lake question that was addressed in the last oral argument is also political to this case unless you have questions to follow up on it my intention is to focus on the other issues in the public trust case and the  appeal from judge jones order dismissing that claim i will start by addressing the question of standing and then move on to more of the substantive questions relating to the doctrine itself and its application let me first start by saying that as you know our position is that judge jones erroneous lee ruled that the county does not have standing to prosecute its public trust claim because he did not acknowledge that the county filed its claim and patry capacity it is true that the county in its original pleadings and comes after that address the fact that its interests overlap with the interests of residents of mineral county and the broader public but that does not change the fact that county was suing in protection or defense of its own interests in the economic as that attack demographic wellbeing of the county as such and not just individuals experience of the league or ability to injury in fact but i think it's clear from both the allegations in the pleadings and in the affidavits that were submitted back in the ninety's by both county officials and other people who had first hand knowledge of what had happened to the county on a number of different levels that there can't be a serious dispute that there are at least alleged but probably indisputable types of injury that mineral county as a county has suffered as well as its residents as a result of walker lakes devastation over the years as it has been deprived of adequate inflows to maintain even a minimal level of health as a leak in a fishery and a migratory bird stop over sanctuary in addition there is the question of whether or not  us that had the court bothered to get to that stage of the analysis it would have seen that one there are many different sources of authority and obligation on on the part of the county to protect its interests and those of its residents as they relate to water resources as they relate to natural resources and other aspects of the general welfare which are directly consonant with those injuries and interests that are at the core of this public trust case for mineral county so it doesn't seem briefs but let me just point out that a county bringing a claim to an authority whether it be a different governmental entity at a higher level of government were court of competent jurisdiction to try and seek enforcement or recognition and enforcement of a duty like the public trust duty is not the same as the county exercising of the legislative or executive authority to itself regulate or itself presume to enforce that broader duty or obligation so it is not really properly embraced recovered by dillon's rule at all and as we pointed out that will has any now been modified into that as in any other states to replace the old presumption with the presumption that a county would have an implicit power to follow through on various other obligations or duties it has in the absence of clear express intent to prevented from doing so and there is no such clear express prohibition or prescription of any sort in nevada law and then of course the nevada supreme court in two cases that dealt directly with county interests in an interference you could say with water rights allocation decisions by the state or the state engineer the bedrock railing valley ranch case and the circuit case both of which involve washoe county e we did not expect a ruling on standing there was no briefing on it at the time and it was puja have been accepted in the past with regard to public trust doctrine our position is that it is not a question that is seriously in dispute under nevada law the public trust doctrine is a part of nevada's law on a part of nevada's water law it seems clear that if you look back at even the older one thousand century cases and then as we've cited some cases through different parts of the twentieth century that there was never any doubt that like other western states or most western states nevada recognized that the ownership of the water lies in the public and that there is a use for up to rewrite to water use that that exists prior to the water code and now under the existing statutory system for beneficial use for appropriate of rights as in most of the west and certainly our position is that between justice rosa's concurrence in the mineral county case in two thousand and one and the unanimous on bank decision the justice  authored in the lawrence because of county case in two thousand and eleven that any debate about whether or not the public trust doctrine exists and applies as a part an inherent part of nevada's water law has been laid to rest and therefore this court could go ahead and rule on that and in fact i think that our position is judge jones clearly got it wrong and it seemed as though he worked hard to find a narrow way of trying to construe this case law such as to say two fundamental things one is that the public trust doctrine if it existed could only apply prospectively and could not have any role in regulating or limiting existing water ri of the two sovereign states in which the walker river basin lies nevada in for the majority of the system in especially for walker lake but also for california and that it would apply to the states as well were this not an interstate stre the exclusive jurisdiction of the decree court so our claim is that the public trust obligation requires that the system be managed and appropriate of water rights in the system be limited or managed again or administered in such a way is to ensure that at least minimal levels of inflow over time this does not necessarily mean one hard number every year since systems fluctuate greatly but that over time adequate water would continue to make it into walker lake to maintain it at a base level of