The Nevada Supreme Court’s Public Trust Decisions Rely on
the Public Trust Precedents of other Western States.

These decisions from elsewhere in the Ninth Circuit do not just

illustrate that Nevada is no outlier in adopting the public trust doctrine.

Instead, they have also helped Nevada develop its public trust doctrine. In its

own past public trust decisions, the Nevada Supreme Court has cited with

approval, and expressly relied upon, many of these reported trust decisions

from other states.

In Lawrence v. Clark County, for example, that court cited with

approval the Idaho Supreme Court’s decision in Kootenai Environmental

Alliance, supra; California’s decision in People v. California Fish Co., 138

P. 79 (Cal. 1913); and Arizona Center for Law, supra. Lawrence, 254 P.3d

at 610, 613, 615-616. In Bunkowski, supra, the Nevada high court similarly

cited and relied upon several of the California Supreme Court’s longstanding

public trust precedents, including People v. California Fish Co., supra; and

Marks v. Whitney, 6 Cal.3d 251 (1971). Bunkowski, 503 P.2d at 1237-1238.

And in Mineral County, supra, Nevada Supreme Court Justice Rose’s

concurring opinion—urging explicit judicial recognition of Nevada public

trust principles to the waters of Walker Lake and the Walker River—relies

heavily on both the California Supreme Court’s decision in National

Audubon, supra, and the Hawaii Supreme Court’s decision in In re Water

18
Use Applications, supra. Mineral County, 20 P.3d at 808-809 & fns. 5, 10

(Rose, J., concurring).

The district court therefore mischaracterized the State of Nevada’s

public trust doctrine as “putative” and predicated on the Nevada Supreme

Court’s purported misreading of the United States Supreme Court’s public

trust decision in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387

(1892). See District Court Order at p. 11. Unjustified, also, is the lower

court’s apparent antipathy toward the California Supreme Court’s public

trust decision in National Audubon, supra, a nationally-renowned precedent

with obvious factual and legal relevance to the present litigation. Id. at pp. 9

n.7,14.

The public trust doctrine is therefore a settled principle of Nevada

state law, one that is reflected in numerous decisions of the Nevada Supreme

Court. Those decisions are consistent with, and expressly rely upon, the

public trust jurisprudence developed over many years by the highest courts

of many of Nevada’s sister states. And the public trust doctrine, as

consistently interpreted, applied and embraced by the Nevada Supreme

Court, is directly applicable to the facts presented in this case.

19
II. TAKINGS DOCTRINE WOULD NOT PREVENT NEVADA’S
PUBLIC TRUST DOCTRINE FROM EVOLVING

As discussed above, the public trust doctrine already is part of the

fabric of Nevada law, and a court applying that doctrine to the Walker River

Basin would be faithful to existing precedent. For that reason alone, the

district court’s analysis was flawed. But even if application of the public

trust doctrine would represent a legal change, the takings clause of the

United States Constitution would not preclude that change.

The reason why is straightforward: change is an inherent part of water

law, not some external imposition upon it. And while takings doctrine may

slow or adjust the pace of that change, it does not preclude it. Instead, in

state after state, and in multiple episodes spanning the United States’ entire

history, water law has evolved. Those evolutionary episodes often produced

major shifts, yet hardly ever has any compensation been paid to the property

owners whose interests were compromised by the change. Nor is that

pattern of evolution some historical coincidence or quirk. It follows,

instead, from basic principles underlying the United States’ many systems of

water law.

In the paragraphs that follow, we briefly describe a few key episodes

of change. Our sampling is incomplete; there are too many examples of this

phenomenon to fit all in a single brief. Yet even this limited sampling

20
should indicate that while the takings clause matters in water law, its role is

not to simply preserve present-day rights against regulation or change, or to

preclude the evolution of new legal principles. “Only by ignoring the

historical record,” one of our distinguished former colleagues once observed,

“could such a plea be made.” Joseph L. Sax, The Constitution, Property

Rights, and the Future of Water Law, 61 U. COLO. L. REV. 257, 267 (1990).

A. Fish and Dams

A basic tension underlying this case—the tension between industrial

uses of water and protection of aquatic ecosystems—has defined much of

water law in the late twentieth and early twenty-first centuries. But that

clash is not at all new. In the colonial and post-revolutionary eras, similar

clashes arose, and the ways in which early American courts resolved them

reveals much about the relationship between water law and the takings

clause. See generally John F. Hart, Fish, Dams, and James Madison:

Eighteenth-Century Species Protection and the Original Understanding of

the Takings Clause, 63 MD. L. REV. 287 (2004).

