FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff
,

WAL K E R RI VE R P A I U T E T R

I B E , Intervenor-Plaintiff

,
and

WAL K E R L AK E W O R K I N G G RO U

P , Defendant-Appellant
,

M I NE R AL C O U N T Y , Intervenor-Plaintiff-Appellant
,

v

.

WAL K E R RI VE R I R

R I G AT I ON D I S T R I C T ; N EV

AD A D E P AR

T ME N T O F W I L D L I F E ; F E

N I L I F A MI LY T R

U S T , c/o Peter Fenili and Veronica Fenili, Trustees; S I X N R

A N C H , I N C

. , c/o Richard and Cynthia Nuti; M I C HAE L N U T I ; N A

N C Y N U T I ; R

AL P H E. N U T I ; M AR Y E. N U T I ; L AW

R E N C E M. N U T I ; L E S L I E N UT I ; M I C A F AR M S , LLC, c/o Mike Faretto; J O H

N A ND L UR A W EA VE R F A M I LY T R

U S T , c/o Lura W eaver, Trustee; S M I T H V AL L EY G AR A G E , I N C ., c/o Dan Sm ith and No. 15-16342

D.C. No. 3:73-cv-0128- MMD

OPINION2 W A L K E R L A K E W O R K I N G G R P

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Shawna Sm ith; D ON AL D G I O RGI ; L O R I E M C M AH ON ; M E R

L E M C M AH ON ; C E

N T E N NI AL L I VE S T O C K ; L Y ON C O U N T Y ; A N N E T T ’ S M O

N O V I L LA G E ; F.I.M. C O R P O R A T I ON ; R.N. F UL S T ONE C O MP A N Y ; J AME S T. F O U S E K

I S , Trustee; C H R

I S H. G A

N S B E RG , J R .; F A Y E E

. G A

N S B E RG ; T O D D G A N S B E RG ; H U

N E WI L L L A

ND & L I VE S T O C K C O ., I N C .; D A V I D S C E I R I N E ; P A ME LA H A

A S ; V I R G I NI A L AK E M U TU AL WA T E R C O MP A

N Y ; M ON O C O U

N T Y , County Counsel, Defendants-Appellees.

Appeal from

the United States District Court for the District of Nevada Miranda M. Du, * District Judge, Presiding

Argued and Subm itted August 30, 2017 Subm ission W ithdrawn May 2, 2018 Resubm itted January 21, 2021 Pasadena, California

Filed January 28, 2021

* This case was reassigned to Judge Du from Judge Ro b e rt C l ive Jones on July 19, 2018.3

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Before: A. W allace Tashim a, Susan P. Graber, * * and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Tashim a

S UMMARY * * *

Water Rights

The panel affirm ed in part, and vacated in part, the district court’s d is m issal of Mineral County’s com plaint that intervened in longstan d in g litig atio n o v er the appropriation o f W alker River Basin waters.

In 1936, the U.S. District Court for the District o f Nevada entered the W alker River Decree, adj u d icating and settling water rights within the W alker River Basin under the doctrine of prior appropriation. The Coun t y intervened, and alleged that the p ublic interest and ma i nt e n ance of the public trust required that water f

lows be allowed to reach W alker Lake to sustain the fish p opulation and preserve recreational values for the County residents. A fter the d istrict court d is m issed the County’s com

plaint and the County appeale d, the panel certified questions to the Nevada Suprem e Court, which held

** Judge Raym ond C. Fisher was a m em ber o f the panel that certified questions t o the Nevada Suprem e Court. Judge F isher has since died and Judge Graber w a s ra ndom l y drawn to replace him

. See Ninth Cir. Gen Order 3.2(h).

*** This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.4 W A L K E R L A K E W O R K I N G G R P

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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 d oes not perm it reallocating water ri g hts already adjudicated and settled under the doctrine of prio r adjudication.” Mineral County v. Lyon County
, 473 P.3d 418, 425, 430 (Nev. 2 020) (en banc).