ecological and recreational and economical as a result health is this something to be managed by the nevada legislature some to be managed by the courts well this is a trust obligation that into walker like yes judge bybee i believe that is one of the areas where we use well that would be a matter of fact finding for the court that there is essentially uniform agreement about the a range of water flows into the lake and water quality and water level of the lake the correspond to a moderate acceptable level of the lawn cut through a trout fishery and therefore its utility as well for migratory bird and other purposes that amount is there now it would not be difficult for a court such as the district court to get to the point of taking evidence on what the state of the lake is now what it has been historically and what that level is that corresponds to what both the nevada department of wildlife and the united states  service and other entities have determined is essentially a good benchmark your lover sure does your understanding of the public trust doctrine require that the data maintain the lake at some historic level and what we take we take we take eight hundred sixty four just by the i think that is a very sound question and there is of course a decision that needs to be made in two weeks is that will need to be made we've taken the position that the lake does not need to be returned to you and it's not reasonable to try and return it to a pre development stage meaning before any water appropriations and diversions occurred in the eight hundred sixty s that is a very very high level of the lake however returning the lake to a level at which it seemed to have the traditional functions for which it was  namely as having a thriving fishery and also being a major and important migratory bird stuff over and as a result supporting things like the traditional loon festival fishing derbies and a variety of recreational and economic activity dependent on the lake but how the hell do we how do we decide as a court you're asking us to decide what the public trust doctrine would mean and then send it back and have a district court apply that but how would we choose the level i do we  it's your you're the state your response to my question was very it was perfectly reasonable but it was an extraordinarily abstract and if we send this back to a district district judge and just kind of decide to decided on our own as opposed to let's say referring it to nevada supreme court for decision then which seems to me that we that either we have to make up some benchmarks or the district has to make up some benchmarks and i don't know what the standards are for deciding what those benchmarks are i get the i get the public trust doctrine  but that's a that's a very very a more standard and it seems to me that maybe the legislature might have something to say about that and if if not i don't know where we start supreme court would judge fisher i think it certainly would be appropriate and it is one alternative for this court to certify the question to the nevada supreme court it seems to be what was proposed when the statement dana's case was presented at the beginning of the millennium and what the court seemed in its opinion in two thousand and one to anticipate it's not necessary in our view because we feel that the doctrine is clear in the law however it would be appropriate and it's just this bybee his judgment may be as as pointed out there how it interacts who previously adjudicated rights that are so forth in the creed well in our view the law pretty clearly answers that question judge fisher and in the about how improperly taking a novel doctrine or concept and applying it retroactively and as we've explained we think that's fundamentally wrong the public trust doctrine is quite old and quite ingrained in the law and it's our view that it was  it's never at least overtly been taken into account say for instance that in any decision the state engineer ever made right that's right it's been systematically failed to the state engineers office systematically fail to acknowledge s maybe i am maybe i am well it wasn't raised i'm working in a holistic approach yeah yeah yeah i believe that that's appropriate your honour's my time is below what i wanted to reserve for all your time for it to answer the question but i would say that that issue was not raised in relation to the change application that the national fish and wildlife foundation apply or in the stored water lease program but i think it does in some ways relate to the practical pragmatic question you raise judge that the fact that the walker river but restoration program was enacted in funded largely to address the same fundamental problem with walker lake and to try and provide one part at least of a solution or an answer to what the lake requires two to comply with the trump public trust of the geisha in just in general to make the lake sound in some level reasonable level that it is a part of that process no one challenged on those grounds so i would argue that it was binding upon the state engineer but i couldn't offer you all an opinion about whether there was a deficiency on that particular decision in relation to those applications i think probably not but that's a bit of a hypothetical ok thank you mr mr herskovitz before you sit down i meant judiciary but i think as our briefs reflect we feel like there has been a certain amount of cavalier disregard both for the facts and the record in the case and for the idea of the principle that there should be a serious  impartial approach to this very important question so we would be in favor of it and i do i am sorry to say that as a former clerk for district judge fact thank you very  much gordon polian we have to walk your patient district i have ten minutes to address standing mr walston is six minutes to address finality of court crease in takings issues and mr stockton has four minutes