From the beginnings of American history, people have dammed

rivers. But on the East Coast, those dams destroyed what once were

enormous runs of anadromous fish, harming the many people who depended

on those fish for sustenance. See generally JOHN WALDMAN, RUNNING

21
SILVER: RESTORING ATLANTIC RIVERS AND THEIR GREAT FISH MIGRATIONS

(2014). The resulting clashes generated both court cases and legislation, and

sometimes those laws and court cases required dam owners to take down

their dams, or to allow more water to spill through the dam. As one legal

historian has explained,

When mill dams in eighteenth-century America prevented

migratory fish from reaching their spawning grounds,
fishermen sought and often obtained legislative relief. In a
departure from the common law, laws were enacted that
required mill dam owners to modify dams-by installing gates,
openings, or slopes-to allow fish to pass upstream. Fish-passage
requirements were applied to preexisting dams, even those built
with official approval, as well as to dams built after the laws
were enacted. Satisfying fish-passage requirements made dams
considerably less efficient and less profitable, some to the point
of impracticability. Occasionally dams were ordered to be torn
down altogether because they were found to be incompatible
with fish passage.

Hart, supra, at 288-89.

The dam owners were generally operating under claimed riparian

property rights, and any requirement to remove a dam or spill more water

would have been perceived as a direct interference with those rights. Yet

hardly ever did courts or legislatures offer compensation to the dam owners

whose dams had to give way. See, e.g. Holyoke Co. v. Lyman, 82 U.S. 500,

506, 512-13 (1872) (explaining that dam owners’ rights are subservient to

22
legislative protection of fish); State v. Beardsley, 79 N.W. 138, 139-41

(Iowa 1899) (rejecting a takings challenge, and citing similar decisions).

Indeed, one historical episode is particularly telling. In 1785, the

Virginia General Assembly passed a strict fish passage law. Act of Oct.

1785, 1785 Va. Acts. Ch. LXXXII; see Hart, supra, at 299-306. Among

other requirements, that law could prohibit owners from rebuilding dams

that were damaged in floods, yet it contained no provision compensating

those dam owners for their loss. Hart, supra, at 299-306. If such legislation

had been prohibited by takings doctrine, the legislator who introduced the

bill would probably have spotted the issue, for that legislator was James

Madison, who was simultaneously thinking through the takings clause

concepts that he would eventually write into the Virginia and federal

Constitutions. Id. Yet Madison apparently saw no takings issue with a

restraint on the use of water under an existing claim of right.

That episode, and the larger history of which it was part, belies the

district court’s contentions about constitutional history. According to the

district court, “[t]he founders,” if confronted with a public trust restriction on

existing water rights, would have “called it what we call it today: a ‘taking.’”

District Court Order at 12. But in reality, the founders were well aware of,

23
and even helped create, significant regulatory restraints on existing water

rights, and they applied no such label.

B. The Demise of Natural Flow Riparianism

Over the decades that followed the revolutionary era, as the United

States industrialized, water rights underwent another major shift. The

United States inherited its water rights systems from England, and in

England, the primary form of surface water right was a riparian right—in

other words, a use right that attached to parcels of land adjacent to a

waterway. The scope of those rights was defined by something known as

the “natural flow doctrine,” which entitled each downstream user to the

natural flow of the waterway, subject only to minor changes. See, e.g.,

Merritt v. Parker, 1 N.J.L. 460, 463 (1795).

To some Americans in the nineteenth and early twentieth centuries,

this doctrine seemed obsolete. Prosperity increasingly seemed to depend on

industry’s ability to dam, divert, and, often, pollute rivers, and a requirement

that each downstream landowner receive the natural flow of a stream struck

some users as a bucolic anachronism. See generally MORTON HORWITZ, THE

TRANSFORMATION OF AMERICAN LAW, 1780-1860 34-47 (1977). So the law

changed. In state after state, courts abandoned natural flow riparianism and,

in its place, adopted a doctrine of reasonable use riparianism, which allowed

24
more substantial alteration of waterways. See id.; Robert H. Abrams, Water

Law Transitions, 66 S.C. L. Rev. 597, 597 (2015); e.g. Martin v. Bigelow, 2

Aik. 184, 187 (Vt. 1827).