In light of the Nevada Suprem e Court’s decisio n , t he panel h eld that the district court p roperly dism issed the Co u n ty’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. Th e panel vacated the judgm ent of the district court and rem anded with instruction t o consider the County’s public trust doctrine claim to the extent it sought rem edies that would not involve

a reallocation o f adjudicated water rights. T h e p anel

rem anded to the district court to consider in the first instance the County’s argum ents that were not p roperly addressed by the d istrict court. Th e p a n el rejected as untim ely the County’s challenge to the 1936 Decree itself.

C OUNSEL

Sim eon M. Herskovits (argued) and Iris Thornton, Advocates for Comm

unity & E nvironm ent, El Prado, New Mexico; and S ean A

. R o w e, Min eral C o unty D istrict A tto rney, Hawthorne, Ne vada; for Plaintiff-Intervenor-Appellant Mineral County
, Nevada, and Defendant-App e llant W alker Lake W orking Group.5

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Gordon H. DePaoli (argued) and Dale E

. Ferguson, W oodburn and W edge, Reno, Nevada, for DefendantAppellee W alker River Irrigation District.

Roderick E. W alston (argued), and St ev e n G. Martin, Best Best & Krieger LLP, W alnut C reek, Califo rn ia; Stephen B. Rye, D istrict Attorney, Lyon County, Yerington, Nevada; Jerry M. Snyder, Reno, Nevada; Therese A. Ure, S chro eder Law Offices P.C., Reno, Nevada; Stacey Sim on, C ounty Counsel; Stephen M. Kerins, Deputy C ounty Counsel; Jason Canger, Assistant Co u n ty Counsel; Office of the C ounty Counsel, County of Mono, Mamm oth Lakes, California; for Defendants-Appellees Lyon C ounty, C entennial L ivestock, Mono County, and the Schroeder Group.

Bryan L

. Stockton (argued), S e n i o r D ep uty A tto r n ey G e n eral; Tori N. Sundheim
, Deputy Attorney G eneral; Aaron D. Ford, Attorney General; Attorney General’s Office, Carson City, Nevada; for Defendant-Appellee Nevada Departm ent o f W ildlife.

Robert W

. Byrne, Senior Assistant A ttorney General; R andy L. Barrow, Supervising Deputy Attorney General; D ebor a h Barnes and Tara L. Muel l e r, Deputy Attorneys G eneral; Attorney General’s Office, Oakland, California; for Am icus Curiae State of California.

John Echeverria, Verm ont Law School, South Royalton, Verm ont, for Am ici Curiae Natural Re s o u rces Defense Council and Sierra Club.

David R. Owen, P rofessor of Law, UC Hastings College o f Law, San Francisco, California; Richard M. Frank, Professor6 W A L K E R L A K E W O R K I N G G R P

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of Environm ental Practice, UC Davis School of Law, Davis, California; for Am ici Curiae Law Professors.

W es W illiam s, Law Offices of W es W illiam s Jr. P.C., Schurz, Nevada, f

or Am icus Curiae W alker River Paiut e Tribe.

OPINION
TASHIMA, Circuit Judge:

In 1 936, the United States Dist ri c t Co urt for the District of Nevada entered the W alker River Decree (“Decree”), adjudicatin g and settling water rights within the W alker River Bas in u nder the doctrine of prior appropriation. In the ensuing de cades, these w ater allocations have adversely affected W alker La k e , the term inus of the Basin’s water flows. The lake has lost m ore than half of its surface area and volum e, and the lake’s o nce-vibrant fishing and recreational activities—the lifeblood of Miner a l County’s economy and

a significa nt source o f County revenues—have been threatened. To address these effects, Mineral County (the “County”) intervened in longstanding litigation ove r the Ba s in ’ s waters, alleging that “[t]he public interest and

m aintenance of the publ i c t rust require[s] that the flows be allowed to reach W alker Lake that will sust a i n m inimum levels for the n aturally occurring fish population and provide for the preservation of Wa l k e r L ake f or the citizens and residents of the County for recreational values, preservation of wildlife, and m aintenance of the economy o f M i neral County.”7

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After the district court d ism issed the County’s com plaint and the County appealed, w e certified questions to the Nevada Suprem e Court, see Mineral County v. Walker River Irrigation Dist.
, 900 F.3d 1027, 1034 (9th Cir. 2018), which the state court has now answered, hold ing that Nevada’s “public trust doctrine appli e s to rights already adjudicated and settled under the doctrine of prior appropriation,” b ut that “t h e p ublic trust doctrine does n ot perm it reallocating water

r i ghts already adjudicated and settled under the doctrine of prior appropriation.” Mineral Count y v. L yon County
, 473 P.3d 418, 425, 430 (Nev. 2020) (en banc).

