FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff,

WALKER RIVER PAIUTE TRIBE,

Intervenor-Plaintiff,

and

WALKER LAKE WORKING GROUP,

Defendant-Appellant,

MINERAL COUNTY,

Intervenor-Plaintiff-Appellant,

v.

WALKER RIVER IRRIGATION

DISTRICT; NEVADA DEPARTMENT OF

WILDLIFE; FENILI FAMILY TRUST,

c/o Peter Fenili and Veronica Fenili,

Trustees; SIX N RANCH, INC., c/o

Richard and Cynthia Nuti; MICHAEL

NUTI; NANCY NUTI; RALPH E. NUTI;

MARY E. NUTI; LAWRENCE M. NUTI;

LESLIE NUTI; MICA FARMS, LLC, c/o

Mike Faretto; JOHN AND LURA

WEAVER FAMILY TRUST, c/o Lura

Weaver, Trustee; SMITH VALLEY

GARAGE, INC., c/o Dan Smith and

No. 15-16342

D.C. No.

3:73-cv-0128-

MMD

OPINION
2 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

Shawna Smith; DONALD GIORGI;

LORIE MCMAHON; MERLE

MCMAHON; CENTENNIAL

LIVESTOCK; LYON COUNTY;

ANNETT’S MONO VILLAGE; F.I.M.

CORPORATION; R.N. FULSTONE

COMPANY; JAMES T. FOUSEKIS,

Trustee; CHRIS H. GANSBERG, JR.;

FAYE E. GANSBERG; TODD

GANSBERG; HUNEWILL LAND &

LIVESTOCK CO., INC.; DAVID

SCEIRINE; PAMELA HAAS; VIRGINIA

LAKE MUTUAL WATER COMPANY;

MONO COUNTY, County Counsel,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du,* District Judge, Presiding

Argued and Submitted August 30, 2017

Submission Withdrawn May 2, 2018

Resubmitted January 21, 2021

Pasadena, California

Filed January 28, 2021

* This case was reassigned to Judge Du from Judge Robert Clive

Jones on July 19, 2018.
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 3

Before: A. Wallace Tashima, Susan P. Graber,** and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Tashima

SUMMARY***

Water Rights

The panel affirmed in part, and vacated in part, the district

court’s dismissal of Mineral County’s complaint that

intervened in longstanding litigation over the appropriation of

Walker River Basin waters.

In 1936, the U.S. District Court for the District of Nevada

entered the Walker River Decree, adjudicating and settling

water rights within the Walker River Basin under the doctrine

of prior appropriation. The County intervened, and alleged

that the public interest and maintenance of the public trust

required that water flows be allowed to reach Walker Lake to

sustain the fish population and preserve recreational values

for the County residents. After the district court dismissed

the County’s complaint and the County appealed, the panel

certified questions to the Nevada Supreme Court, which held

** Judge Raymond C. Fisher was a member of the panel that certified

questions to the Nevada Supreme Court. Judge Fisher has since died and

Judge Graber was randomly drawn to replace him. See Ninth Cir. Gen

Order 3.2(h).

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

that Nevada’s “public trust doctrine applies to rights already

adjudicated and settled under the doctrine of prior

appropriation,” but that “the public trust doctrine does not

permit reallocating water rights already adjudicated and

settled under the doctrine of prior adjudication.” Mineral

County v. Lyon County, 473 P.3d 418, 425, 430 (Nev. 2020)

(en banc). 

In light of the Nevada Supreme Court’s decision, the

panel held that the district court properly dismissed the

County’s public trust claim to the extent it sought a

reallocation of water rights adjudicated under the Decree and

settled under the doctrine of prior appropriation. The panel

vacated the judgment of the district court and remanded with

instruction to consider the County’s public trust doctrine

claim to the extent it sought remedies that would not involve

a reallocation of adjudicated water rights. The panel

remanded to the district court to consider in the first instance

the County’s arguments that were not properly addressed by

the district court. The panel rejected as untimely the

County’s challenge to the 1936 Decree itself.

