IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 64773 

FILED 

JUL 1 4 2016 

TRACE K. LINDEMAN 

iCyLERO. F SUPREME COURT 

DEPUTY CLERK 

No. 66303 

No. 66932 

J.W. BENTLEY AND MARYANN 

BENTLEY TRUSTEES OF THE 

BENTLEY FAMILY 1995 TRUST; JOY 

SMITH; DANIEL BARDEN; AND 

ELAINE BARDEN, 

Appellants, 

vs. 

STATE OF NEVADA, OFFICE OF THE 

STATE ENGINEER; DONALD S 

FORRESTER AND KRISTINA M. 

FORRESTER; HALL RANCHES, LLC; 

THOMAS J. SCYPHERS AND 

KATHLEEN M. SCYPHERS; FRANK 

SCHARO; SHERIDAN CREEK 

EQUESTRIAN CENTER, LLC; AND 

RONALD R. MITCHELL AND GINGER 

G. MITCHELL, 

Respondents. 

J.W. BENTLEY; MARYANN BENTLEY, 

TRUSTEES OF THE BENTLEY 

FAMILY 1995 TRUST; JOY SMITH; 

DANIEL D. BARDEN; AND ELAINE 

BARDEN, 

Appellants, 

vs. 

HALL RANCHES, LLC; THOMAS J. 

SCYPHERS; KATHLEEN M. 

SCYPHERS; FRANK SCHARO; 

SHERIDAN CREEK EQUESTRIAN 

CENTER, LLC, A NEVADA LIMITED 

LIABILITY COMPANY; DONALD S. 

FORRESTER; KRISTINA M. 

FORRESTER; RONALD R. MITCHELL; 

AND GINGER G. MITCHELL, 

Respondents. 

J.W. BENTLEY; AND MARYANN 

BENTLEY, TRUSTEES OF THE 

BENTLEY FAMILY 1995 TRUST, 

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Appellants, 

vs. 

THE STATE OF NEVADA STATE 

ENGINEER; HALL RANCHES, LLC; 

THOMAS J. SCYPHERS; KATHLEEN 

M. SCYPHERS; FRANK SCHARO; 

SHERIDAN CREEK EQUESTRIAN 

CENTER, LLC; DONALD S. 

FORRESTER; KRISTINA M. 

FORRESTER; RONALD R. MITCHELL; 

AND GINGER G. MITCHELL, 

Respondents. 

ORDER OF AFFIRMANCE 

These are consolidated appeals from district court orders 

denying petitions for judicial review of the State Engineer's water use 

rotation schedules (Docket No. 64773) and awarding costs (Docket No. 

66303) and from a district court decree affirming, as modified, the State 

Engineer's order of determination (Docket No. 66932) in a water rights 

matter. Ninth Judicial District Court, Douglas County; Nathan Tod 

Young and David R. Gamble, Judges. 

Appellants J.W. Bentley and Maryann Bentley, trustees of the 

Bentley family trust (collectively, the Bentleys); Joy Smith; Daniel and 

Elaine Barden; and respondents Donald S. and Kristina M. Forrester; Hall 

Ranches, LLC; Thomas J. and Kathleen Scyphers; Frank Scharo; Sheridan 

Creek Equestrian Center, LLC; and Ronald R. and Ginger G. Mitchell 

(collectively, Intervenors) are water rights holders of equal priority of the 

waters of North Sheridan Creek in Carson Valley. The North Sheridan 

Creek is the northern branch of the Sheridan Creek. In 1987, a petition 

was filed with the State Engineer requesting a determination of the 

relative rights of the claimants to the waters of several stream systems 

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flowing into the Carson Valley, including the North Sheridan Creek. In 

2008, the State Engineer issued a Final Order of Determination (FOD) 

regarding these stream systems and filed it with the district court. The 

district court divided the proceeding into six groups based on the common 

water source in each set of exceptions filed by water users protesting the 

FOD, with the waters of North Sheridan Creek adjudicated under subpart 

D of the overall decree. In the FOD, the State Engineer indicated that in 

times of low flow from the North Sheridan Creek the water users would 

have to share the shortage through the imposition of a rotation schedule. 

As provided under NRS 533.170, the Bentleys filed a notice of 

exceptions to the FOD with the district court, asserting that they had the 

right to continuously divert water to their ponds under a 1987 diversion 

agreement and, thus, could not be subjected to a rotation schedule, 

whereby the use of the full flow of the North Sheridan Creek was rotated 

among the water rights holders. The district court found that Intervenors 

had an interest in the proceedings, were aligned with the State Engineer, 

and supported the FOD against the Bentleys' exceptions. Therefore, the 

district court permitted the Intervenors to intervene in the case and to 

challenge the Bentleys' right to enforce the diversion agreement, as 

opposed to filing exceptions to the FOD itself. The Intervenors alleged 

that the Bentleys' ponds consumed excessive amounts of water, which 

resulted in reduced downstream flows to their properties, and that the 

diversion agreement was invalid. 

In 2010, the district court imposed an interim rotation 

schedule on the water users, although the record does not reflect the 

details of this rotation schedule. After a trial on the Bentleys' notice of 

exceptions, the district court issued its Findings of Fact, Conclusions of 

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Law, Order and Judgment as to subpart D, which affirmed, as modified, 

the FOD. As relevant here, the FOD was modified to (1) declare the 

diversion agreement to be unenforceable, invalid, and ineffective, (2) 

require the State Engineer to impose a rotation schedule upon the North 

Sheridan Creek water rights holders when the flow of the creek falls below 

2.0 cubic feet per second (cfs), and (3) award Intervenors their costs and 

reasonable attorney fees. The district court based its decision on a finding 

that whenever the North Sheridan Creek flow is below 2.0 cfs, constant 

flow to the Bentleys' ponds injured other water users and a rotation 

schedule was necessary to avoid that injury. 

Consistent with the district court's judgment, in 2012, the 

State Engineer notified the North Sheridan Creek water rights holders 

that the measured flow had dropped below 2.0 cfs and that a rotation 

schedule was in effect. A rotation schedule was also in effect during the 

2013 irrigation season. The Bentleys, Smith, and the Bardens separately 

petitioned the district court for judicial review of the 2012 rotation 

schedule. In 2013, they jointly petitioned the district court for judicial 

review of the 2013 rotation schedule. The 2012 and 2013 petitions were 

consolidated, and on November 27, 2013, the petitions were denied by the 

district court, which summarily stated that it did not find the rotation 

order to be illegal and that it was not the court's function to readdress the 

prior judgment entered as to subpart D. The Bentleys, Smith, and the 

Bardens have appealed the district court's decision in Docket No. 64773. 

The district court subsequently awarded costs to Intervenors, and the 

Bentleys, Smith, and the Bardens have appealed that decision in Docket 

No. 66303. 