In light of the Nevada Supr em e Court’s decision, we vacate the judgm ent o f the district court and rem a n d wi th instructions to consider the Coun t y ’s public trust doctrine claim to the extent it seeks rem edies that would no t i n volve

a reallocation of adjudicated w ater rights. W e also reject as untim ely the County’s challenge to the 1936 Decree itself.

I. BACKGROUND

W e summ arize d t h e background of this litigation in our August 2018 certification order:

A. The Walker River Ba sin and Walker Lake’s Decline

The W alker River Ba sin covers about 4000 square m iles, running northeast from its origins in t h e Sierra Nevada Mountains in California before turning south and ultim ately flowing into W alker Lake in Ne v ada. The first quarter of the basin lies in California, and California accounts for a m ajo r i t y of the8 W A L K E R L A K E W O R K I N G G R P

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pre c i pitation and surface water flow into the basin. The vast m ajority of the water is

consum ed across the border in Nevada.

W alker Lake is abo u t 1 3 m iles long, five

m iles wide and 90 feet deep—a large lake by

m ost any m easure. But its size and volum e have shrunk significantly since they were first

m easured in 1882. B y 1996, W alker Lake h ad retained just 50 percent of its 1882 surface

area and 28 pe r c e n t of its 1882 volum e. Toda y ’ s W alker Lake also suffers from high concentrations of t o tal d issolved solids (“TDS”)—m eaning it has a high salt content, low oxygen content and a high temperature.

Th e s e c o n d it i o n s h ave dras t i c a ll y degraded the lake’s environm ental and

econom ic well-bein g

. The high TDS concentrations h ave proven so inhospitable to fish species t h at, according to Mineral County, m

uch of the la ke’s fishing industry

“ ha s been elim inated for the tim e being.” W alker Lake’s decline also threatens its status

as an im portant shelter for m igratory birds, and it has “drive[n] away the m any Nevadans

a nd other Am ericans who used W alker La k e for recreational enjoym ent and econom ically producti v e activities.” A lthough the parties dispute the cause of W alker L ake’s troubles, it seem s clear that upstream appropriations pl a y at least som e part, together with declining precipitation levels and natural lake recession over tim e.9

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B. Litigation Over Water Rights in the Basin

In an effort to p rotect and rehabilitate W a lker Lake, Mineral County intervened in th e long-running litigation over water rig ht s in the W alker River Basin. That litigation began in 1902, when one cattle and land co mpany sued another in the United St a t e s District Court for the Distr ict of Nevada over appropriations from the W alker River. After considerable back and forth i n state and federal court—including a Suprem e Court decision holding that the N evada federal court had prior, exclusive ju r i sdiction over the action, see R ickey Land & C attle Co. v. Miller & Lux
, 218 U .S. 25 8
, 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 W alker Lake Paiute Tr ibe. After 12 m ore years o f l i t i g a t i o n

—b r i n g i n g u s t o 1 9 3 6

— t h a t proceeding resulted in the W alker Ri ver D e c r e e

. T h e Wa l k e r R i v e r D e c r e e adjudicated the water rights of hundreds o f claim ants under th e doctrine o f prior appropriation. [ 1 ] The Decree also created the

1 “Li ke m ost western states, Nevada is a prior appropriation state. The prior appropriation doctrine grants ‘[a]n appropriat i v e r i g ht [ t h at] m ay be described as a state adm inistrative grant that allows the use of a specific quantity of water for a specific beneficial purpose if water is available in10 W A L K E R L A K E W O R K I N G G R P

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W alker River Commi s sion and the United States Bo a rd of W ater Comm issioners. The fe d e r a l d i s t r i c t c o u rt i n Ne v a d a ha s
m aintained jurisdiction over the Decree and its adm inistration ever since.