COUNSEL

Simeon M. Herskovits (argued) and Iris Thornton, Advocates

for Community & Environment, El Prado, New Mexico; and

SeanA.Rowe,Mineral CountyDistrict Attorney, Hawthorne,

Nevada; for Plaintiff-Intervenor-Appellant Mineral County,

Nevada, and Defendant-Appellant Walker Lake Working

Group.
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 5

Gordon H. DePaoli (argued) and Dale E. Ferguson,

Woodburn and Wedge, Reno, Nevada, for DefendantAppellee Walker River Irrigation District.

Roderick E. Walston (argued), and Steven G. Martin, Best

Best & Krieger LLP, Walnut Creek, California; Stephen B.

Rye, District Attorney, Lyon County, Yerington, Nevada;

Jerry M. Snyder, Reno, Nevada; Therese A. Ure, Schroeder

Law Offices P.C., Reno, Nevada; Stacey Simon, County

Counsel; Stephen M. Kerins, Deputy County Counsel; Jason

Canger, Assistant County Counsel; Office of the County

Counsel, County of Mono, Mammoth Lakes, California; for

Defendants-Appellees Lyon County, Centennial Livestock,

Mono County, and the Schroeder Group.

Bryan L. Stockton (argued), Senior DeputyAttorneyGeneral;

Tori N. Sundheim, Deputy Attorney General; Aaron D. Ford,

Attorney General; Attorney General’s Office, Carson City,

Nevada; for Defendant-Appellee Nevada Department of

Wildlife.

Robert W. Byrne, Senior Assistant Attorney General; Randy

L. Barrow, Supervising Deputy Attorney General; Deborah

Barnes and Tara L. Mueller, Deputy Attorneys General;

Attorney General’s Office, Oakland, California; for Amicus

Curiae State of California.

John Echeverria, Vermont Law School, South Royalton,

Vermont, for Amici Curiae Natural Resources Defense

Council and Sierra Club.

David R. Owen, Professor of Law, UC Hastings College of

Law, San Francisco, California; Richard M. Frank, Professor
6 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

of Environmental Practice, UC Davis School of Law, Davis,

California; for Amici Curiae Law Professors.

Wes Williams, Law Offices of Wes Williams Jr. P.C.,

Schurz, Nevada, for Amicus Curiae Walker River Paiute

Tribe.

OPINION

TASHIMA, Circuit Judge:

In 1936, the United States District Court for the District

of Nevada entered the Walker River Decree (“Decree”),

adjudicating and settling water rights within the Walker River

Basin under the doctrine of prior appropriation. In the

ensuing decades, these water allocations have adversely

affected Walker Lake, the terminus of the Basin’s water

flows. The lake has lost more than half of its surface area and

volume, and the lake’s once-vibrant fishing and recreational

activities—the lifeblood of Mineral County’s economy and

a significant source of County revenues—have been

threatened. To address these effects, Mineral County (the

“County”) intervened in longstanding litigation over the

Basin’s waters, alleging that “[t]he public interest and

maintenance of the public trust require[s] that the flows be

allowed to reach Walker Lake that will sustain minimum

levels for the naturally occurring fish population and provide

for the preservation of Walker Lake for the citizens and

residents of the County for recreational values, preservation

of wildlife, and maintenance of the economy of Mineral

County.”
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 7

After the district court dismissed the County’s complaint

and the County appealed, we certified questions to the

Nevada Supreme Court, see Mineral County v. Walker River

Irrigation Dist., 900 F.3d 1027, 1034 (9th Cir. 2018), which

the state court has now answered, holding that Nevada’s

“public trust doctrine applies to rights already adjudicated

and settled under the doctrine of prior appropriation,” but that

“the public trust doctrine does not permit reallocating water

rights already adjudicated and settled under the doctrine of

prior appropriation.” Mineral County v. Lyon County,

473 P.3d 418, 425, 430 (Nev. 2020) (en banc).

In light of the Nevada Supreme Court’s decision, we

vacate the judgment of the district court and remand with

instructions to consider the County’s public trust doctrine

claim to the extent it seeks remedies that would not involve

a reallocation of adjudicated water rights. We also reject as

untimely the County’s challenge to the 1936 Decree itself.