to address the public trust doctrine  i want to address redress ability and the reason i want to address it relates to whose decision this is because i think it's an important decision for the nevada legislature rather than all of courts in all counties argument assumes that the only thing left to do here after the large case which says we're adopting a public trust doctrine is for the district court to simply reallocate these vested water rights or as they say in reply impose a drought on the entire walker river system but that's not what any public trust case in anywhere in the united states has held even a lot of them the court said we do not require any simply said we are adopting the public trust doctrine the trust resource at issue here is the private use of water as provided for in the nevada's comprehensive water legislation there is nothing in that law which requires vested water rights to be reallocated from time to time to meet trust resources other trusts resources as they may evolve as a matter of law specifically provides that court the crees can only be modified for limited purposes and then only within three years of when he has not accepted we should ask that we should put to the nevada supreme court they've adopted they've adopted the  authority as i'm sure the public trust doctrine as a as a matter of principle but have not offered any explanation for what the contours might be in the bout and whether that is contours might be as aggressive as california is or might be more aggressive in california i think the nevada supreme court has indicated how it would judge whether or not he knew that a water law violates the post public trust doctrine for not including a provision allowing for the real facial and there is the third one that i'm not finding right off the top of my head here but and whether dispensation satisfies the state's special obligation to maintain the pacific second by thirty five and permit like pipe tribe the washer county nine hundred pacific second six ninety seven and let me just tell you the things that i think the nevada legislature would take into account when deciding whether vested this particular set of facts but the court's going to want to know that what are the impacts of this kind of legislation on the people who hold these water rights what's the impacts on the economies where those water rights are used what are the impacts on other trusts resources within that area like here the mason valley wildlife area are there any other programs that are meeting this public trust resource need that don't require us to reallocate vested water rights like the walker basin restoration program is this resource actually owned by the state as we know from the tribes brief that may not be the case tribes have misread that may not be the case here how does this doctrine play out on an interstate stream system where we've got water rights in two states and we've got federal water rights under the implied reserved water right doctrine those are just some of the things that i think an ev legislature would look at and would have broad discretion in which to make a decision and would not necessarily say in every case we're going to require reallocation of vested water rights or impose a drought on the system we're not going to tell someone who has discretion here to do that quickly i want to just address the issue of whether or preference to nevada supreme court potentially and and and what i would say with respect to that is is we clearly do not have any authority in that even after lawrence that says th public trust doctrine requires that reallocation a vested water rights to meet resource needs that is a question of enormous import to the state of nevada and not only in this case it affects is played in the in the case which is mineral kind of pleaded in the amended complaint i mean there would be numerous water rights that would simply no longer be able to be exercised and in some in some years they couldn't be exercised at all but according to a lawrence right the supreme court crossed the doctrine way back to the start of the state to the constitution so that existed you know ever since then at least so isn't that something any use of rectory right would be subject to i think it would depend on the reasonable us of how the regulation is applied  honor i understand that the idea that it's been here forever and everybody should have known about it but as a practical matter that's that's not necessarily how it's viewed but  i understand it but it would still i think come down to a federal question of is it does this essentially take the entire economic benefit from the from the from the water right in terms of reference to to the court to or the getting a decision from an about a supreme court at some point and the facts need to be developed somewhere somehow all we have here the so called facts in our briefs or are not from a trial court record they're from reports how would we even know what facts to develop we don't know what the standard is well and i think i think that i think that the court before it adopts a standard or before it tells the legislature to adopt a standard it needs to have some facts i think it has to have the same kind of facts could assume we can assume the facts that are that are played in the in the complaint right but i don't think that's an appropriate question for for the about a supreme court to decide if if there have been no no facts developed what's right but we do this all the time it happens all the time in federal court we assume the facts as plaid in the complaint and then ask whether state's a cause of action i thought that's a straight twelve b sex yeah i understand that but i'm not sure of that  and then and then you and then once you decide whether or not there's a cause of action exists we get the plaintiff then gets an opportunity to show that those facts in fact are true but i don't think that's the