In 1987, the Paiute Tribe intervened in the W a l k e r R i v e r l i t i g a t i o n t o e s t a b l i s h procedures f

or reallocating water rights under the Decree. Since that proceeding’s conclusion in 1988, the Ne v a da State Engineer reviews all applications to change alloca tions under the Decree in Nevada,

sub j e ct to review by the Nevada federal district court. It appears that Ne v a d a ’s prior appropriation law, which has largely been

co d if ied
, g o v ern s th e E n g ineer’s d ecisio n s an d the district court’s review. See, e.g. , Nev. Rev. Stat. § 533.3 7 0; see a lso Greg W alch, Water Law: 9 Treading Water Law—A Nevada Water R ights Primer , 6 Nev. L aw. 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 ad ditional am ount of water from t he W alker River, under a principle th at Native Am erican tribes have sup erior water rights based on their relationship to the federal governm ent . . . .

the source free from the claim s o f others with earlier appropri a t i o n s .’” 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 )).11

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C. Mineral County’s Intervention

In 1994, Mineral County m oved to intervene in the Decree litigation. The district court granted the m o tion i n 2013. The

am ended com

plaint in interv ention alleges that “[a]ctivities and businesses attributable to the pres e nce and use of W alker Lake represent[ ] approxim ately 5 0% of the

economy of Mineral County.” The com plaint asks the Decre e c ourt, “pursuant to its continuing jurisdiction un der

. . . the

. . . Decree, [to] reope n and m odify the final Decree to recognize th e rights of Mineral Coun t y

. . . and the public to have m inimum levels [of water] to m aintai n t h e viability o f W alker Lake.” Mineral County seeks recognition “ that a m inim um of 127,000 acre/feet [of water] per year to W alker Lake is

. . . re qu i red under the doctrine o f

m aintenance of the public trust.” [ 2 ]

The W orking Group—already a party to this liti g a t ion as a right-holder under the Decree—suppo rts Mineral County’s position.

2 Th e Nevada Suprem e Court expressly adopted the public trust doctrine i n L awrence v. Clark County
, 254 P.3d 606, 607 (Nev. 2011) (en ba n c ). “The public trust doctrine establishes that the state h olds its navigable waterways and lands thereu n d er i n trust for t he public.” Mineral County
, 4 7 3 P.3d at 4 23. In Mineral County
, the Nevada Supre m e C o urt clarified that the “ doctrine applies to rights already adjudicated and settled under the doctrine of prior appropriation” and “to all waters w ithin the state, whether navigable or nonnavigable.” Id. at 4 2 5 (em phasis om itted).12 W A L K E R L A K E W O R K I N G G R P

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Because of the pos tu re of this case, the W orking Group i s considered a d efendant as to Mineral County’s intervention. But the W orking Group “always has supported efforts to transfer water rights for use in W alker Lake

. . . and has supported the enforcem ent of the public trust doctrine for this sam e purpose.”

In 2015, the district court dism iss e d the

am ended com

plaint in intervention. First, the district court held Mineral Co u nty lacked standing to assert its p ubli c trust claim

. It concluded Mineral County’s claim “was based p urely on a parens patria e theory” o f standing—i.e., that Mi n e ral County d id not assert any o f its own intere s ts, only those o f its citizens—and th at a county lacks the ability to sue as parens patriae.

Notwithstanding its con c lusion on standing, the district court also addressed the

m erits of Mineral County’s p ublic trust claim

. It concluded t h e public trust doctrine m ay factor intofuture allocations of water, but that using the doctrine to reallocate rights already ad ju d icated u

n d er the Decree would con stitu te

a taking and require just co mpensation. Inv o king the political question d octrine, the court concluded it lacked authority to ord er Nevada t o e ffectuate such a taking. The district court also held, without analysis, that Walker Lake is not part of the W alker River Basin under the Decree, and therefore that the13

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Decree prohibits allo c ating any water specifically to the lake.

M ineral County
, 9 0 0 F.3d at 1028–30 (9th Cir. 20 18 ) (am ended o rder) (som e alteration s i n original) (footnotes

om itted).

II. PROCEEDINGS ON APPEAL

The County tim ely appealed. W e issued a m em orandum disposition holding that the County h as sta n d i n g. 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 Suprem e Court:

[1] Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of pri o r appropriation and, if so, to what extent?