I. BACKGROUND

We summarized the background of this litigation in our

August 2018 certification order:

A. The Walker River Basin and Walker

Lake’s Decline

The Walker River Basin covers about

4000 square miles, running northeast from its

origins in the Sierra Nevada Mountains in

California before turning south and ultimately

flowing into Walker Lake in Nevada. The

first quarter of the basin lies in California, and

California accounts for a majority of the
8 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

precipitation and surface water flow into the

basin. The vast majority of the water is

consumed across the border in Nevada.

Walker Lake is about 13 miles long, five

miles wide and 90 feet deep—a large lake by

most any measure. But its size and volume

have shrunk significantly since they were first

measured in 1882. By 1996, Walker Lake had

retained just 50 percent of its 1882 surface

area and 28 percent of its 1882 volume. 

Today’s Walker Lake also suffers from high

concentrations of total dissolved solids

(“TDS”)—meaning it has a high salt content,

low oxygen content and a high temperature.

These conditions have drastically

degraded the lake’s environmental and

economic well-being. The high TDS

concentrations have proven so inhospitable to

fish species that, according to Mineral

County, much of the lake’s fishing industry

“has been eliminated for the time being.” 

Walker Lake’s decline also threatens its status

as an important shelter for migratory birds,

and it has “drive[n] away the many Nevadans

and other Americans who used Walker Lake

for recreational enjoyment and economically

productive activities.” Although the parties

dispute the cause of Walker Lake’s troubles,

it seems clear that upstream appropriations

play at least some part, together with

declining precipitation levels and natural lake

recession over time.
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 9

B. Litigation Over Water Rights in the

Basin

In an effort to protect and rehabilitate

Walker Lake, Mineral County intervened in

the long-running litigation over water rights in

the Walker River Basin. That litigation began

in 1902, when one cattle and land company

sued another in the United States District

Court for the District of Nevada over

appropriations from the Walker River. After

considerable back and forth in state and

federal court—including a Supreme Court

decision holding that the Nevada federal court

had prior, exclusive jurisdiction over the

action, see Rickey Land & Cattle Co. v. Miller

& Lux, 218 U.S. 258, 262 (1910)—the case

ended in 1919.

Five years later, the United States brought

a new action in Nevada federal court, seeking

to establish the water rights of the Walker

Lake Paiute Tribe. After 12 more years of

litigation—bringing us to 1936—that

proceeding resulted in the Walker River

Decree. The Walker River Decree

adjudicated the water rights of hundreds of

claimants under the doctrine of prior

appropriation.[1]

 The Decree also created the

1

“Like most western states, Nevada is a prior appropriation state. 

The prior appropriation doctrine grants ‘[a]n appropriative right[that] may

be described as a state administrative grant that allows the use of a specific

quantity of water for a specific beneficial purpose if water is available in
10 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

Walker River Commission and the United

States Board of Water Commissioners. The

federal district court in Nevada has

maintained jurisdiction over the Decree and

its administration ever since.

In 1987, the Paiute Tribe intervened in the

Walker River litigation to establish

procedures for reallocating water rights under

the Decree. Since that proceeding’s

conclusion in 1988, the Nevada State

Engineer reviews all applications to change

allocations under the Decree in Nevada,

subject to review by the Nevada federal

district court. It appears that Nevada’s prior

appropriation law, which has largely been

codified, governsthe Engineer’s decisions and

the district court’s review. See, e.g., Nev.

Rev. Stat. § 533.370; see also Greg Walch,

Water Law: 9 Treading Water Law—A

Nevada Water Rights Primer, 6 Nev. Law. 18,

18 (Nov. 1998) (discussing the history of prior

appropriation and its codification in Nevada). 