Those changes generated losers as well as winners. There were still

many downstream water users with strong interests in unimpeded,

unpolluted flow, and those downstream water users were often litigants in

the resulting cases. Yet the Takings Clause did not stop those changes from

occurring, and often the changes occurred without any compensation at all.

See Sax, supra, at 267 n.32 (“These transformations were ordinarily

accomplished without compensation to the losers whose traditional property

rights were defined away. Where some compensation was given, as in the

New England Mill Acts… it was less than the just compensation the

Constitution requires.”).

C. The Continuing Emergence of Groundwater Law

The Nineteenth Century also saw the beginnings of a transformation,

which continues to this day, in the law of groundwater. For many years,

groundwater law in United States was dominated by something known as the

“rule of capture.” Under that rule, an overlying landowner was entitled to

pump as much groundwater as he or she could, even if that pumping sucked

water out from under a neighbor’s land and left that neighbor’s wells or

25
springs dry. See, e.g., Frazier v. Brown, 12 Ohio St. 294, 311-12 (1861),

overruled by Cline v. Am. Aggregates Corp., 15 Ohio St. 3d 384, 387

(1984).

Today, the rule of capture is the exception, not the norm. Most states

have moved to one of a variety of other groundwater use doctrines, all of

which impose greater restraint on an overlying landowner’s ability to pump.

See Dave Owen, Taking Groundwater, 91 WASH. U. L. REV. 253, 268-69

(2013). Even in the few states where the rule of capture ostensibly remains

the common law rule, statutes and regulations limit a landowner’s discretion

to pump as he or she would please. See id. The changes are still uneven;

groundwater laws in many states contain exemptions that leave vestiges of

the old regime intact. Owen, supra, at 269-70. But the changes also are

ongoing, and they are likely to continue as competition for groundwater

increases.

These changes, like the changes to riparian rights, operated to the

detriment of some water users. Someone lost each of the cases—and,

probably, each of the legislative battles—in which these transitions were

announced. Yet no published decision from an American court has ever

held that a state could not change its groundwater law regime, and many

cases have rejected such arguments. See, e.g., Jacobs Ranch, L.L.C. v.

26
Smith, 148 P.3d 842, 855 (Okla. 2006) (rejecting a constitutional challenge

to expanded groundwater use regulation); Williams v. City of Wichita, 374

P.2d 578, 589 (Kan. 1962) (affirming “the basic power of the legislature to

modify and change common-law rules with respect to water usage”); SW.

Eng’g Co. v. Ernst, 291 P.2d 764, 770 (Ariz. 1955) (affirming legislative

authority to impose regulatory restrictions on groundwater use). A few

courts have ruled in favor of individual plaintiffs bringing as-applied

challenges to particular groundwater use restrictions, but these decisions also

represent the exception, not the norm. See Owen, supra, at 284-87. With

groundwater, as with surface water, the takings clause has never operated to

freeze law in place.

D. The Rise of Prior Appropriation

All of these changes in water law were significant, yet perhaps the

most storied change of all involves the emergence of prior appropriation

doctrine in the American West.

In the early nineteenth century, as settlers and miners moved west,

they began creating a different system of water rights, in which being the

first to use the water, rather than owning land along the stream, was the key

allocative criterion. That legal system eventually became the dominant

common law water regime throughout the American west, and the exclusive

27
regime between the West Coast states and the plains. See BARTON

THOMPSON, JR. ET AL., LEGAL CONTROL OF WATER RESOURCES 188-91 (5th

ed. 2013).

But the law of prior appropriation did not emerge on a blank slate.

The western states also inherited the traditions of Anglo-American common

law, and one of those traditions was a system of riparian rights. Id. at 190.

In many western states, riparian landowners asserted that their rights

trumped those of appropriators, and in the late nineteenth century, they

sometimes won. See, e.g., Lux v. Haggin, 4 P. 919 (Cal. 1886); Vansickle v.

Haines, 7 Nev. 249, 253 (1872) (recognizing “[t]he rights of Haines as a

riparian proprietor”).

Some of those victories endured, but many did not. In Nevada, and in

the rest of the interior western states, riparian rights eventually disappeared,

and prior appropriation reigned supreme. See, e.g., Reno Smelting, Milling

& Reduction Works v. Stevenson, 21 P. 317 (Nev. 1889) (“Our conclusion is

that the common–law doctrine of riparian rights is unsuited to the condition

of our state.”). Indeed, much like ancient pharaohs defacing their

predecessors’ monuments, some western courts went so far as to assert that

riparian rights had never existed within their state boundaries, and that a

system of prior appropriation had simply emanated from the west’s arid soil.