[2] If the public trus t doctrine applies and allows for reallocation of rights settled under the doctrine of prior ap p r opriation, does the abrogation of such adjudicat e d or vested rights constitute a “taking” under the Nevada Constitution requiring paym e n t of just

com pensation?

Mineral County
, 900 F .3d at 1034. In a re l ated appeal, we also h eld that W alker Lake is part of the W alker R iver Basin.14 W A L K E R L A K E W O R K I N G G R P

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United States v. U.S. Bd. o f Water Comm’rs
, 893 F.3d 578, 606 (9th Cir. 2018). 3

The Nevada Suprem e Court accepted ce rtification, rephrased the first question to ask whether “the public trust doctrine perm it[s] reallocating rights already adjudicated and settled under the d octrine of prior appropriation,” and answered the qu e stion in the negative. Mineral County
, 473 P.3d at 4 21. The co urt 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 right s” and satisfy the three-part test described in Lawrence for determ ining wheth e r the alienati o n o f public trust property is valid. Id. at 426–27 (em phasis om itted) (citing Lawrence
, 254 P.3d at 616). N ext, the court held that “[t]he state’s water statutes recognize the im portance o f finalit y i n wa ter rights and therefore do not perm it reallocation of adjudicated water righ t s

. ” Id. at 429 (em phasis om itted). The court therefore held that “the public trust doctri ne does not perm it reallocating water rights

a l r e ady adjudicated and settled under the doctrine of pr i o r appropriation.” Id. at 430. The court explained:

W e recognize the tragic decline of W alker Lake. But wh ile we are sym pathetic to the plight of W alker L ake and the re s u l ting negative im

p acts on th e wildlife, resources, and econom

y in Mineral C ount y , 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 W alker 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).15

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an entire w ater system , p articularly where finality is firm ly rooted in o u r statutes. W e cannot read into the statute s any authority to perm it reall o c ation when the Legislature has already declared that adjudicated water rights

are final, nor can we substitute our own policy judgm ents for the Legislature’s.

Id. (footnote om itted).

III. STANDARD OF REVIEW

W e review de n o vo a dism issal 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 fa v or of the nonm o ving party. Oki Semiconductor Co. v. Wells F argo B a nk, N.A.
, 298 F.3d 768, 772 (9th Cir. 2002).

IV. DISCUSSION

To the extent that Mineral C o unty seeks a reallocation o f

w ater rig hts already adjudicated and settled un d er th e d o ctrin e of prior appropriation, the parties ag r e e that the County’s claim is foreclosed by the Nevada Suprem e Court’s d ecision. Insofar as the County seeks a reallocation o f water rights, it appears that “the v oluntary sale and purchase of water rights is the o nly available m eans to accomm odate the n e ed s o f current water right holders and to restore W alker Lake under16 W A L K E R L A K E W O R K I N G G R P

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t he Decree.” Suppl. Br. o f Appellee Nev. Dep’t of W ildlife at 4. 4

The County insists, however, that this is not the end o f the

case. The County identifies two legal t h e o ries that it says would not require a reallocation of adjudicated water rights. Because the Nevada Suprem e Court did not address, let alone foreclose, these theories, the County m aintains that we shou ld vacate the judgm ent and rem and for furth e r p r oceedings 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 argum ent that w e should

rem and for further proceedings on its claim that the 1936 Decree itself violates the public trust doctrine. The Coun t y points out, correctly, that t h e water rights at issue here were adjudicated in 1936, long before the Nevada Suprem e Court, in its 2011 Lawrence decision, first articulated its three-part test for determ ining whether the alienation of public trust waters satisfies the p ublic trust d octrine. 5 Thus, in the

4 Such efforts m ay have already achieved som e success. According to the County, a “substantial portion of the necessary inflows t o W alker Lake already is being provided for b y t he W alker Basin Conservancy’s water rights acquisition program , which involves the purchase o f W alker Riv e r w a t e r rights on the open m arket and transfer of t hose rights to instream flow use in o rder t o benefit W al k e r La k e

. ” Suppl. Br. o f Appellants Mineral County & W alker Lake W orking Grp. at 23.