Next, in 1991, the Paiute Tribe and the United

States sought recognition of the Tribe’s right

to a certain additional amount of water from

the Walker River, under a principle that

Native American tribes have superior water

rights based on their relationship to the federal

government . . . .

the source free from the claims of others with earlier appropriations.’”

Mineral County, 473 P.3d at 423 (alterations in original) (quoting Desert

Irrigation, Ltd. v. State, 944 P.2d 835, 837 n.1 (Nev. 1997) (per curiam)).
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 11

C. Mineral County’s Intervention

In 1994, Mineral County moved to

intervene in the Decree litigation. The district

court granted the motion in 2013. The

amended complaint in intervention alleges

that “[a]ctivities and businesses attributable to

the presence and use of Walker Lake

represent[ ] approximately 50% of the

economy of Mineral County.” The complaint

asks the Decree court, “pursuant to its

continuing jurisdiction under . . . the . . .

Decree, [to] reopen and modify the final

Decree to recognize the rights of Mineral

County . . . and the public to have minimum

levels [of water] to maintain the viability of

Walker Lake.” Mineral County seeks

recognition “that a minimum of 127,000

acre/feet [of water] per year to Walker Lake is

. . . required under the doctrine of

maintenance of the public trust.”[2]

The Working Group—already a party to

this litigation as a right-holder under the

Decree—supports Mineral County’s position. 

2 The Nevada Supreme Court expressly adopted the public trust

doctrine in Lawrence v. Clark County, 254 P.3d 606, 607 (Nev. 2011) (en

banc). “The public trust doctrine establishes that the state holds its

navigable waterways and lands thereunder in trust for the public.” 

Mineral County, 473 P.3d at 423. In Mineral County, the Nevada

Supreme Court clarified that the “doctrine applies to rights already

adjudicated and settled under the doctrine of prior appropriation” and “to

all waters within the state, whether navigable or nonnavigable.” Id. at 425

(emphasis omitted).
12 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

Because of the posture of this case, the

Working Group is considered a defendant as

to Mineral County’s intervention. But the

Working Group “always has supported efforts

to transfer water rights for use in Walker Lake

. . . and has supported the enforcement of the

public trust doctrine for this same purpose.”

In 2015, the district court dismissed the

amended complaint in intervention. First, the

district court held Mineral County lacked

standing to assert its public trust claim. It

concluded Mineral County’s claim “was

based purely on a parens patriae theory” of

standing—i.e., that Mineral County did not

assert any of its own interests, only those of

its citizens—and that a county lacks the

ability to sue as parens patriae.

Notwithstanding its conclusion on

standing, the district court also addressed the

merits of Mineral County’s public trust claim. 

It concluded the public trust doctrine may

factor into future allocations of water, but that

using the doctrine to reallocate rights already

adjudicated under the Decree would constitute

a taking and require just compensation. 

Invoking the political question doctrine, the

court concluded it lacked authority to order

Nevada to effectuate such a taking. The

district court also held, without analysis, that

Walker Lake is not part of the Walker River

Basin under the Decree, and therefore that the
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 13

Decree prohibits allocating any water

specifically to the lake.

Mineral County, 900 F.3d at 1028–30 (9th Cir. 2018)

(amended order) (some alterations in original) (footnotes

omitted).

II. PROCEEDINGS ON APPEAL

The County timely appealed. We issued a memorandum

disposition holding that the County has standing. Mono

County v. Walker River Irrigation Dist., 735 F. App’x 271,

273–74 (9th Cir. 2018). In a published opinion, we certified

two questions to the Nevada Supreme Court:

[1] Does the public trust doctrine apply to

rights already adjudicated and settled under

the doctrine of prior appropriation and, if so,

to what extent?

[2] If the public trust doctrine applies and

allows for reallocation of rights settled under

the doctrine of prior appropriation, does the

abrogation of such adjudicated or vested

rights constitute a “taking” under the Nevada

Constitution requiring payment of just

compensation?