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In 2014, the district court issued a final decree regarding the 

relative water rights of the Carson Valley stream systems, which included 

its 2012 decision regarding North Sheridan Creek, adjudicated under 

subpart D. The Bentleys have appealed the decree in Docket No. 66932, 

and that appeal has been consolidated with the appeals in Docket Nos. 

64773 and 66303. 

On appeal, the Bentleys, Smith, and the Bardens raise the 

following issues: (1) whether the district court had jurisdiction to impose a 

rotation schedule; (2) whether the State Engineer had the authority to 

impose a nonconsensual rotation schedule, acted arbitrarily and 

capriciously in imposing a rotation schedule, and did not have substantial 

evidence to support its decision to impose a rotation schedule; (3) whether 

the 1987 diversion agreement is invalid and/or was breached by the 

Bentleys; and (4) whether the district court abused its discretion in 

awarding attorney fees and costs to Intervenors. 

The proceedings were statutory in nature 

There are two types of water law adjudications: statutory and 

equitable. James H. Davenport, Nevada Water Law 98 (Colo. River 

Comm'n of Nev. 2003). Before enactment of this State's water law, which 

created the statutory adjudication process, the settlement of disputes 

between competing water claimants upon the same stream or stream 

system was conducted by the courts pursuant to their equitable 

jurisdiction. See Bliss v. Grayson, 24 Nev. 422, 455, 56 P. 231, 241 (1899) 

("[T]he foundation of the right to invoke the equity powers of the court, in 

restraint of nuisances to water, before the enactment of our statute, was 

based almost solely upon the infringement of riparian rights."). Equitable 

jurisdiction is typically invoked by the filing of a quiet title action. See 

Margrave v. Dermody Props., Inc., 110 Nev. 824, 827, 878 P.2d 291, 293 

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(1994) (stating that a water rights holder invoked equity jurisdiction by a 

quiet title action); see also Dermody v. City of Reno, 113 Nev. 207, 209-10, 

931 P.2d 1354, 1356 (1997) (stating the same). 

Statutory adjudications occur when the State Engineer files 

with the district court an FOD as to a water system. Davenport, supra, at 

104. The purpose of a statutory adjudication is to have water rights 

"adjudicated in such a proceeding as to terminate for all time litigation 

between all such water users." Ruddell v. Sixth Judicial Dist. Court, 54 

Nev. 363, 367, 17 P.2d 693, 695 (1933). In the current case, the State 

Engineer entered an FOD and the Bentleys filed exceptions thereto 

determining the water rights of the North Sheridan Creek users and filed 

the FOD with the district court pursuant to NRS 533.090 and NRS 

533.165. Accordingly, this is a statutory adjudication, not an equitable 

adjudication. 

The district court had jurisdiction to consider the issue of whether a 

rotation schedule should be imposed 

NRS 533.170(2) states that "Mlle order of determination by 

the State Engineer and the statements or claims of claimants and 

exceptions made to the order of determination shall constitute the 

pleadings, and there shall be no other pleadings in the cause." "It 

is . . . settled in this state that the water law and all proceedings 

thereunder are special in character and the provisions of such law not only 

lay down the method of procedure, but strictly limit it to that provided." 

G. & M. Props. v. Second Judicial Dist. Court, 95 Nev. 301, 305, 594 P.2d 

714, 716 (1979) (quotation omitted). Therefore, the district court only has 

jurisdiction in a statutory adjudication to consider issues raised in the 

proper pleadings established by statute. 

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In this case, the establishment of a mandatory rotation 

schedule was raised in the FOD and exceptions. The FOD stated, in 

relevant part, that 

[t]he diversion rates for the north and south split 

of Sheridan Creek are based on a spring and early 

summer average stream flow of 3.5 c.f.s. Flow and 

diversion rates during periods of drought and 

middle to late irrigation season will generally be 

less than the rates determined in the Preliminary 

Order of Determination. Therefore, all parties will 

have to share the water shortage during periods of 

low flow. The total diversion from either the north 

or south split can be used in its entirety in a 

rotation system of irrigation. 

(Emphasis added). By stating that "all parties will have to share the 

water shortage" during times of low flow through "a rotation system of 

irrigation," the State Engineer indicated that a mandatory rotation 

schedule would be imposed in times of low flow. 

This appears to be the Bentleys' interpretation of the FOD as 

well. In their notice of exceptions, the Bentleys' Exception No. 1 argued 

that their diversion rights "should not be subject to rotation" and that "the 

Bentley property should be exempt from the rotation" that the "Office of 

the State Engineer is likely to impose." Therefore, because the rotation 

schedule was properly raised in the FOD and the Bentleys' exceptions, we 

hold that the district court had jurisdiction to consider this issue. 

The pre-trial stipulation did not preclude the district court 

from imposing a mandatory rotation schedule 

The Bentleys argue that because the parties stipulated that a 

rotation schedule would not be imposed, the district court could not later 

impose one. The parties stipulated, in relevant part, 

that the State Engineer would not attempt to 

include a rotation schedule in the Decree itself, 

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but that the provisions of NRS 533.075 and the 

order of this Court would be used to determine 

when and if a rotation schedule is needed to 

efficiently use the waters of the State of Nevada. 

However, Bentley reserves all objections to the 

imposition of a rotation schedule, including 

objection about the statutory authority to do so. 

Thus, the stipulation can be reasonably interpreted to mean that the 

parties only stipulated that a specific rotation schedule, such as the times 

each water rights holder would get the full stream in the rotation, would 

not be put into the Decree itself, not that a rotation schedule could not be 

imposed by the district court. Otherwise, the second part of the 

stipulation would lack meaning and the Bentleys would have no need to 

reserve objections to the imposition of a rotation schedule if the parties 

had stipulated as they suggest. Therefore, we hold that the pre-trial 

stipulation did not affect the jurisdiction of the district court to consider 

imposing a mandatory rotation schedule. 1 

'The dissent argues that the issue of the imposition of a mandatory 

rotation schedule was not fully developed in the proceedings before the 

district court. We disagree. Evidence was presented by the State 

Engineer that he performed seepage tests on the Bentleys' ponds which 

showed that the Bentleys consumed more than their proportional share of 

water when they received a continuous flow. Testimony was also 

presented by the Intervenors that they received reduced downstream flows 

to their properties after the Bentleys' new pond was constructed, but, after 

an interim rotation schedule was implemented, they were able to fully 

water their properties. This clearly shows that imposition of a mandatory 

rotation schedule was developed below and that a rotation schedule was 

necessary for all water users to receive their apportioned share of the 

water rights. To suggest otherwise is not accurate. 

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The district court had jurisdiction to impose a rotation schedule 

The Bentleys argue that although NRS 533.075 authorizes 

water rights holders to rotate their use of a water supply to which they are 

collectively entitled, it does not authorize the district court or the State 

Engineer to impose a rotation schedule in a water rights adjudication 

process to force nonconsenting water users to participate in rotation, nor 

does any other provision in NRS Chapter 533. The Bentleys also argue 

that the district court did not have jurisdiction to impose a rotation 

schedule as part of a statutory adjudication. 2 

NRS 533.075 does not limit the power of the district court to impose a 

rotation schedule 

"When a statute is clear and unambiguous, we give effect to 

the plain and ordinary meaning of the words and do not resort to the rules 

of construction." Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790 

(2010). 