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

. . . , c o urts o f this state m ust consider (1) whether the dispensation was m ade for a p ublic purpose, (2) whether the state received fair consideration in exchange for the d i s p e n sation, and (3) whether the dispensation satisfies ‘the state’s special obligation to m a intain the trust17

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Co u nty’s view, no court h as ever d eterm ined whether t h e dispensation of state waters under the 1 936 Decree com ports with the public trust doctrine, and i t is an open question “whether adequate consideration o f the public trust occurred in the individual allocative decisions of the W alker River Decree.” Suppl. Br. o f Appellants Mineral County & W alker Lake W orking Grp. at 14. Consequently, the County argues that this “case m

ust be rem anded to th e district court to determ ine

. . . wh et h er t he 1936 D ecree, which m erely confirm ed p re-statutory prior appropriative righ t s, violated the public trust doc tr i n e by over-allocating the basin and failing to consider the doctrine.” Id. at 19.

Whatever m erit there m ay be to this novel contention, we
are not persuaded that the c la i m i s tim ely. In Mineral County , the Nevada Suprem e Court noted that challenges to

a judicial decree adj u d i c ating water rights m ust be brought within three years:

As p art of Nevada’s com prehensive water statutes, which we conclude adher e t o the public trust doctrine, the Legislature enacted NRS 533.185 to e stablish a judicial decree regarding a water right perm it. Re garding those judicial decrees, NRS 533.210(1) provides that:

The decree entered b y the court, as provided by N RS 533.185
, shall be final and shall be conclusive upon all

for the use and enjoym ent of present and future generations.’” Lawrence
, 254 P.3d at 616 (quoting A rizona Ctr. for Law v. Hassell , 837 P.2d 158, 170 (Ariz. Ct. App. 1991)).18 W A L K E R L A K E W O R K I N G G R P

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persons and rights lawfully em braced within the adj u d i cation; but the State Engineer or any party or adjudicat e d claim ant u

pon any stream or st r e a m sys t e m affected b y such decree m ay, at any tim e within 3 ye a r s from the entry thereof, app l y t o the court for a
m odification of the decree . . . .

Minera l County
, 473 P.3d at 429 (em phasis in o riginal) (quoting N ev. Rev. Stat. § 533.210(1)). The County has not pointed to any statute, rule
, o r c a se law authorizing such a challenge m o re than 80 y ears after a decree h as becom e final and conclusive

. Be cause allowing such challenges after so
m uch tim e has elapsed would plainly underm ine the “finality in water rights” that Nevada’s water statutes deem im portant,

s ee id. at 4 29–30, the County’s failure to act soo n e r is dispositive. W e therefore hold that the challenge is untim ely.

B. Remedies That Do Not Involve a Reallocation o f Water Rights

W e agree, h o wever, w ith the County’s second contention—that its pu

b lic trust claim rem ains viable because the C ounty can seek rem edies that would n o t i n v o lve a reallocation of adjudicated water rights.

The County argues that “the p ublic trust doctrine im poses
a continuing affirm ative d uty on the Decree Court to m anage the resource for the benefit of future generations using

rem edies other tha n a reallocation of water rights, which is not perm itted.” Suppl. Br. of Appellants Mineral County & W alker L ake W orking G rp. at 6. Hence, acco rd i n g to the County, this case “m

u st be rem anded to the distr i c t court to19

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determ ine: (1)

. . . whether the continuing duty of the Decree Court to m aintain W alker Lake’s public trust uses and values has b een violated since the entry of the Decree; (2) if so, what level of average annual m inimum flows m ust reach the Lake; and finally (3) what the proper r e m e d y ought to be.” Id. at 19. Proper rem edies, the County tells us, could include:

( 1) a change in h ow surplus waters are
m anaged in wet years and how flows outside of the irrigation season are m anaged; (2) m andating efficiency i mp rovem ents with

a requirem ent that water saved thereby be released to W alk e r Lake; (3) curtailm ent o f the m ost speculative junior rights on the system ; (4) a m andate that the Sta t e provide both a plan for fulfilling its publi c t rust duty to W alker Lake and the f unding ne cessary to effectuate that plan; and/or (5) an orde r requiring water rights holders to com e u p with

a p lan to reduce consum

ptive water use in the Basin as was d one by the State Engineer in Diam ond Valley.

