Document Type

Article

Publication Title

Virginia Environmental Law Journal

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.

First Page

1

Last Page

39

Publication Date

2022

Comments

Co-author Michael Benjamin Smith is a 2021 graduate of Lewis & Clark Law School.

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