NRS 533.075 states: 

To bring about a more economical use of the 

available water supply, it shall be lawful for water 

users owning lands to which water is appurtenant 

to rotate in the use of the supply to which they 

2The Bentleys also argue that the rotation schedule allows 

Intervenors to use commingled water from Gansberg Spring, to which they 

have no rights. The water of Gansberg Spring does not flow at the same 

rate at all times of the year and generally contributes a small and variable 

percentage of the total flow. The district court found that it did not justify 

a water commissioner to regulate the flow separately. Because the 

Bentleys provide no authority for why the district court's decision 

regarding Gansberg Spring should be overturned, we decline to consider 

this issue. See Schwartz v. Eliades, 113 Nev. 586, 590 n.3, 939 P.2d 1034, 

1036 n.3 (1997) ("This court will not consider an issue if no relevant 

authority is presented on appeal."). 

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may be collectively entitled; or a single water user, 

having lands to which water rights of a different 

priority attach, may in like manner rotate in use, 

when such rotation can be made without injury to 

lands enjoying an earlier priority, to the end that 

each user may have an irrigation head of at least 2 

cubic feet per second. 

The Bentleys argue that because NRS 533.075 only authorizes 

the imposition of a rotation schedule to situations where all of the water 

users agree to it, the district court had no authority to impose an 

involuntary rotation schedule. However, while it is true that NRS 533.075 

only explicitly authorizes voluntary rotation schedules, it also does not 

limit the power of the district court to impose an otherwise involuntary 

rotation schedule after the jurisdiction of the district court has been 

properly invoked. As noted above, the FOD and the exceptions filed 

thereto, afford the district court jurisdiction in this matter to consider the 

imposition of a rotation schedule. Therefore, the Bentleys' reliance on 

NRS 533.075 is misplaced. 

The State Engineer acted within his capacity as an officer of the 

court when he implemented the rotation schedule 

In addition to challenging the district court's authority to 

impose a rotation schedule, the Bentleys, Smith, and the Bardens also 

challenge the State Engineer's enforcement of the district court's order. 3 

Smith and the Bardens argue that the State Engineer did not have the 

authority to impose a nonconsensual rotation schedule, acted arbitrarily 

and capriciously in imposing a rotation schedule, and did not have 

substantial evidence to support its decision to impose a rotation schedule. 

3This was the subject of the two petitions for judicial review whose 

appeals were consolidated with the current appeal. 

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NRS 533.220(1) states: 

From and after the filing of the order of 

determination in the district court, the 

distribution of water by the State Engineer or by 

any of the State Engineer's assistants or by the 

water commissioners or their assistants shall, at 

all times, be under the supervision and control of 

the district court. Such officers and each of them 

shall, at all times, be deemed to be officers of the 

court in distributing water under and pursuant to 

the order of determination or under and pursuant 

to the decree of the court. 

(Emphasis added.) Thus, when the State Engineer implements an order of 

determination or decree, it is acting as an officer of the court. 

Here, the district court's order as to subpart D stated that 

"[w]hen the combined flow from the North Diversion of Sheridan Creek 

and tributaries drops below 2.0 cfs, the State Engineer shall impose a 

rotation schedule." (Emphasis added.) Thus, when the North Sheridan 

Creek flow fell below 2.0 cfs, the State Engineer, acting as an officer of the 

court, was required to impose a rotation schedule. Smith and the Bardens 

do not dispute that the State Engineer's measurement of the North 

Sheridan Creek flow or the State Engineer's apportionment of water in the 

rotation schedule was incorrect. Rather, they argue that the State 

Engineer did not have the authority to impose a nonconsensual rotation 

schedule, acted arbitrarily and capriciously in imposing a rotation 

schedule, and did not have substantial evidence to support its decision to 

impose a rotation schedule. These are arguments more appropriate for 

challenging the validity of the district court's order, not the State 

Engineer's implementation of its order. When implementing the district 

court's order to impose a rotation schedule as an officer of the court, the 

State Engineer was not required to ascertain whether the district court 

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had the authority to impose a rotation schedule on nonconsenting water 

users with equal priority of rights or whether substantial evidence 

supported that decision, and its actions cannot be challenged on that 

basis. Therefore, we hold that the State Engineer was not acting 

arbitrarily or capriciously and there was substantial evidence in support of 

his actions when he imposed a rotation schedule. 4 

The diversion agreement 

One of the exceptions to the FOD made by the Bentleys 

asserted that they had the right to continuously divert water to their 

ponds under the diversion agreement and therefore could not be forced to 

participate in a rotation schedule with the other water rights holders. 

That diversion agreement, which was drafted in 1986, purportedly granted 

the Bentleys' predecessor-in-interest, Joseph Lodato, a continuous flow of 

water for the purpose of maintaining the water level in the streams and 

ponds on Lodato's property. Although the diversion agreement stated that 

the Rolphs and Gerald F. and Pamela F.J. Whitmere were the owners of 

the Sheridan Creek water rights and, collectively as grantors, granted the 

Bentleys' predecessor-in-interest, Lodato, the right to divert some or all of 

the Sheridan Creek water to maintain water levels in ponds then existing 

on Lodato's property, the Rolphs never signed the agreement. At the time 

when the agreement was drafted, water was diverted into only one pond 

4The Bentleys also argue that they were entitled to judicial review. 

Their argument on this point is unclear but appears to allege that their 

petitions for judicial review were denied by the district court on the basis 

of issue preclusion. However, the district court's order did not mention 

issue preclusion, and our review of the order does not indicate that it was 

based on issue preclusion. Therefore, the Bentleys' argument is without 

merit. 

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(the lower pond) located on the Lodato property. In 1987, Lodato recorded 

the diversion agreement. 

The Bentleys purchased the Lodato property in 2006. In 2008, 

the Bentleys constructed a new, larger pond on the property (the upper 

pond). The Bentleys then constructed a pipe from the water distribution 

box to the upper pond and another pipe or ditch from the upper pond to 

the lower pond. Lastly, they constructed a pipe to allow overflow from the 

two ponds to reach their downstream neighbors. According to the 

Bentleys, these actions were permissible under the diversion agreement 

and did not amount to consumptive use. 

The district court permitted the Intervenors to intervene in 

the case to challenge the Bentleys' right to enforce the diversion 

agreement. At trial, the Intervenors testified that the Bentleys' combined 

ponds use significantly more water than the previous single pond, 

resulting in the downstream users receiving no water during times of low 

flow. The district court held that the diversion agreement was invalid 

because it was not executed by the Rolphs and that, regardless, the 

Bentleys violated the terms of the agreement by using the waters for a 

consumptive use. 