28
Id. at 321; Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882). Those

assertions cannot withstand much scrutiny; in fact, in Colorado, Nevada, and

other western states, courts and legislatures initially assumed the existence

of, but then increasingly curtailed, riparian rights as they adapted water law

to the policy preferences of the public and the exigencies of the situations at

hand. See David B. Schorr, Appropriation and Agrarianism: Distributive

Justice in the Creation of Property Rights, 32 ECOLOGY L.Q. 3 (2005)

(explaining how and why prior appropriation doctrine eventually triumphed

in Colorado). But the end result of this evolving process was clear: when the

interior western states were done, riparian rights had been “entirely

abrogated.” Schorr, supra, at 4.

That abrogation accomplished a massive shift of wealth, for even in

the nineteenth century, water rights in the western states were precious. But

no takings compensation was paid, and in most western states, arguments

that the takings clause precluded such a massive shift met only with

unsympathetic judicial ears. That was not true of all western states; most

prominently, in Lux v. Haggin, the California Supreme Court held that the

abolition of riparian rights would constitute a taking, and therefore was

forbidden. 4 P. at 923. Lux v. Haggin thus demonstrates that takings

principles can operate as brakes against radical changes in water law, if a

29
state chooses to develop its property law in that way. But even in California,

Lux v. Haggin has not precluded the evolution of water rights; subsequent

cases, statutes, and constitutional amendments have narrowed the scope of

riparian rights. See, e.g., In re Waters of Long Valley Creek Stream System,

599 P.2d 656 (Cal. 1979) (holding that appropriative rights could trump

unexercised riparian rights). And across the west—including Nevada—Lux

v. Haggin’s holding was an exception, not the norm. The case provides no

basis for a categorical rule holding that the takings clause prevents water law

from evolving.

And therein lies the greatest irony of the district court’s position. The

district court rested its takings argument on the apparent belief that water

rights, once created, can be changed only if compensation is paid. If that

really were the traditional American rule, the very appropriative water rights

that the district court sought to immunize from change would never have

come into preeminence, and instead would have remained subordinate to

riparian rights. As Joseph Sax once put it,

Anyone holding appropriative rights who thinks that there is

something fundamentally unconstitutional about a dynamic
element in the rules of property should take a careful look at the
pedigree of water doctrine in the ‘pure’ appropriation state of
Colorado[,] which became pure only by judicial revisionism in
reading the Territorial legislature's riparian statutes.

Sax, supra, at 268.

30
 * * * * *

This sampling is partial. A lengthier chronicle of water rights changes

would include the emergence of permit systems and administrative water

regulation, first in the American West and then, more recently in the East;

the ongoing transitions from reasonable use to regulated riparianism in many

eastern states, and, of course, the reemergence of statutory environmental

law as a central element of water law throughout the nation. See generally

Thompson, Jr. et al., supra. But even a partial sampling should illustrate the

basic point that water law changes. That does not mean the takings clause is

inapposite in the water rights field; a change that qualifies as a taking under

the United States Supreme Court’s precedents should be compensated. But

the kind of categorical rule intimated by the district court, under which any

change that adversely affects established water right holders is a forbidden

taking, is not American water law.

E. Legal Principles Supporting Water Law’s Evolutionary History

This theme of evolution in American water law is not some historical

accident. Instead, it reflects basic legal principles.

Some of those principles are not unique to water law, for change has

been part of the United States’ systems of property law as long as those

systems have existed. Over its history, courts, legislators, and executives

31
have abolished a wide variety of land estates, abandoned property doctrines

like the fee tail and ancient lights, emancipated slaves, curtailed the property

interests that married men once held over their wives and children, and

created new property rights in things as diverse as wavelengths and fame.

See generally STUART BANNER, AMERICAN PROPERTY: A HISTORY OF HOW,

WHY, AND WHAT WE OWN (2011). As Banner remarks, “[i]f an American

lawyer in 1760 had been asked for a catalog of all the kinds of property he

knew, many of the entries on that list would have ceased to exist a century

later.” Id. at 12. That observation underscores a larger point. Property in

the United States has evolved as a pragmatic social institution, designed to

facilitate a just and prosperous society. And when Americans have

concluded that property law fails to fulfill those ends, the takings clause has

not served as a categorical bar to change. After all, “[g]overnment hardly

could go on if to some extent values incident to property could not be

diminished without paying for every such change in the general law.” Penn.

Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

Beyond principles that apply across the field of property law, there are

reasons why water law has been particularly subject to evolution. In nearly

every state, including Nevada, one bedrock principle of water law holds that

while property owners may obtain use rights, the public retains an ownership

32
interest in the physical water itself. See, e.g., Nevada Revised Statute §

533.025 (“[T]he water of all sources of water supply within the boundaries

of the State whether above or beneath the surface of the ground, belongs to

the public.”); Application of Filippini, 202 P.2d 535, 537 (Nev. 1949); Eddy

v. Simpson, 3 Cal. 249, 252 (1853) (“The right of property in water . . .

consists not so much of the fluid itself as the advantage of its use.”). That

system of dual ownership reflects a broader principle that waterways, even

though subject to private exploitation, always retain some of their character

as public resources. See, e.g., State v. Bunkowski, supra, 503 P.2d 1231,

1233 (Nev. 1972); State Engineer v. Cowles, Bros., Inc., 478 P.2d 159, 160

(Nev. 1970). As one leading casebook puts it, “the most distinctive legal

feature of water is its status as a public resource that cannot be privatized in

the ordinary way.” Thompson et al., supra, at 588.

That principle emerges from case after case, including, notably, cases

in which the United State Supreme Court has waded into the field of water

rights. For example:

Few public interests are more obvious, indisputable and

independent of particular theory than the interest of the public
of a State to maintain the rivers that are wholly within it
substantially undiminished, except by such drafts upon them as
the guardian of the public welfare may permit for the purpose
of turning them to a more perfect use. This public interest is
omnipresent wherever there is a state, and grows more pressing
as population grows. It is fundamental, and we are of opinion

33
 that the private property of riparian proprietors cannot be
supposed to have deeper roots . . . . The private right to
appropriate is subject not only to the rights of lower owners but
to the initial limitation that it may not substantially diminish
one of the great foundations of public welfare and health.

Hudson County Water Co. v. McCarter, 209 U.S. 349, 356 (1908).

That general principle also expresses itself in a wide variety of water

law doctrines, the public trust among them. Across the nation, many

consumptive water use rights are qualified by requirements for reasonable

and beneficial use, servitudes for public navigation, and regulations

grounded in general governmental police powers. See generally Thompson

et al., supra. So common are these requirements that susceptibility to

government regulation, and to change, may well be water law’s most

pervasive background principle. See Lucas v. South Carolina Coastal

Comm’n, 505 U.S. 1003, 1028-29 (1992) (holding that takings claims cannot

succeed where regulation tracks background principles of state law). Or, as

the Supreme Court once succinctly put it, “[r]ights, property or otherwise,

which are absolute against the world are certainly rare, and water rights are

not among them.” United States v. Willow River Power Co., 324 U.S. 499,

510 (1945).

34
 The district court may have preferred a different sort of water law,

which fixes present ownership patterns and places them beyond the reach of

governmental authority. But that is not the American legal tradition.

III. CERTIFICATION TO THE NEVADA SUPREME COURT

Amici submit that, for the reasons explained supra, the scope and

applicability to the present case of Nevada’s public trust doctrine is well-

settled and requires reversal of the district court decision below. We

therefore believe that this Court is fully equipped to apply those relevant

state law principles in the present appeal. If this Court disagrees, however,

and believes that the legal parameters of the doctrine under Nevada law are

unclear, amici respectfully suggest that the Court certify the public trust

issue to the Nevada Supreme Court for explication and resolution. See

Mineral County v. State Department of Conservation, 20 P.3d 800, 807 n.35

(Nev. 2001) (inviting certification of this dispute, should the need arise).

35
 CONCLUSION

For the foregoing reasons, these amici urge the Court to reverse the

district court decision below or certify the public trust issue arising under

Nevada state law to the Nevada Supreme Court.

Dated: April 20, 2016 Respectfully submitted,

s/David R. Owen
David R. Owen
Richard M. Frank
Attorneys for Amici Law Professors

36
 CERTIFICATE OF COMPLIANCE PURSUANT TO
FED. R. APP. 32(a)(7)(C) AND CIRCUIT RULE 32-1

Pursuant to Fed. R. App. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I

certify that the attached brief is proportionately spaced using Times New

Roman 14-point typeface and contains 6,368 words.

DATED this 20th day of April, 2016.

s/David R. Owen
David R. Owen (SBN 222314)
U.C. Hastings College of the Law
200 McAllister Street
San Francisco, CA 94102
(415) 581-8987

37