issue i think the issue is not whether there's a cause of action the issue is what should the not taken the pacific position on that i agree with the concept that if the cases reassigned it they all need to go to the same judge that the one thing that i would say i had i ha afternoon i are good morning your honor thought my name is roderick waltz and i represent land county and also certain water users in california and nevada in these cases just very briefly to the reference question that was just posed by judge bybee we have no particular objection to a reference back to the nevada supreme court to determine what law applies assuming the correctness of the facts is p of counties complaint but we don't think that reference is particularly necessary because in our view the issues in this case are very straightforward and could be resolved by this court without reference very simply literal kennedy is reallocated decreed water rights you took that taking those rights away and reduce the flow of water necessary to satisfy those rights at least without paying compensation and so our view would be the legislature may have that power knew that a legislature may have that power but it would have to pay compensation to the holders of the water rights if it did so but that's not the issue in this case because mineral county does not take the r is not making the argument that the legislature has the power to reallocate these adjudicated water rights rather mineral counties argument is that the courts have this power not the legislature the courts have this power to step in and apply what judge might be referred to as the amorphous principles m the supreme court in illinois central which is a civil public trust case in this nation apply the public trust darkon to uphold the right of the illinois legislature to reallocate the field is feed grant of lands underlying lake michigan but in one case the supreme court was opposing a part of the legislature here mineral county use or unit of the courts have this power to step in and do what the legislature has not going to take it isn't that in fact and and i think you you know more about this way more than i do but in that in fact the public  to consider to consider public trust uses but it specifically held that it's up to the this the legislature and the states to ministry body to determine whether to protect public trust uses or not and it said specifically that if the legislature or the state water resources control board decide that consumptive uses of water are better served than the preservation of public trust uses then the legislature in the state of ministry  brian stockton representing nevada department of wildlife and i think most of my public trust arguments have already been made but our position is clearly that this judge jones was correct that this is a political question that the legislature needs to determine the legislature established a what i consider a pretty sophisticated and complicated water law system of allocating water rights in in nevada and in that the certain is that the state engineer never takes into account the public trust but that's not true because under every decision by statute that state engineer makes he has to consider whether the new appropriation or the changes in the public interest and the public trust is just one subset of that now the legislature has determined that the balance should be in favor of appropriation for rights and they wanted to make the desert bloom so that people could live in nevada and build the economy of nevada and and there's just no doubt walker lake has suffered but it's our position that this is a political question as is bolstered by the previous case you heard where the congress has allocated a large sum of money to be able to purchase water rights from agriculture interests and transfer them to the lake and so that's  strong statement of legislative intent that that's the proper way to do it not just reallocating the water and providing the super water right to walker lake and nevada has has maintained it s public trust over the water through you know various mechanisms we don't allow waste you can only use water for beneficial purposes when the need for the water is not there you can't use the water in those kinds of factors protect the public interest in the water and so it's our position that referral to the nevada supreme court would not be appropriate because this is a legislative question to rebalance those factors if they decide that the public trust factors in walker lake are more important than   and we talked about the in stream values the wildlife habitat ups upstream in the mason valley wildlife management area those are also public trust values that need to be balanced it's not just the walker lake that has a public trust interest so just real quickly i'd like to just talk about a couple things from the national our one from the national audubon society where they they talked about in that case that the courts or the water court in that case was going to have to balance the values that were found in mana lake in you know in breeding the birds on the island versus the substantial and real need of the lot people in los angeles for that water just to live and so that's the kind of balancing that needs to be done and finally in the in the lawrence time we we did oppose replacing judge jones just on the basis they very passionate about this case the day i was assigned to this case he was on a tour in a van with the federal water master and miss peterson they drove from the walker lake all the way up to twin lakes in bridgeport he viewed the system he's very passionate about it he's very involved in it and he's right and i know some part you see that passion is as overzealous but  me please the court i will try to quickly respond to a few of the points of been made by opposing counsel there are also some points that we did not get to i doubt we have time to get