The Bentleys argue that the district court erred in declaring 

the diversion agreement invalid because the Rolphs were not necessary 

parties to the agreement, and the Bentleys' use of the water is for a 

nonconsumptive use. 

Intervenors' response and objections to the Bentleys' notice of 

exceptions was a proper pleading 

As a preliminary matter, the Bentleys contend that NRS 

533.170 prohibits any pleadings in response to exceptions filed to the 

FOD. Therefore, because the Intervenors argued that the diversion 

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agreement was invalid in a reply to the Bentleys' exception, the district 

court erred by not dismissing it as an improper affirmative defense. 

"Even parties who fail to take exceptions to an adjudication 

when reviewed upon appeal are entitled to participation in consideration 

of the adjudication." Davenport, supra, at 110. "An adjudication is not a 

separable controversy between a few claimants." Id. "[A]l1 claimants or 

water users in [a water rights] adjudication proceeding under the [water 

statutes] are adverse." In re Water Rights in Silver Creek Sz Its 

Tributaries, 57 Nev. 232, 238, 61 P.2d 987, 989 (1936). 

NRS 533.170(2) states that "[t]he order of determination by 

the State Engineer and the statements or claims of claimants and 

exceptions made to the order of determination shall constitute the 

pleadings, and there shall be no other pleadings in the cause." "The 

purpose of the law is to limit the questions to be decided in the 

adjudication proceedings to issues raised by exceptions duly filed." 

Carpenter v. Sixth Judicial Dist. Court, 59 Nev. 42, 46, 73 P.2d 1310, 1311 

(1937). Thus, contrary to the Bentleys' assertions, NRS 533.170 does not 

prohibit any further pleadings—it simply limits the scope of all further 

pleadings to the issues raised by the exceptions while encouraging 

complete resolution of questions raised by the claimants. 

Here, the Bentleys filed an exception stating that they should 

not be subject to any rotation schedule because the diversion agreement 

gave them the right to divert the North Sheridan Creek for use in their 

ponds. Intervenors were permitted to intervene and challenge the 

Bentleys' right to enforce the diversion agreement and thus their right to a 

continuous flow from the North Sheridan Creek at the Intervenors' 

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expense. Because the Intervenors' pleading was not outside the scope of 

the Bentleys' exception, we hold that it was a proper pleading. 

The district court had jurisdiction to consider whether the diversion 

agreement was valid 

The Bentleys argue that because statutory water 

adjudications are limited in scope to determining the relative rights of the 

claimants, the district court did not have jurisdiction to determine 

whether the diversion agreement was valid. 

As previously stated, the purpose of a statutory adjudication is 

to have water rights "adjudicated in such a proceeding as to terminate for 

all time litigation between all such water users." Ruddell, 54 Nev. at 367, 

17 P.2d at 695. 

The Bentleys' argument is without merit. The validity of a 

diversion agreement, which the Bentleys purport grants them the right to 

divert water from the North Sheridan Creek in perpetuity, is within the 

scope of an adjudication to determine the relative water rights of the 

North Sheridan Creek. Furthermore, the failure to resolve the 

enforceability of the diversion agreement would invite immediate further 

litigation between the North Sheridan Creek water rights holders. 

Therefore, we hold that the district court had jurisdiction to consider the 

validity of the diversion agreement. 5 

5The Bentleys also argue that the district court's Findings of Fact, 

Conclusions of Law, Order and Judgment was not incorporated into the 

district court's final decree. However, as the final decree specifically 

references the Findings of Fact, we hold that it was incorporated into the 

decree. 

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The Bentleys breached the agreement by using the water in a 

consumptive manner by diverting it into the upper pond 

"Contract interpretation is a question of law and, as long as no 

facts are in dispute, this court reviews contract issues de novo, looking to 

the language of the agreement and the surrounding circumstances." 

Redrock Valley Ranch, LLC v. Washoe Cty., 127 Nev. 451, 460, 254 P.3d 

641, 647-48 (2011). "A basic rule of contract interpretation is that [e]very 

word must be given effect if at all possible." Bielar v. Was/toe Health Sys., 

Inc., 129 Nev., Adv. Op. 49, 306 P.3d 360, 364 (2013) (alteration in 

original) (internal quotations omitted). "A court should not interpret a 

contract so as to make meaningless its provisions." Id. (internal 

quotations omitted). "A contract should not be construed so as to lead to 

an absurd result." Reno Club, Inc. v. Young Inv. Co., 64 Nev. 312, 325, 182 

P.2d 1011, 1017 (1947). 

The diversion agreement states, in relevant part: 

This grant is specifically made on the condition 

that the water will be used by Grantee in a nonconsumptive fashion, to maintain water levels in a 

series of streams and ponds on the Exhibit "A" 

property, after which time it will be re-diverted to 

the irrigation ditches of Grantors. 

The agreement does not otherwise define "nonconsumptive fashion," and 

the referenced "Exhibit A" only describes the boundaries of the property, 

not the streams and ponds found on it. 

The State Engineer performed seepage tests on each of the 

Bentleys' ponds and found that the ponds lost water from seepage, 

evaporation, and transpiration. Basing its holding on the seepage test 

results, the district court held that because the Bentleys' ponds 

"consumed" water, the Bentleys violated the terms of the diversion 

agreement. 

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The Bentleys argue that because the diversion agreement 

specifically allows the grantee to maintain the water level in a series of 

streams and ponds on the property, the Bentleys' use to maintain the 

water level in the ponds, including the upper pond, is not a consumptive 

use as described by the agreement. The Bentleys are at least partially 

correct. By specifically stating that the purpose of the diversion 

agreement was to maintain water levels in the streams and ponds on the 

Bentleys' property, the drafters of the diversion agreement contemplated 

that the ponds would consume some water—otherwise, the diverted water 

would be unnecessary. Likewise, although the ponds consumed some 

water, the diversion agreement considered such usage to be 

nonconsumptive, as that term is used by the agreement. If this was 

considered to be a consumptive use violating the terms of the agreement, 

then the agreement would be invalid on its face. As this would be an 

absurd result, we hold that maintaining water levels in the streams and 

ponds existing on the Bentleys' property in 1987 is not a consumptive use 

as contemplated by the diversion agreement. 

However, this court must also give effect to the requirement in 

the agreement that the diverted water must be used in a nonconsumptive 

manner and that after such use, the water must be "re-diverted to the 

irrigation ditches of Grantors." See Bielar, 129 Nev., Adv. Op. 49, 306 

P.3d at 364. The agreement appears to contradict itself by granting the 

Bentleys the right to use North Sheridan Creek for the undoubtedly 

consumptive use of maintaining their pond but also requiring that the use 

be "non-consumptive" and re-divert water to the irrigation ditches of 

downstream water rights holders. These two contradictory statements 

can be reconciled by interpreting the agreement's scope of nonconsumptive 

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uses to only apply to the maintenance of the streams and ponds on the 

Bentleys' property as they existed at the time of the agreement. Otherwise 

the agreement could be construed to permit the absurd result of allowing 

the Bentleys to construct as many ponds as they wished and completely 

consume the water of the North Sheridan Creek, even in times of high 

flow, and nonetheless have it count as a nonconsumptive use. 