Mineral County, 900 F.3d at 1034. In a related appeal, we

also held that Walker Lake is part of the Walker River Basin. 
14 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

United States v. U.S. Bd. of Water Comm’rs, 893 F.3d 578,

606 (9th Cir. 2018).3

The Nevada Supreme Court accepted certification,

rephrased the first question to ask whether “the public trust

doctrine permit[s] reallocating rights already adjudicated and

settled under the doctrine of prior appropriation,” and

answered the question in the negative. Mineral County,

473 P.3d at 421. The court explained that “Nevada’s water

statutes are consistent with the public trust doctrine” because

they “require the State Engineer to consider the public

interest in allocating water rights” and satisfy the three-part

test described in Lawrence for determining whether the

alienation of public trust property is valid. Id. at 426–27

(emphasis omitted) (citing Lawrence, 254 P.3d at 616). Next,

the court held that “[t]he state’s water statutes recognize the

importance of finality in water rights and therefore do not

permit reallocation of adjudicated water rights.” Id. at 429

(emphasis omitted). The court therefore held that “the public

trust doctrine does not permit reallocating water rights

already adjudicated and settled under the doctrine of prior

appropriation.” Id. at 430. The court explained:

We recognize the tragic decline of Walker

Lake. But while we are sympathetic to the

plight of Walker Lake and the resulting

negative impacts on the wildlife, resources,

and economy in Mineral County, we cannot

use the public trust doctrine as a tool to uproot

3

In a separate related appeal, we also reassigned “all aspects of the

Walker River Basin water rights case pending in the District of Nevada”

to a different district judge. United States v. Walker River Irrigation Dist.,

890 F.3d 1161, 1174 (9th Cir. 2018).
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 15

an entire water system, particularly where

finality is firmly rooted in our statutes. We

cannot read into the statutes any authority to

permit reallocation when the Legislature has

already declared that adjudicated water rights

are final, nor can we substitute our own policy

judgments for the Legislature’s.

Id. (footnote omitted).

III. STANDARD OF REVIEW

We review de novo a dismissal for failure to state a claim

upon which relief can be granted, accepting all factual

allegations in the complaint as true and drawing all

reasonable inferences in favor of the nonmoving party. Oki

Semiconductor Co. v. Wells Fargo Bank, N.A., 298 F.3d 768,

772 (9th Cir. 2002).

IV. DISCUSSION

To the extent that Mineral County seeks a reallocation of

water rights already adjudicated and settled under the doctrine

of prior appropriation, the parties agree that the County’s

claim is foreclosed by the Nevada Supreme Court’s decision. 

Insofar as the County seeks a reallocation of water rights, it

appears that “the voluntary sale and purchase of water rights

is the only available means to accommodate the needs of

current water right holders and to restore Walker Lake under
16 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

the Decree.” Suppl. Br. of Appellee Nev. Dep’t of Wildlife

at 4.4

The County insists, however, that this is not the end of the

case. The County identifies two legal theories that it says

would not require a reallocation of adjudicated water rights. 

Because the Nevada Supreme Court did not address, let alone

foreclose, these theories, the County maintains that we should

vacate the judgment and remand for further proceedings on

these two theories. As we shall explain, we agree in part with

the County’s contentions.

A. Challenging the 1936 Decree Itself

First, we reject the County’s argument that we should

remand for further proceedings on its claim that the 1936

Decree itself violates the public trust doctrine. The County

points out, correctly, that the water rights at issue here were

adjudicated in 1936, long before the Nevada Supreme Court,

in its 2011 Lawrence decision, first articulated its three-part

test for determining whether the alienation of public trust

waters satisfies the public trust doctrine.5 Thus, in the

4

 Such efforts may have already achieved some success. According

to the County, a “substantial portion of the necessary inflows to Walker

Lake already is being provided for by the Walker Basin Conservancy’s

water rights acquisition program, which involves the purchase of Walker

River water rights on the open market and transfer of those rights to

instream flow use in order to benefit Walker Lake.” Suppl. Br. of

Appellants Mineral County & Walker Lake Working Grp. at 23.