them all so please if you have questions that you would like me to focus on f free to read with them but i will just say that i think the that it's a red herring for the court to be encouraged to view this as a purely political question that is  routinely interpret and pass judgment on whether or not a fiduciary obligation exists and is in force of all there may be questions as to implementation or how to fulfill the obligation or trust duty that the state in hawaii in and it's progeny courts will look at the existing sites and ruled that they must be reduced to a constrained recognition of the public trust doctrine as a limitation on the right that was granted in the past so it's simply not true that this is either beyond the competency of a court or that it is not done at least in california and hawaii and it does appear from both justice rosa's concurrence but then in the in the opinion lawrence that theory is correct on the public trust doctrine doesn't that mean that although congress went about acquiring rights in the in the prior case from senior appropriators by buying them  out that it that that wasn't necessary i mean maybe it's necessary for congress but it would have been necessary for nevada couldn't about to just simply have gone to the senior appropriators said we need your water and you took you took the rights you have the rights for a long time but you took it subject to the public trust doctrine and now we need your water to go straight to the pyramid like when i've been a more efficient way to accomplish that you're on a leave united states a lot of money let me answer that question in two parts one is yes at least hypothetically the doctrine is fairly straightforward and it would be arguably possible for the nevada supreme court or the district court if it felt the law was clear to simply enforce that trust obligation it would not eliminate any water right per se it would be a constraint analogous to existing natural constraints or minimal requirements for the system however it has never been mineral county's position that that needs to be the result of the remedy here i think there are room there is room for a variety of remedies and one of them may be establishing a standard were establishing that the criteria that must be taken into account and allowing for whether it's the state legislature or congress or a combination for them to address how most equitably and practicably to solve the problem that whatever the public trust doctrine a court either in nevada court or a federal district court could have to could have declared the need for the water from the senior  appropriators from which the foundation purchased the rights and said we're not going to pay you and we just we just need the water and we're going to ship it down to the walker like well i don't want to get into one question of the potential breach of contract or purchase would be hypothetically a court could have decided that the public trust obligation required that minimal flows or whatever level of flows be provided to walker lake and that that system be administered in such a way such that those f and that amount of water on average or over time be made unavailable i guess you could say that the right of people to divert water be adjusted so as to ensure that those flows mean as to the water the foundation purchase implemented fully it's not clear that the amount of money that was allocated will completely meet the needs of the lake and i say complete i don't mean back to pre development i mean a level that scientists in a variety of different governmental entities have weighed in on is saying that is a reasonable benchmark of where the late could and should end up so congress has clearly addressed this to some degree but it has not resolved the question of whether or not there's a legal obligation to solve a problem with the lake and to meet some kind of standard of restoration or maintenance of that leaks functionality and that would then i think the court ultimately the decree court would take the standard as it's either articulated by this court or the nevada state supreme court or through the creek would have itself gone through the entire process of examining the evidence and considering the law could have established the standards then you could take a look at what the goal for the lake ought to be persistent if a party were to us order reductions it doesn't have to compensate the water owners well that is a hypothetical that we think it's premature to address because clearly there are limits on use of frock to re water rights and both nevada and california and sister states courts have long held that some level of reasonable regulation or restraint by the state would always be a possibility and would not necessarily require compensation on the other hand we've never disputed that there are some property right in the use of water and if a remedy required that on a practical level flows in the river to the lake resulted in some kind of significant loss economic loss to water rights users we have not taken a position that that would not be compensable that would be a part of the remedy that could be ordered and that much as opposed to the entire question would be a remedy where the sovereign governments whether we're calling it nevada alone or nevada and california where the united states court involved somehow i'm not sure that that's really true but it sits in that position would then decide does the remedy require some sort of directive to state legislatures or to the executive branches of the sovereign governments and then they would have to resolve the question of what's required and whether or not to compensate but if the court found that  that there was a compensable taking we have not said that that is not a possibility i just think it's really far too premature in this particular case to determine whether or not enforcement or recognition of the public trust doctrine would