Here, the evidence shows that the Bentleys not only used the 

North Sheridan Creek water to maintain the streams and ponds existing 

on their property when the agreement was signed, they also dug a new, 

larger pond and used the North Sheridan Creek to maintain the water in 

that pond. The State Engineer's seepage tests of the Bentleys' ponds show 

that the Bentleys consumed twice as much water after the second pond 

was constructed as they did prior to that time. Therefore, we hold that the 

Bentleys breached the diversion agreement when they constructed a 

second pond on their property and used the North Sheridan Creek to 

maintain its water levels. 

The district court's finding that the diversion agreement was not a 

valid contract is not clearly erroneous and is supported by 

substantial evidence 

"[W]hether a contract exists is [a question] of fact, requiring 

this court to defer to the district court's findings unless they are clearly 

erroneous or not based on substantial evidence." Certified Fire Prot., Inc. 

v. Precision Constr., Inc., 128 Nev. 371, 378, 283 P.3d 250, 255 (2012) 

(alterations in original) (internal quotations omitted). "Substantial 

evidence is evidence that a reasonable mind might accept as adequate to 

support a conclusion." Whitemaine v. Aniskovich, 124 Nev. 302, 308, 183 

P.3d 137, 141 (2008). 

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"Basic contract principles require, for an enforceable contract, 

an offer and acceptance, meeting of the minds, and consideration." 

Certified Fire Prot., 128 Nev. at 378, 283 P.3d at 255 (internal quotations 

omitted). "A meeting of the minds exists when the parties have agreed 

upon the contract's essential terms" Id. 

Here, the diversion agreement stated that the Rolphs and the 

Whitmeres were the owners of the Sheridan Creek water rights and, 

collectively as grantors, granted the Bentleys' predecessor-in-interest, 

Lodato, the right to divert some or all of the Sheridan Creek water to 

maintain water levels in ponds then existing on Lodato's property. 

However, only the Whitmeres and Lodato signed the agreement. The 

signature lines for the Rolphs are blank. 

The Bentleys argue that because the Whitmeres, not the 

Rolphs, had the rights to North Sheridan Creek, the diversion agreement 

is valid as to the waters of North Sheridan Creek, even though the Rolphs 

did not sign it. 6However, in order for there to be a valid contract 

formation, there must be a meeting of the minds. See id. The agreement 

acknowledges that the Whitmeres and the Rolphs own the water rights to 

the Sheridan Creek and their agreement to grant Lodato the right to 

divert Sheridan Creek onto existing streams and ponds on Lodato's 

property. The agreement was between four grantors (the two Rolphs and 

the two Whitmeres) and one grantee, Lodato, as to the Sheridan Creek 

6The State Engineer and the Intervenors dispute whether the 

Whitmeres received the water rights to North Sheridan Creek from the 

Rolphs at the time the diversion agreement was signed. However, because 

we conclude that the agreement would be invalid even if the Whitmeres 

had the water rights at the time the diversion agreement was signed, we 

need not reach that issue. 

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water rights. Only two of the grantors signed it. The agreement does not 

contemplate any additional, separately held water rights by the two 

grantors who signed the agreement and thus the Bentleys' arguments in 

that regard are unsupportable. Therefore, the district court properly 

determined that it fails, and we hold that its finding that the diversion 

agreement was not a valid contract is not clearly erroneous and is 

supported by substantial evidence. 

The doctrine of laches does not apply 

The Bentleys argue that because the Intervenors did not 

challenge the diversion agreement from the time it was created in 1987 

until the Bentleys filed their exceptions to the FOD in 2008, the 

Intervenors should be barred from challenging the diversion agreement by 

the doctrine of laches. Specifically, the Bentleys argue that the 

Intervenors' delay in challenging the diversion agreement prejudiced the 

Bentleys because they purchased the property with the belief that the 

property carried with it the right to a continuous flow of water from the 

North Sheridan Creek. 

Laches is an equitable doctrine which may 

be invoked when delay by one party works to the 

disadvantage of the other, causing a change of 

circumstances which would make the grant of 

relief to the delaying party inequitable. To 

determine whether a challenge is barred by the 

doctrine of laches, this court considers (1) whether 

the party inexcusably delayed bringing the 

challenge, (2) whether the party's inexcusable 

delay constitutes acquiescence to the condition the 

party is challenging, and (3) whether the 

inexcusable delay was prejudicial to others. 

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Miller v. Burk, 124 Nev. 579, 598, 188 P.3d 1112, 1125 (2008) (citation 

omitted) (internal quotations omitted). 

The diversion agreement was recorded with the county 

recorder's office. Accordingly, the Intervenors had constructive notice of 

the agreement. See Allen v. Webb, 87 Nev. 261, 270, 485 P.2d 677, 682 

(1971) (holding that purchasers of realty have constructive notice of 

recorded deeds in the chain of title). However, evidence was also proffered 

that prior to the construction of the Bentleys' second pond, the Bentleys 

and their predecessors in interest never attempted to enforce the diversion 

agreement. Lastly, the Bentleys testified that whileS they were unaware of 

the diversion agreement at the time they purchased the property, their 

belief that the property had the rights to a continuous flow from North 

Sheridan Creek was an important factor in their decision to purchase the 

property. 

Because the diversion agreement was not enforced prior to the 

Bentleys' purchase of their property, we hold that the Intervenors did not 

inexcusably delay challenging the diversion agreement and that any delay 

did not constitute acquiescence to the diversion agreement's validity. 

Furthermore, as the Bentleys were unaware of the diversion agreement at 

the time they purchased the property, any delay by the Intervenors in 

challenging the agreement was not prejudicial to the Bentleys. Therefore, 

we hold that the doctrine of laches does not apply to the current case. 7 

7We also note that the doctrine of laches would only apply as to the 

Intervenors' arguments that the diversion agreement is invalid. Here, the 

district court also found that the Bentleys breached the diversion 

agreement by using the water for a nonpermissible consumptive use. 

Therefore, even if the doctrine of laches applied, it would not apply to the 

continued on next page... 

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The statute of limitations had not run 

The Bentleys argue that because the statute of limitations to 

quiet title is five years in Nevada, the Intervenors were time-barred from 

challenging the validity of the diversion agreement. 

NRS 11.070 states: 

No cause of action or defense to an action, founded 

upon the title to real property, or to rents or to 

services out of the same, shall be effectual, unless 

it appears that the person prosecuting the action 

or making the defense, or under whose title the 

action is prosecuted or the defense is made, or the 

ancestor, predecessor, or grantor of such person, 

was seized or possessed of the premises in 

question within 5 years before the committing of 

the act in respect to which said action is 

prosecuted or defense made. 