5 Lawrence held that, when “reviewing dispensations of public trust

property . . . , courts of this state must consider (1) whether the

dispensation was made for a public purpose, (2) whether the state received

fair consideration in exchange for the dispensation, and (3) whether the

dispensation satisfies ‘the state’s special obligation to maintain the trust
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 17

County’s view, no court has ever determined whether the

dispensation of state waters under the 1936 Decree comports

with the public trust doctrine, and it is an open question

“whether adequate consideration of the public trust occurred

in the individual allocative decisions of the Walker River

Decree.” Suppl. Br. of Appellants Mineral County & Walker

Lake Working Grp. at 14. Consequently, the County argues

that this “case must be remanded to the district court to

determine . . . whether the 1936 Decree, which merely

confirmed pre-statutory prior appropriative rights, violated

the public trust doctrine by over-allocating the basin and

failing to consider the doctrine.” Id. at 19.

Whatever merit there may be to this novel contention, we

are not persuaded that the claim is timely. In Mineral

County, the Nevada Supreme Court noted that challenges to

a judicial decree adjudicating water rights must be brought

within three years:

As part of Nevada’s comprehensive water

statutes, which we conclude adhere to the

public trust doctrine, the Legislature enacted

NRS 533.185 to establish a judicial decree

regarding a water right permit. Regarding

those judicial decrees, NRS 533.210(1)

provides that:

The decree entered by the court, as

provided by NRS 533.185, shall be

final and shall be conclusive upon all

for the use and enjoyment of present and future generations.’” Lawrence,

254 P.3d at 616 (quoting Arizona Ctr. for Law v. Hassell, 837 P.2d 158,

170 (Ariz. Ct. App. 1991)).
18 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

persons and rights lawfully embraced

within the adjudication; but the State

Engineer or any party or adjudicated

claimant upon any stream or stream

system affected by such decree may,

at any time within 3 years from the

entry thereof, apply to the court for a

modification of the decree . . . .

Mineral County, 473 P.3d at 429 (emphasis in original)

(quoting Nev. Rev. Stat. § 533.210(1)). The County has not

pointed to any statute, rule, or case law authorizing such a

challenge more than 80 years after a decree has become final

and conclusive. Because allowing such challenges after so

much time has elapsed would plainly undermine the “finality

in water rights” that Nevada’s water statutes deem important,

see id. at 429–30, the County’s failure to act sooner is

dispositive. We therefore hold that the challenge is untimely.

B. Remedies That Do Not Involve a Reallocation of

Water Rights

We agree, however, with the County’s second

contention—that its public trust claimremains viable because

the County can seek remedies that would not involve a

reallocation of adjudicated water rights.

The County argues that “the public trust doctrine imposes

a continuing affirmative duty on the Decree Court to manage

the resource for the benefit of future generations using

remedies other than a reallocation of water rights, which is

not permitted.” Suppl. Br. of Appellants Mineral County &

Walker Lake Working Grp. at 6. Hence, according to the

County, this case “must be remanded to the district court to
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 19

determine: (1) . . . whether the continuing duty of the Decree

Court to maintain Walker Lake’s public trust uses and values

has been violated since the entry of the Decree; (2) if so, what

level of average annual minimum flows must reach the Lake;

and finally (3) what the proper remedy ought to be.” Id.

at 19. Proper remedies, the County tells us, could include:

(1) a change in how surplus waters are

managed in wet years and how flows outside

of the irrigation season are managed;

(2) mandating efficiency improvements with

a requirement that water saved thereby be

released to Walker Lake; (3) curtailment of

the most speculative junior rights on the

system; (4) a mandate that the State provide

both a plan for fulfilling its public trust duty

to Walker Lake and the funding necessary to

effectuate that plan; and/or (5) an order

requiring water rights holders to come up with

a plan to reduce consumptive water use in the

Basin as was done by the State Engineer in

Diamond Valley.