Id. at 15–16 (alterations om itted). The County m aintains that achieving sufficient inflows into W alker Lake “without a reallocation of water rights” is a factual issue “for the Decree Court to address on rem and.” Id. at 25.

W e are not persuaded by the W alker Ri ver Irrigation D istrict’s (“Irrigation District”) argum ents that this issu e d o e s not warrant a rem and. First, we agree with the County t hat th e N evada Suprem e C ourt’s decision in Min era l C o u n ty d o e s not foreclose the C ounty from seek ing rem edies under the public trust doctrine that do not requ ire a reallocation o f20 W A L K E R L A K E W O R K I N G G R P

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adjudicated water rights

. To be sure, the Nevada Suprem e Court assum ed that affording effective relief to the C ounty would require a reallocation of such rights: “The Basin does not appear able to m eet the county’s needs without abrogating the rights of m ore senior right holders. The county’s request would therefore require real lo c ating w ater rights.” Mineral County
, 473 P.3d at 430 n.8. The co u rt , however, did not consider whether other rem edies were viable. The court,

m oreover, squarely held that “[t]he publ i c t rust doctrine appl i e s t o rights already adjudicated and settled under the doctrine of prior appropriation.” Id. a t 425. Although the court noted that the p ublic trust doctrine “generally acts as a restraint on the state in alienating public trust resources,” id. at 423 (em

phasis a d ded), the court did not hold, as the Irrigation D istrict suggests, t h at the d octrine acts only “as a restraint on a l ienation of a p ublic resource.” Suppl. Br. o f Appellee W alker River Irrigation Dist. at 13.

Second, we are not persuaded by the Irrigation D istrict’s

ar g u m ent that the County’s argum ent 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

m otion to intervene, f

iled in 1994, wa s g r a nted in 2013, the litigation re m ains at an early stage. The district court dism issed the C ounty’s am ended com plaint in intervention at the pleading stage, under R ule 1 2, and the case has since been

on appeal. Furtherm ore, the County’s com plaint is broad enough to encom

pass the rem edies it now seeks, and, even if that were not the case, “[t]he liberal p o l i c ies reflected in Rules 15(a) and 15(b) permi t the dem and to be am ended either before or during trial.” 5 Arthur R. Miller et a l., Federal Practice and Procedure § 1255 (3d ed. 2020). Under Rule 54(c), m oreover, “the d istrict court m ay grant any relief to which the evidence shows a party is entitled, even though21

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that party has failed to request the app r o priate rem edy o r
rem edies in his pleading.” Id.

Third, we decline to address fo r th e first tim e on appeal the Irrigation District’s argum ents that the County’s p ro p o sed

rem edies “are either unnecessary, or clearly bey o n d the power of the distr i c t c ourt.” Suppl. Br. of Appellee W alker River Irrigation Dist. at 14. To be sure, som e of the argum ents the Irrigation District raises m ay have m erit. The Irrigation D istrict plausibly arg ues, for exam ple, that “[c]urtailm ent of the ‘ m ost speculative junior rights’ on the system for the benefi t of W alker Lake clearly would be a direct reallocation of those junior water rights”—action that the Nevada S uprem e Court’s decision f or e c l o ses. Id. at 15. But these argum ents have not b een developed, passed on by the district c ou rt, or briefed on appeal. W e therefore leave them f or the district court to address, in the first instance, on
rem and.

V. CONCLUSION

The district c o urt properly dism issed Mineral County’s public trust claim to the extent it seeks a reallocation of water rights adjudi c at e d under the Decree and settled under the doctrine of prior appropriation. The County, howe ver, m ay pursue its public trust cl a i m t o the extent that the C ounty seeks rem edies that would not involve a reallocation of such rights. The judgm ent of the district court, t h e r e fore, is affirm ed in part and vacated in part, and the case is rem anded for proceedings consistent with this opinion.22 W A L K E R L A K E W O R K I N G G R P

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Each party shall bear its own costs on appeal.

AFFIRMED in part; VACATED in part; and REMANDED.