Here, although the diversion agreement was recorded in 1987, 

it was not enforced until 2008 when the Bentleys built their second pond 

and prevented water from flowing to the Intervenors. Therefore, the 

Bentleys did not seize or possess the North Sheridan Creek water until 

2008 and the statute of limitations did not begin to run until that time. 

Because the current action began with the State Engineer's filing of the 

FOD with the district court in 2008, we hold that the challenge was 

appropriately brought within the statute of limitations period. 8 

...continued 

district court's finding that the agreement was unenforceable due to 

breach by the Bentleys. 

8Similarly to the Bentleys' argument regarding laches, we note that 

the Bentleys' statute of limitations argument would also only apply as to 

the issue of whether the diversion agreement is invalid. Here, the district 

court also found that the Bentleys breached the diversion agreement by 

continued on next page... 

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Attorney fees 

The order for attorney fees was incorporated in the final judgment 

The Bentleys argue that the Intervenors' claim for attorney 

fees is based on an order entered on January 4, 2013, approximately 21 

months prior to the entry of the final decree on September 29, 2014. The 

Bentleys further argue that this decree made no reference to attorney fees, 

costs, or the January 4, 2013, order and, therefore, Intervenors are 

precluded from arguing that the 2013 order somehow became final upon 

entry of the decree and is thus enforceable. The Bentleys also argue that 

the interlocutory order did not affect the final judgment, and thus, 

pursuant to the Third Circuit Court of Appeals case of In re Westinghouse 

Securities Litigation, 90 F.3d 696, 706 (3d Cir. 1996), the order awarding 

attorney fees did not merge into the final decree. 

This court need not go as far as the Third Circuit Court of 

Appeals, as we have long held that prejudgment orders merge into the 

final judgment on appeal. Consol. Generator-Nevada, Inc. v. Cummins 

Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998). Our caselaw 

does not recognize an exception to the merger rule for interlocutory orders 

that do not affect the final judgment, and we decline to adopt such a rule 

here. Therefore, the Bentleys' argument is without merit. 

...continued 

using the water for a nonpermissible consumptive use. Therefore, even if 

the statute of limitations applied, it would not apply to the district court's 

finding that the agreement was unenforceable due to the breach by the 

Bentleys. 

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Intervenors were a prevailing party 

The Bentleys contend that the Intervenors are not the 

prevailing party because all five of the Bentleys' exceptions were resolved 

prior to trial in the Bentleys' favor and because the Intervenors only 

prevailed on three of their six claims, having abandoned the rest. The 

Bentleys further argue that it was actually the Bentleys who were the 

prevailing party. 

"A party can prevail under NRS 18.010 if it succeeds on any 

significant issue in litigation which achieves some of the benefit it sought 

in bringing suit." Valley Elec. Ass'n v. Overfield, 121 Nev. 7, 10, 106 P.3d 

1198, 1200 (2005) (internal quotations omitted). "To be a prevailing party, 

a party need not succeed on every issue," but the action must proceed to 

judgment. Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc., 131 

Nev., Adv. Op. 10, 343 P.3d 608, 615 (2015). Voluntary dismissal of some 

claims does not preclude a finding of a prevailing party for the remaining 

claims. See Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1096, 

901 P.2d 684, 688 (1995). 

The fact that the Intervenors abandoned half of their claims 

before proceeding to trial does not negate the fact that they prevailed on 

the remaining claims. See id. By voluntarily dismissing three of their 

claims, the Intervenors merely refined their action against the Bentleys. 

See id. Since these claims proceeded to judgment, the district court did 

not abuse its discretion in finding that the Intervenors were the prevailing 

party. 

Additionally, the Bentleys' argument that they are the 

prevailing party because their exceptions were resolved by stipulation is 

unpersuasive. Because stipulations as to a claim result in neither party 

being considered a prevailing party, the Bentleys cannot be deemed to be a 

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prevailing party. See Dimick v. Dimick, 112 Nev. 402, 404-05, 915 P.2d 

254, 255-56 (1996). Furthermore, the Bentleys' exception on the 

enforceability of the diversion agreement actually went to trial, with the 

district court ruling in favor of the Intervenors by determining that the 

diversion agreement was invalid. Therefore, we hold that the district 

court did not abuse its discretion by finding that the Intervenors were the 

prevailing party. 9 

The district court did not abuse its discretion in awarding attorney 

fees 

NRS 18.010(2)(b) allows a district court to award attorney fees 

to a prevailing party when the court finds that the claim of the opposing 

party "was brought. . . without reasonable ground or to harass the 

prevailing party." "To support such an award, . . . there must be evidence 

in the record supporting the proposition that the complaint was brought 

without reasonable grounds or to harass the other party." Khan v. Morse 

& Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005) (internal 

quotations omitted). Thus, "[s]uch an analysis depends upon the actual 

circumstances of the case." Semenza, 111 Nev. at 1095, 901 P.2d at 688 

(internal quotations omitted). However, "Nile decision to award attorney 

fees is within the sound discretion of the district court and will not be 

overturned absent a manifest abuse of discretion." Khan, 121 Nev. at 479, 

117 P.3d at 238 (internal quotations omitted). 

9The Bentleys also argue that the district court abused its discretion 

by failing to apportion attorney fees between causes of action that it found 

colorable and those that were groundless. However, there is no indication 

that the district court found any of the Bentleys' causes of action colorable. 

Therefore, we hold that the district court did not abuse its discretion by 

not apportioning attorney fees between causes of action. 

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Here, the district court's decision to award attorney fees was 

grounded on the following findings and conclusions: 

F. ATTORNEY FEES: 

44. Mr. Bentley, through intimidation and 

threat, attempted to bully the Intervenors, acting 

in a manner to harass and financially exhaust the 

Intervenors. 

45. [The] Bentleys brought and maintained 

their Exception No. 1 relating to the Diversion 

Agreement without reasonable grounds. 

46. The Diversion Agreement contains a 

clause that allows attorney fees to the prevailing 

party in the event a lawsuit is brought to enforce 

or interpret the Agreement. 

47. [The] Bentleys asserted that the 

Agreement dated August 5, 1986, and the letter 

recorded August 6, 1986, granted an additional 

right to divert the flow of Sheridan Creek through 

the ponds. (Exhibit 7.) However, those documents 

did not grant any additional rights and are 

invalid. 

48. The Bentleys proceeded in this matter 

under an erroneous theory and under an 

erroneous thought process, and therefore, their 

action was maintained by them without 

reasonable grounds. 

CONCLUSIONS OF LAW 

20. The Intervenors are adjudged to be the 

prevailing parties for purposes of an award of 

attorney fees to be supported by a separate motion 

or memorandum for the same pursuant to NRCP 

54(d) and NRS 18.010. 

