(Michael Schaus) – A small Hispanic church in rural Nevada won a major victory over the federal government Tuesday.
Six years ago the U.S. Government’s Fish & Wildlife Service illegally and deliberately diverted a spring-fed stream to which the Solid Rock Ministry in Nye County — in Spanish, Ministerio Roca Solida — had long-vested water rights.
That stream, since at least as early as the late 1800s, had traversed the private property the church had purchased years before and on which it had built its Little Patch of Heaven Church Camp.
But the federal land agency — ignoring not only the ministry’s vested water rights, the federal government’s own requirements for Clean Water Act permits, Federal Emergency Management Act requirements, and the Ministry’s religious use of the water for baptisms — essentially destroyed the church camp facility.
Because of the federal agency’s dangerously negligent construction of the diversion channel — never competently engineered to accommodate rain or runoff waters — “a mini-grand-canyon now cuts through what was once lush wetlands,” says Joseph Becker, director of NPRI’s Center for Justice and Constitutional Litigation.
That’s because the scofflaw water-diversion not only stripped the Ministry of its access to its “river baptism” waters. It also resulted in repeated flooding and serious erosion of the church property, carving away large swaths of the once pristine 40-acre property.
Such results had been warned about years ago by the Ministry’s expert hydrologist but the Fish and Wildlife Service never heeded the warnings.
Now, a ruling from America’s trial court for “takings” issues under the Fifth Amendment of the Bill of Rights has rejected arguments central to the federal government’s case.
In an opinion and order filed Tuesday, November 29, U.S. Court of Claims Judge Elaine D. Kaplan denied a U.S. government motion to dismiss the Ministry’s takings claims, stating that the government’s arguments for dismissal “lack merit.”
The U.S. government had previously argued that it bears no liability for the flooding and that the church had no rights to the water that had beneficially traversed its property for decades.
Recently, however, the Nevada Department of Water Resources verified that the Ministry did, in fact, have vested rights to the water.
Moreover, the state has ordered the Fish and Wildlife Service to return the water to its “historic path” traversing the church property within 90 days or face administrative fines of up to $10,000 per day until corrective action is taken.
“Judge Kaplan’s decision is a very large step forward for the Patch of Heaven Church Camp in what has now become a five-year-plus court battle between the church and the federal government,” said Becker, representing the Ministry.
While the order from state Department of Water Resources verifies the Institute’s claim that the Ministry’s vested water rights were violated, significant damage and constitutional violations continue to be suffered by the Ministry.
The United States must now file an Answer to the Ministry’s Complaint within 14 days.
Because the United States violated multiple constitutional rights in one fell swoop in August of 2010, the SOLID ROCK MINISTRY filed a Complaint for the tort and due process and free-exercise claims in the U.S. District Court for the District of Nevada. The Ministry also in 2012 filed a takings claim in the U.S. Court of Federal Claims — along with a motion to stay proceedings in that court pending the outcome of the injunctive relief sought in the District Court.
The UNITED STATES however, argued before the Court of Federal Claims that, pursuant to United States v. Tohono O’Odham Nation and that case’s re-interpretation of a longstanding jurisdictional statute as to what constitutes the “same claim,” Plaintiff could not pursue all its claims. The Claims Court held that the Church could not bring a takings claim in the Federal Court of Claims whilst seeking relief for other government transgressions in U.S. District Court — despite the fact that no single federal court had jurisdiction over all the claims, or could make the Plaintiff constitutionally whole for each of the government’s constitutional violations.
Because justice demands that a jurisdictional statute cannot be interpreted to force a Plaintiff to forgo one constitutional right to remedy another and armed with a sympathetic concurrence from the Federal Circuit Court of Appeals, the church, pastored by Victor Fuentes, filed a Petition for Certiorari before the U.S. Supreme Court which, despite amicus briefs filed on the Church’s behalf by both the State of Nevada and CATO Institute, was denied.
Meanwhile, because the U.S. Federal District Court moved so slowly on the Church’s remaining claims and despite surviving motions for summary judgment against it by the feds, Pastor Fuentes was left with no choice but to voluntarily dismiss claims at the District Court, simply so it could vindicate its constitutional right to be free of an uncompensated taking — a takings claim which, due to three more floods at the hands of government, has now become the legal claim by which the church can be made closest to whole.
Sadly, the damage done by this repeated flooding is now so severe that no choice is left but to hold the federal government accountable for at least a temporary taking of not only the vested water rights, but the entire property for more than five years, without the availability of the tort remedy or the injunctive relief originally sought to restore the property to its pre-diversion-project condition.
Michael Schaus is communications director at the Nevada Policy Research Institute (NPRI), a non-profit, non-partisan think tank that produces and shares ideas and information that empowers people. For more information, please visit www.NPRI.org.