423, 424-25 (1993), this court recognized that a district court order 

remanding a decision to an administrative agency without finally 

resolving the substantive issues before the court was not reviewable on 

appeal as a final judgment. See also Clark Cnty. Liquor & Gaming 

Licensing Bd. v. Clark, 102 Nev. 654, 658, 730 P.2d 443, 446 (1986) 

(concluding that this court lacked jurisdiction to consider an appeal from a 

district court order remanding a matter to the administrative agency to 

conduct discovery). 

Here, the order issued by appellant/cross-respondent Jason 

King, the Nevada State Engineer, concluded that it would be "premature 

to attempt to set quantitative standards or triggers for mitigation actions 

in the Management Plan at this time," while also referencing statements 

from two witnesses indicating that the need for mitigation should be 

assessed on a case-by-case or site-by-site basis, Although the district court 

acknowledged King's conclusions in this regard, it further noted that King 

had also asserted that appellant/cross-respondent the Southern Nevada 

Water Authority had presented a great deal of data that provided a basis 

for making sound decisions on the mitigation issue. As a result, the 

district court found that, if King "has enough data to make informed 

decisions, setting standards and 'triggers' is not premature." The court 

further found, as a corollary, that if King did not have enough data to set 

mitigation standards, then granting the appropriation was premature. 

Thus, because King's order declined to set objective standards regarding 

when mitigation would be required, the district court concluded that that 

order was incomplete and remanded the matter for resolution of this 

significant issue. 

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J. 

Parraguirre 

Gibbons 

Insofar as the district court remanded this matter for the 

State Engineer to resolve a substantive issue, we conclude that the district 

court's order of remand was not an appealable, final judgment. See 

Greenspun, 109 Nev. at 1025, 862 P.2d at 424-25; Clark, 102 Nev. at 658, 

730 P.2d at 446. Moreover, as no statute or court rule otherwise provides 

for an appeal from a district court order such as the one at issue here, see 

NRAP 3A(b) (listing orders and judgments from which an appeal may be 

taken); Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 

P.2d 1152, 1153 (1984) (noting that this court has jurisdiction to consider 

an appeal only when the appeal is authorized by statute or court rule); see 

also Clark, 102 Nev. at 658, 730 P.2d at 446, we lack jurisdiction to 

consider this appeal, and therefore order the appeal dismissed. 

It is so ORDERED. 

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PICKERING, J., dissenting: 

The majority concludes that we lack jurisdiction because the 

district court's order was not a final, appealable judgment. But the order, 

taken together with the State Engineer's findings, demonstrates that the 

district court's decision was substantively final as to the core issue 

presented: Does substantial evidence support the State Engineer's 

decision to grant Southern Nevada Water Authority's (SNWA) 

applications under NRS 533.370? The district court found in the negative 

on that issue and its finding depends on its legal determination as to the 

underlying law. 

The district court's order may on its surface indicate that the 

district court remanded the matter for the State Engineer to consider 

evidence it failed to consider, rendering the order not "final." See State 

Taxicab Auth. v. Greenspun, 109 Nev. 1022, 1024, 862 P.2d 423, 424 

(1993) (order reversing agency's decision and remanding for the agency to 

consider evidence it wrongfully refused to consider was not a final 

judgment). On the last page of the order, the district court stated it would 

not disturb the State Engineer's findings "save those findings that are the 

subject of this Order," and "remanded" for the State Engineer to complete 

four tasks: 

1. The addition of Millard and Juab counties, 

Utah in the mitigation plan so far as water 

basins in Utah are affected by pumping of 

water from Spring Valley Basin, Nevada; 

2. A recalculation of water available for 

appropriation from Spring Valley assuring that 

the basin will reach equilibrium between 

discharge and recharge in a reasonable time; 

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3. Define standards, thresholds or triggers so that 

mitigation of unreasonable effects from 

pumping of water are neither arbitrary nor 

capricious in Spring Valley, Cave Valley, Dry 

Lake Valley and Delamar Valley, and; 

4. Recalculate the appropriations from Cave 

Valley, Dry Lake and Delamar Valley to avoid 

overappropriations or conflicts with downgradient, existing water rights. 

