The Next Supreme Court Case Involving Nevada

(Michael Schaus, NPRI) – The U.S. Fish and Wildlife Service has 90 days to return water to the property of a private church ministry or face significant administrative fines, according to an order from the Nevada Department of Water Resources.

The state order is a boost to the “takings” case against the U.S. Fish and Wildlife Service — brought by the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation — for having illegally diverted water from the Solid Rock Ministry in Nye County. The case is currently pending in the U.S. Court of Federal Claims.

The Nevada Department of Water Resources has verified that the Ministry did, in fact, have vested rights to the water that the federal government intentionally, illegally and deliberately diverted from the private property. According to the order from the state, the U.S. Fish and Wildlife Service must return the water to its “historic path” traversing the church property, within 90 days, or face administrative fines up to $10,000 per day until corrective action is taken.

The state order further indicated that federal officials deceived the state of Nevada in documents submitted to it when federal officials claimed historic restoration of a waterway yet diverted the spring-fed stream to a new and inadequate channel reflected nowhere in historic maps or surveys, dating all the way back to the 1890s.

“Getting the water returned would be a major first step in making the Ministry whole, after years of suffering litigation and egregious constitutional violations by the U.S. Fish and Wildlife Service,” said Joe Becker, director of NPRI’s Center for Justice and Constitutional Litigation.

“However, the Ministry still suffered significant harm in the interim from the federal government’s actions — including repeated flooding and five years of flood damage resulting from the illegal water diversion project.”

The trouble began in late 2010, when the U.S. Fish and Wildlife Service illegally and deliberately diverted a spring-fed stream to which Solid Rock Ministry had long-vested water rights. Since at least as early as the late 1800s, the stream had traversed the private property now owned by the church.

This diversion of the waterway and taking of the Ministry’s vested water rights was done without even the federally requisite Clean Water Act permits, in direct violation of FEMA requirements as enforced by Nye County, and with no regard for the Ministry’s religious use of the water for baptisms.

The scofflaw water diversion project had other ramifications as well. In addition to stripping the Ministry of its access to its “river baptism” waters, the diversion resulted in repeated flooding of the church property.

The federal government has denied any liability for the flooding and has argued that the Ministry had no rights to the water that had traversed its property for decades. That federal argument has now been flatly rejected by the Nevada Department of Water Resources.

“When federal officials protested the Ministry’s request for change of water use,” said Becker, “Nevada Water Resources noted the irony in the fed’s position that the church had no vested rights — given that the vested water rights claimed by the federal government itself in the watershed had been acquired by exactly the same means as those held by the church.”

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.

As predicted years ago by Solid Rock Ministry’s expert hydrologist, erosion from repeated floods — which began after the Fish and Wildlife Service finished its inadequate diversion channel around the property — has carved away large swaths of the once pristine 40-acre property.

And, because of the federal government’s dangerously negligent construction of the channel — never engineered to accommodate any rain or runoff waters — the damage has repeatedly been compounded.

“A mini-grand-canyon now cuts through what was once lush wetlands, and the significant improvements made to structures and the land for the benefit of young campers are being undone with each recurring flood,” explained Becker.

Citing three direct violations of Nevada Statutes, the Department of Water Resources’ order for the federal government to replace the water, he said, is further proof that the Fish and Wildlife Service acted outside of the law.

Case History:

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). NPRI is 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.