Id. at 15–16 (alterations omitted). The County maintains that

achieving sufficient inflows into Walker Lake “without a

reallocation of water rights” is a factual issue “for the Decree

Court to address on remand.” Id. at 25.

We are not persuaded by the Walker River Irrigation

District’s (“Irrigation District”) arguments that this issue does

not warrant a remand. First, we agree with the County that

the Nevada Supreme Court’s decision in Mineral County does

not foreclose the County from seeking remedies under the

public trust doctrine that do not require a reallocation of
20 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

adjudicated water rights. To be sure, the Nevada Supreme

Court assumed that affording effective relief to the County

would require a reallocation of such rights: “The Basin does

not appear able to meet the county’s needs without abrogating

the rights of more senior right holders. The county’s request

would therefore require reallocating water rights.” Mineral

County, 473 P.3d at 430 n.8. The court, however, did not

consider whether other remedies were viable. The court,

moreover, squarely held that “[t]he public trust doctrine

applies to rights already adjudicated and settled under the

doctrine of prior appropriation.” Id. at 425. Although the

court noted that the public trust doctrine “generally acts as a

restraint on the state in alienating public trust resources,” id.

at 423 (emphasis added), the court did not hold, as the

Irrigation District suggests, that the doctrine acts only “as a

restraint on alienation of a public resource.” Suppl. Br. of

Appellee Walker River Irrigation Dist. at 13.

Second, we are not persuaded by the Irrigation District’s

argument that the County’s argument is a new one and that,

“[a]fter over 25 years, Mineral County should not be allowed

to change its position.” Id. at 12. Although Mineral County’s

motion to intervene, filed in 1994, was granted in 2013, the

litigation remains at an early stage. The district court

dismissed the County’s amended complaint in intervention at

the pleading stage, under Rule 12, and the case has since been

on appeal. Furthermore, the County’s complaint is broad

enough to encompass the remedies it now seeks, and, even if

that were not the case, “[t]he liberal policies reflected in

Rules 15(a) and 15(b) permit the demand to be amended

either before or during trial.” 5 Arthur R. Miller et al.,

Federal Practice and Procedure § 1255 (3d ed. 2020). Under

Rule 54(c), moreover, “the district court may grant any relief

to which the evidence shows a party is entitled, even though
WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST. 21

that party has failed to request the appropriate remedy or

remedies in his pleading.” Id.

Third, we decline to address for the first time on appeal

the Irrigation District’s arguments that the County’s proposed

remedies “are either unnecessary, or clearly beyond the

power of the district court.” Suppl. Br. of Appellee Walker

River Irrigation Dist. at 14. To be sure, some of the

arguments the Irrigation District raises may have merit. The

Irrigation District plausibly argues, for example, that

“[c]urtailment of the ‘most speculative junior rights’ on the

system for the benefit of Walker Lake clearly would be a

direct reallocation of those junior water rights”—action that

the Nevada Supreme Court’s decision forecloses. Id. at 15. 

But these arguments have not been developed, passed on by

the district court, or briefed on appeal. We therefore leave

them for the district court to address, in the first instance, on

remand.

V. CONCLUSION

The district court properly dismissed Mineral County’s

public trust claim to the extent it seeks a reallocation of water

rights adjudicated under the Decree and settled under the

doctrine of prior appropriation. The County, however, may

pursue its public trust claim to the extent that the County

seeks remedies that would not involve a reallocation of such

rights. The judgment of the district court, therefore, is

affirmed in part and vacated in part, and the case is remanded

for proceedings consistent with this opinion.
22 WALKER LAKE WORKING GRP. V. WALKER RIVER IRRIGATION DIST.

Each party shall bear its own costs on appeal.

AFFIRMED in part; VACATED in part; and

REMANDED.