The majority focuses upon the third directive—that the State Engineer 

must set objective standards, thresholds or triggers for when mitigation 

must occur, and holds that this substantive matter was therefore 

remanded to the State Engineer to resolve. Majority at 2. 

As to this third directive, the State Engineer expressly found 

that he did not have sufficient evidence to achieve it at the time he 

granted the applications; rather, the State Engineer instead required 

SNWA to conduct staged pumping, which he reasoned would allow the 

interested parties to develop the specifics of any mitigation that may be 

required to counteract any effects that are environmentally unsound or 

that would conflict with existing rights under NRS 533.370(2). And, as 

the majority recognizes, the district court found that if the State Engineer 

"did not have enough data to set mitigation standards, then granting the 

appropriation was premature." Majority at 2. It was because of the 

prematurity of this grant that the district court also stated that "this 

matter must be remanded to the State Engineer until objective standards 

can be established and stated–as to when mitigation must occur." 

Therefore, the district court's order held, in effect, that based upon the 

evidence SNWA presented it, the State Engineer did not have sufficient 

evidence to grant the applications. The district court's instructions as to 

how the State Engineer might attempt to make up this factual 

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insufficiency, or to allow the State Engineer to somehow hold the 

applications until such evidence materialized, does not change the holding 

that at the time the State Engineer made his decision it was not, in the 

district court's view, supported by substantial, legally sufficient evidence. 

As to the second instruction, the district court's express 

holding that substantial evidence did not support the State Engineer's 

finding that SNWA's Spring Valley appropriations were not against the 

public interest effectively decided the issue: under NRS 533.370(2), the 

State Engineer shall reject an application where "its proposed use or 

change . . . threatens to prove detrimental to the public interest." 

Notwithstanding the district court's attempt to remedy the situation by 

ordering a remand for the State Engineer to recalculate the water 

available in Spring Valley and to ensure that SNWA's Spring Valley 

award is consistent with that availability, the district court's holding on 

the matter necessarily answered, in the negative, the substantive question 

of whether substantial evidence supported the State Engineer's decision to 

grant SNWA's Spring Valley appropriation applications. 

As to the district court's fourth instruction that the State 

Engineer recalculate SNWA's appropriations from Cave Valley, Dry Lake, 

and Delamar Valley to avoid overappropriations or conflicts with existing 

water rights, inherent in this instruction, as well as the part of the order 

that analyzed the issue, is the district court's determination that the State 

Engineer's decision that SNWA's appropriations would not cause 

overappropriation or conflict with existing rights was not supported by 

substantial evidence. In other words, if the district court found that a 

lesser appropriation to SNWA in these valleys is necessary to prevent 

overappropriation or a conflict with existing rights, then it also necessarily 

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found that the State Engineer was required to deny the applications. NRS 

533.370(2) (State Engineer shall deny applications "where there is no 

unappropriated water in the proposed source of supply, or where its 

proposed use or change conflicts with existing rights"). Finally, the 

remaining instruction, adding Millard County and Juab County to the 

mitigation plan, is a nonstarter issue if, as the district court found, the 

State Engineer's decision to grant SNWA's applications was not supported 

by sufficient evidence such as to comply with NRS 533.270. 

