Jump to Navigation
Jump to Content

State v. Morros

Citation: 19 ELR 20686
No. No. 18105, 766 P.2d 263/(Nev., 12/21/1988)

The Nevada Supreme Court rules that Nevada law does not require a diversion of water for a valid appropriation, and holds that the Bureau of Land Management (BLM) and the United States Forest Service may obtain water rights for stock and wildlife watering on federal public lands even though they own no livestock or wildlife. The Nevada State Engineer had granted the BLM's and Forest Service's applications for appropriative water rights for stock watering, wildlife watering, and recreation purposes; the appropriation was challenged by the State Board of Agriculture. The court first rules that a physical diversion of water is not necessary for a valid appropriation, and thus holds that the State Engineer's approval of the BLM's application for water rights in a lake for public recreation and fishery purposes was proper. Nevada water rights are governed by statute, and the statute requires only that the water be put to a beneficial use. The only case cited by the Board of Agriculture involved an appropriation that occurred prior to the enactment of Nevada's statutory water law, and thus is not good authority. Later cases from this court indicate that beneficial use is the only indispensable requirement for an appropriation. A provision enacted in 1969 specifically recognizes recreation as a beneficial use of water, and many water-related recreational activities are incompatible [19 ELR 20687] with physical diversions that would remove the water from its source. The court also holds that the State Engineer's approval of the BLM's application was not against the public interest.

The court holds that water for livestock and wildlife is a beneficial use and that the federal government may appropriate water for beneficial uses on the public lands. The proposed uses will permit better use of areas on public lands where grazing is limited by the lack of water. Although the United States does not own the livestock or wildlife to be served by the water, it owns the land on which the water is to be put to beneficial use and acts in its proprietary capacity as a landowner when federal agencies seek to appropriate water under state law for livestock and wildlife watering. Under Nevada law, the United States is also a "person" for purposes of water appropriation.

[Briefs from this litigation are digested at ELR PEND. LIT. 65993.]

Counsel for Appellants
Brian McKay, Attorney General; Harry W. Swainston, Deputy Attorney General
Capitol Complex, 1802 N. Carson St., Ste. 252, Carson City NV 89710
(702) 885-5866

Counsel for Respondents
Jacques B. Gelin, Andrew F. Walch, Robert L. Klarquist
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2731

Christopher H. Meyer
National Wildlife Federation
Rocky Mountain Natural Resources Clinic, Box 401, Fleming Law Bldg., Boulder CO 80309
(303) 492-6552

Laurens H. Silver
Sierra Club Legal Defense Fund
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100