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The Bentleys maintained that the diversion agreement was 

valid despite it not being signed by two of the parties necessary to the 

execution of the agreement. The Bentleys further attempted to strike the 

Intervenors' opposition to the Bentleys' exceptions as an improper 

pleading, despite the fact that, as an adverse party in a statutory 

adjudication of a water system, the Intervenors had the right to oppose the 

Bentleys' exceptions. While it is arguable as to whether the Bentleys' 

contentions had merit, in our view, they were not so clearly meritorious as 

to render the district court's finding that they were unreasonable and 

brought for the purpose of harassment, to be a manifest abuse of 

discretion. Therefore, we hold that the district court did not abuse its 

discretion by awarding attorney fees to the Intervenors. 

Sufficient evidence supported the district court's finding that 

the Intervenors incurred fees 

The Bentleys argue that the Intervenors' obligation for 

attorney fees was illusory and not actually incurred because "Hall 

Ranches was a self-represented entity, with Tom Hall as its owner and 

attorney." Therefore, because Hall Ranches was one of the Intervenors in 

this case and Thomas Hall was the Intervenors' attorney, Thomas Hall 

was a pro se litigant not entitled to recover attorney fees. The Bentleys 

cite to Sellers v. Fourth Judicial District Court, 119 Nev. 256, 259, 71 P.3d 

495, 497-98 (2003), and Lisa v. Strom, 904 P.2d 1239, 1243 (Ariz. Ct. App. 

1995), for this proposition. 

Sellers and Strom are inapposite here, as both deal with an 

attorney representing himself pro se. See Sellers, 119 Nev. at 259, 71 P.3d 

at 497-98 ("[A]n attorney pro [se] litigant must be genuinely obligated to 

pay attorney fees before he may recover such fees."); see also Lisa, 904 

P.2d at 1243 ("[A]n additional, indispensable requirement to an award of 

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attorney[ ] fees to pro se attorneys [is] a genuine financial obligation on 

the part of the litigants to pay such fees."). Here, the record indicates that 

Thomas J. Hall, Esq., disclosed to the district court that he was a minority 

owner of Hall Ranches, LLC. Although Hall is a minority owner, the 

record does not reflect that he represented himself in pro se; rather, he 

represented Hall Ranches, LLC, an existing and valid limited liability 

company in Nevada, holding water rights V-06340 and V-06341, as well as 

the other Intervenors. Furthermore, the Bentleys provide no evidence in 

support of their contention that the Intervenors were not genuinely 

obligated to pay attorney fees to Hall. Accordingly, we hold that the 

district court did not abuse its discretion in awarding attorney fees to the 

Intervenors.° 

Conclusion 

The district court had jurisdiction to consider the imposition of 

a rotation schedule on the North Sheridan Creek water rights holders. 

Furthermore, the State Engineer acted within his capacity as an officer of 

the court in enforcing the district court's order imposing a rotation 

schedule and did not act arbitrarily and capriciously. Next, the district 

court's finding that the diversion agreement proffered by the Bentleys was 

invalid was not clearly erroneous and is supported by substantial 

evidence. Even if the diversion agreement was valid, the agreement was 

°Because we are affirming the district court's orders denying the 

petitions for judicial review, we also affirm the district court's order 

awarding Intervenors costs in those actions. 

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C.J. 

Parraguirre 

J. 

breached by Bentley. Lastly, the district court did not abuse its discretion 

in awarding the Intervenors attorney fees. Therefore, 

ORDER the judgment of the district court AFFIRMED. 

Hardest 

J. 

J. 

J. 

Gibbons 

PICKERING, J., concurring in part and dissenting in part: 

I dissent from the foregoing order to the extent that it affirms 

the imposition of mandatory rotation schedules on holders of equal 

priority vested water rights in the North Diversion of Sheridan Creek. 

This issue was not part of the proceedings before the State Engineer that 

culminated in the final order of determination (FOD). The footnote on 

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page 199 of the 235-page FOD on which the majority relies to deem 

mandatory rotation fairly in play in the proceedings below says only that, 

"all parties will have to share the water shortage during periods of low 

flow. The total diversion from either the north or south split can be used 

in its entirety in a rotation system of irrigation." Although this footnote 

permits water rights holders to agree to rotation schedules during periods 

of low flow—"the total diversion .. . can be used. . . in a rotation 

system"—I do not read it to say the rights may be subjected to mandatory 

or forced rotation, over the objection of a vested, equal-priority, waterrights holder. Confirming this reading, Paragraph XIV of the FOD, "Duty 

of Water," states: 

3. Rotation and Use of Water 

Claimants of vested water rights and those owners 

of water rights acquired through the appropriative 

process from a common supply may rotate the use 

of water to which they are collectively entitled 

based on an agreement, so as to not injure 

nonparticipants or infringe upon their water 

rights, which is subject to approval by the State 

Engineer. The purpose is to enable irrigators to 

exercise their water rights more efficiently, and 

thus to bring about a more economical use of 

available water supplies in accordance with their 

dates of priority. NRS 4'533.075. 

(emphasis added). The foregoing paragraph of the FOD—text, not 

footnote—says that water rights holders may agree to rotation schedules, 

not that rotation schedules may be forced on nonconsenting water rights 

holders. And, indeed, this is what NRS 533.075, which the FOD cites, 

says too: "To bring about a more economical use of the available water 

supply, it shall be lawful for water users owning lands to which water is 

appurtenant to rotate in the use of the supply to which they may be 

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collectively entitled, . . . to the end that each user may have an irrigation 

head of at least 2 cubic feet per second." 

The mandatory rotation orders at issue on this appeal 

originated in a statutory water rights adjudication undertaken pursuant 

to NRS 533.090 through NRS 533.435. After years of administrative 

proceedings, the State Engineer filed his FOD with the district court, 

whereupon a hearing date was set as per NRS 533.160(6). The FOD 

"defin[ed] the several rights to the waters of' North Diversion of Sheridan 

Creek, NRS 533.160(1); pursuant to NRS 533.170(1), "exceptions" to the 

FOD by "all parties in interest who are aggrieved or dissatisfied with" it 

were due 5 days before the scheduled district court hearing. By law, "[t]he 

[POD] and the statements or claims of claimants and exceptions made to 

the [FON shall constitute the pleadings, and there shall be no other 

pleadings in the cause." NRS 533.170(2) (emphasis added). 

Insofar as is relevant to these appeals, the FOP defined the 

water rights in North Diversion of Sheridan Creek as vested, with equal 

priority dates of 1852. Notwithstanding the footnote on page 189 of the 

FOD on which the majority relies, I submit, for the reasons set out above, 

that the FOP did not give these vested water rights holders fair notice 

that their adjudicated water rights were or properly could be subject to 

mandatory, non-consensual rotation schedules if they did not file 

exceptions to the FOD. Nor do I agree that the exceptions the Bentleys 

filed, and the intervenors' responses thereto, made mandatory rotation an 

issue in the district court proceeding. To be sure, the Bentleys referenced 

rotation in their exceptions. But, by later stipulation and order, all parties 

agreed that only the Bentleys' Diversion Agreement, not mandatory 

rotation, was being litigated. Compare NRS 533.170(5) (providing that 

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proceedings under NRS 533.170, "shall be as nearly as may be in 

accordance with the Nevada Rules of Civil Procedure"), with NRCP 16 

(stating that a pretrial conference "order shall control the subsequent 

course of the action unless modified by a subsequent order" and then, 

"only to prevent manifest injustice"). 