Thus, the district court reached the merits of the petition for 

review and made a legal ruling as to the propriety of the State Engineer's 

decision given the evidentiary record SNWA provided, which distinguishes 

this order from at least one of the cases the majority relies upon. See 

Greenspun, 109 Nev. at 1025, 862 P.2d at 425 (district court did not review 

the merits of the agency's decision).' That the district court attempted to 

provide instructions as to how the State Engineer may grant the 

applications if he were to issue a new decision regarding SNWA's 

applications does not change that the district court determined substantial 

evidence did not support the State Engineer's decision to grant the 

applications, and effectively reversed the State Engineer. We have 

reviewed similar decisions in the past, and thus they must have been final 

judgments. See Office of State Eng'r v. Morris, 107 Nev. 699, 701, 819 P.2d 

203, 204 (1991) (reviewing district court's decision that reversed the State 

1Clark County Liquor and Gaming Licensing Board v. Clark 

indicates only that the district court remanded the case and ordered the 

agency to grant discovery, and this court summarily stated that the order 

was not a final, appealable one. 102 Nev. 654, 658, 730 P.2d 443, 446 

(1986). Though presumably the district court did not reach the merits, it 

is not precisely clear. 

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Engineer's decision because the findings were clearly erroneous and an 

abuse of discretion); State v. Morros, 104 Nev. 709, 711, 766 P.2d 263, 265 

(1988) (reviewing district court's decision that partially affirmed and 

partially reversed the State Engineer's grant of various applications). 

Furthermore, other courts have recognized that a district 

court's order remanding to an agency must be considered practically when 

determining whether the order is final and therefore appealable. See, e.g., 

Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011). For 

example, an order of remand may be final where "(1) the district court 

conclusively resolves a separable legal issue, (2) the remand order forces 

the agency to apply a potentially erroneous rule which may result in a 

wasted proceeding, and (3) review would, as a practical matter, be 

foreclosed if an immediate appeal were unavailable." Id.; Edgewater 

Found. v. Thompson, 350 F.3d 694, 696 (7th Cir. 2003) ("Remands usually 

are not appealable, because they are not "final" decisions; but remands 

that otherwise may escape appellate review may be reviewable 

immediately."). 

All three of these considerations are present here. First, as 

explained above, the district court resolved the main legal issue 

underlying this appeal: whether the State Engineer may, consistent with 

NRS 533.370(2), leave the determination of how and when mitigation will 

occur for a future determination. Second, the appellants argue that the 

district court's rulings would force the State Engineer to make rulings 

under legal standards he considers erroneous. Finally, there is effectively 

no way for the State Engineer to ensure that the remand order and its 

legal rulings will ultimately be reviewed because it appears the State 

Engineer cannot appeal his own decision, unless he can fall within the 

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definition of a person aggrieved by his decision. NRS 533.450(1); see also 

Travis v. Sullivan, 985 F.2d 919, 923 (7th Cir. 1993) (finding order 

remanding to agency appealable because if the agency representative 

complied with the district court's order to conduct a new hearing and 

make new findings, the order would be effectively unreviewable; if the 

agency representative ultimately awarded the applicant benefits then the 

representative could not appeal his own decision, but if the representative 

denied the benefits the resulting appeal would concern the merits of the 

application's claim, effectively rendering the remand order moot and 

therefore unreviewable); Daviess Cnty. Hosp. v. Bowen, 811 F.2d 338, 342 

(7th Cir. 1987) (holding similarly). 

Applying a functional and practical view of finality, Bally's 

Grand Hotel & Casino v. Reeves, 112 Nev. 1487, 1488, 929 P.2d 936, 937 

(1996), I would find that the district court's order constituted a final, 

appealable decision on the merits. Thus, I respectfully dissent. 

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cc: Chief Judge, The Seventh Judicial District Court 

Hon. Robert E. Estes, Senior Judge 

Attorney General/Carson City 

Dana R. Walsh 

Lewis Roca Rothgerber LLP/Las Vegas 

Gregory J. Walch 

Taggart & Taggart, Ltd. 

Iris Thornton 

Simeon M. Herskovits 

Alexander, Berkey, Williams & Weathers LLP 

EchoHawk Law Offices 

Weinstein, Pinson & Riley 

J. Mark Ward 

Rhodes Law Office, Ltd. 

Lionel Sawyer & Collins/Las Vegas 

Kaempfer Crowell/Reno 

Attorney General/Reno 

White Pine County Clerk 

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