Walker Lake and the Public Trust in Nevada's Waters

39 Pages Posted: 11 Oct 2021 Last revised: 1 Dec 2022

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark College - Lewis & Clark Law School; Lewis & Clark College Paul L Boley Library

Michael Benjamin Smith

Lewis & Clark Law School

Date Written: September 4, 2021

Abstract

Walker Lake, a terminal desert lake in western Nevada’s Mineral County, was once home to a thriving trout fishery that sustained the Walker River tribe but has become an ecological wasteland due to irrigation diversions. The county recently intervened in a longstanding federal water rights adjudication, seeking some restoration of the lake’s water level, relying on the public trust doctrine.

In a 2020 landmark decision, the Nevada Supreme Court ruled that the public trust doctrine applied to all waters and all water rights in the state. The court also recognized that the doctrine was not only embedded in the state’s constitution and water code but was also inherent in the state’s sovereignty. Consequently, the public trust doctrine is antecedent to all water rights in the state. Despite the doctrine’s seniority, however, the court ruled that the state’s policy of the finality of water rights forbade reallocation of existing water rights. The court did not address how to fulfill both the public trust doctrine and appropriative water rights short of reallocation, a chore left for the federal district court that has been overseeing the Walker River adjudication for some 120 years.

This article explains the case, its context, and the questions that await resolution. We maintain that the district court can reconcile the public trust doctrine with the state’s policy of finality, and substantially restore the lake’s ecology. If we are right, the Walker Lake decision will have precedential value throughout the West in a climate-changed era in which water will be in short supply, and conflicts between water rights and public trust resources like Walker Lake are sure to increase.

Keywords: water rights, the public trust doctrine, Nevada, environmental law, natural resources law

JEL Classification: H23, H41, K11, K32, Q01, Q18, Q25, Q28, Q 58

Suggested Citation

Blumm, Michael C. and Smith, Michael Benjamin, Walker Lake and the Public Trust in Nevada's Waters (September 4, 2021). 40 Virginia Environmental Law Journal 1 (2022), Available at SSRN: https://ssrn.com/abstract=3917279

Michael C. Blumm (Contact Author)

Lewis & Clark College - Lewis & Clark Law School ( email )

10101 S. Terwilliger Boulevard
Portland, 97219-7762

Lewis & Clark College Paul L Boley Library ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

Michael Benjamin Smith

Lewis & Clark Law School

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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