Predictably, given the pleadings, the evidence at trial focused 

on the Diversion Agreement and the impact the Bentleys' construction of a 

second pond in reliance thereon had on the intervenors' water rights. 

That evidence showed that the Bentleys' construction of a second pond 

adversely impacted downstream users during periods of low water flow. 

Citing this evidence, the State Engineer's lawyer orally asked, in closing 

argument, that the court direct the State Engineer to impose rotation 

schedules on persons holding vested water rights in North Diversion of 

Sheridan Creek when the flow drops below 2.0 cfs (this is the level NRS 

533.075 references in declaring voluntary rotation agreements 

"lawful. . . to the end that each user may have an irrigation head of at 

least 2 cubic feet per second"). With no amendment to the pleadings, the 

district court accepted the State Engineer's lawyer's suggestion: In 

addition to invalidating the Bentleys' Diversion Agreement, the district 

court's findings of fact and decree affirming the FOD respecting North 

Sheridan Creek,n directs that "[w]hen the combined flow from the North 

Diversion of Sheridan Creek and tributaries drops below 2.0 cfs, the State 

"As the majority recites, the FOD encompassed rights to more than 

just the North Diversion of Sheridan Creek, so the decree did not become 

final and appealable immediately. For simplicity's sake, proceedings not 

related to North Diversion of Sheridan Creek water rights are not 

discussed in this dissent. 

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Engineer shall impose a rotation schedule." In both 2012 and 2013, the 

flow dropped below 2.0 cfs and the State Engineer imposed a rotation 

schedule. The Bentleys, the Bardens, and Joy Smith then petitioned for 

judicial review. Citing its earlier findings of fact and decree, the district 

court rejected the petitioners' legal and factual challenges to the 

mandatory rotation schedules imposed on them. These consolidated 

appeals followed. 

The majority upholds the mandatory rotation schedules. 

Given the procedural history set forth above, this result is insupportable. 

"It is . . settled in this state that the water law and all proceedings 

thereunder are special in character and the provisions of such law not only 

lay down the method of procedure, but strictly limit it to that provided." 

G. & M Props. v. Second Judicial Dist. Court, 95 Nev. 301, 305, 594 P.2d 

714, 716 (1979) (quoting Application of Filippini, 66 Nev. 17, 27, 202 P.2d 

535, 540 (1949) (citing Ruddell v. Sixth Judicial Dist. Court, 54 Nev. 363, 

17 P.2d 693 (1933) and In re Water Rights in the Humboldt River Stream 

Sys., 49 Nev. 357, 246 P. 692 (1926))). Here, the pleadings, as defined in 

NRS 533.170(2), gave no notice that the vested rights dating back to 1852 

determined by the State Engineer were sought to be abridged by imposing 

a mandatory rotation schedule on their holders. On the contrary, in 

paragraph XIV of the FOD, reprinted above, the State Engineer abjures 

authority to mandate rotation schedules, citing NRS 533.075, which limits 

its authorization of rotation schedules to agreed-upon schedules, not 

mandated ones. 12If the district judge wanted to consider mandatory 

12 0f note, the State Engineer does not, even in his briefs on appeal, 

assert direct authority to impose mandatory rotation schedules on 

nonconsenting vested water rights holders. Rather, the State Engineer 

continued on next page... 

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rotation schedules, he could and should have referred the matter back to 

the State Engineer pursuant to NRS 533.180 ("The court may, if 

necessary, refer the case or any part thereof for such further evidence to 

be taken by the State Engineer as it may direct, and may require a further 

determination by the State Engineer, subject to the court's instructions."), 

but he did not. Without having been developed in the proceedings before 

the State Engineer, or in district court, and hence fully vetted both 

factually and legally by all interested persons, the mandatory rotation 

schedules the district court ordered were not fairly made a part of the 

special statutory proceedings authorized by NRS 533.090 through NRS 

533.435. 

The procedural deficiencies give rise to related legal and 

evidentiary deficiencies. As noted, NRS 533.075 authorizes water users to 

agree among themselves to rotation schedules but it does not, by its plain 

terms, authorize the State Engineer or the courts to mandate them over 

objection—indeed, the State Engineer does not argue otherwise. While 

other jurisdictions have, on occasion, imposed mandatory water rotation 

schedules, it is not clear that it is appropriate to do so in Nevada, where 

our water law rests on the prior appropriation doctrine, not riparian 

rights. Cf. Colorado v. New Mexico, 459 U.S. 176, 179 n.4 (1982) 

...continued 

defends his actions by relying on the district court's findings of fact and 

conclusions of law, which the State Engineer argues require him to impose 

rotation schedules, without regard to whether, independent of the court's 

order, he has the authority to so require. See Answering Brief of the State 

Engineer, at 19 ("Smith and Barden argue throughout their brief that the 

State Engineer imposed the rotation schedules by []his own authority. 

However, ... the State Engineer only implemented rotation schedules in 

compliance with orders of the decree court."). 

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J. 

("Appropriative rights are fixed in quantity; riparian rights are variable 

depending on streamflow and subject to reasonable uses of others."). 

Further complicating matters, the record suggests some of the water 

rights holders in the North Diversion of Sheridan Creek use the water for 

irrigation, while others use theirs for domestic and stock and wildlife 

watering purposes, which do not as readily lend themselves to rotation. 

Cf. Union Mill & Mining Co. v. Dangberg, 81 F. 73, 122 (C.C.D. Nev. 1897) 

(allowing rotation under the riparian rights doctrine for purposes of 

irrigation and milling but noting that, "The respondents are also entitled 

to a decree allowing them, and each of them, at all times, to take and use a 

sufficient quantity of water from the river for their household and 

domestic purposes, and for watering their stock.") (emphasis added). 

Legal and factual issues as complex and important as these deserve full 

development before the State Engineer and the district court, with input 

from all affected water rights holders. 

For these reasons, while I agree with the majority in its 

decision affirming the district court's invalidation of the Diversion 

Agreement, I respectfully dissent. I would reverse and remand to the 

district court with instructions to refer the matter to the State Engineer to 

determine, in the first instance, whether the law or the evidence supports 

imposing a mandatory rotation schedule on the holders of vested water 

rights in the North Diversion of Sheridan Creek. 

Pickering 

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cc: Hon. Nathan Tod Young, District Judge 

Dyer, Lawrence, Penrose, Flaherty, Donaldson & Prunty 

Matuska Law Offices, Ltd. 

Attorney General/Carson City 

Law Offices of Thomas J. Hall 

Douglas County Clerk 

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