County commissioners play baseball
Douglas County commissioners have gone to bat for their counterparts in Churchill County and the City of Fallon.
The Douglas board agreed 5-0 Thursday to file a friend of the court brief on behalf of Churchill County’s efforts to get the federal government to obey the law.
“This is an absolutely fascinating constitutional study,” said County Commission Chair Jacques Etchegoyhen. “The ramifications make the water stuff look small. This is a lot bigger than any old county in Nevada.”
The issue arose as the settlement nears in the Truckee River Operating Agreement regulating water supplies to Fallon and Churchill County. The city and Churchill County commissioners claim the federal government failed to follow the National Environmental Protection Act which calls for a study on how the river settlement will affect the communities before the agreement becomes law.
The City of Fallon and Churchill County commissioners filed suit in U.S. District Court in Reno to enforce their rights under the National Environmental Protection Act, but the federal court tossed out the suit, saying the town and county had no standing in court to sue the federal government.
“What Fallon and Churchill County were trying to say is that there needed to be a comprehensive environmental impact statement of all federal actions that are going to take place under the Truckee River negotiated settlement,” said Douglas County Deputy District Attorney Tom Perkins. “There are all kinds of things going on, and nobody ever evaluated the total impact of all those things the federal government has planned.
“The federal court in Reno threw it out. They (Fallon, Churchill County) appealed to the Ninth Circuit Court in San Francisco and our commissioners authorized us to file papers in support of the position that local government has standing to bring an action to enforce the National Environmental Policy Act.”
Jim Regan, chairman of the Churchill County commissioners, said Monday he won support on behalf of the community’s battle with the federal government from the interstate region of the National Association of Counties.
“I told them, ‘Forget the particular issue. Think of it this way. If we don’t appeal that decision and the federal government wins, that is precedent-setting. If any county has a problem with something to do with the NEPA process, they’ll have a precedent. What are we supposed to do? We appreciate people filing amicus briefs in our favor. In reality, they’ll be doing themselves a favor.”
Bob Hadfield, executive director of the Nevada Association of Counties, called the federal court’s action “rather startling.”
“The problem arises when you realize that most city and county jurisdictions have the responsibility to maintain safe and adequate water supplies. The federal government holds them accountable. In this case where you have a plan whereby people are encouraged to sell out their water rights, leaving prior irrigated lands to lie fallow, the question is what happens. Fallon is concerned over quality of its drinking water. It seems rather incredible where these things might occur. If we have no standing in these processes, why should we be held accountable for unfunded mandates?” Hadfield asked.
For Etchegoyhen and other Western water watchers, the issue is two-pronged – rights and water.
“I don’t know how to gingerly say this, but with the whole Western lands things, sometimes we don’t agree with what other counties are arguing,” Etchegoyhen said. “But I feel very strongly that every county has to have its day in court. You kind of expect counties to represent their interests. The federal court is saying counties are considered not as important. We’re nothing. To say we don’t have standing seems, from a farmer’s legal standpoint, they’re really running roughshod over the Constitution.
“This is a huge issue. I don’t know how to emphasize enough that counties have standing. There’s been a 20-year history saying counties do have standing to sue, but this kind of represents a 180-degree change of course by the federal court.”
Douglas County’s stake in the issue is closely tied to a recent challenge of the Alpine decree by the Pyramid Lake Paiute Tribe which regulates distribution of the upper Carson.
Carson Valley issues parallel what’s happening in Fallon as the Churchill County users fight to protect their water from what they see as appropriation by the Pyramid Lake Paiute Tribe.
In both cases, the Paiute Tribe’s legal action is being directed by Boulder, Colo. attorney Robert Pelcyger, who also initiated the effort last December to get the federal government to look at the Alpine decree.
“The law says that anytime the federal government plans to do something to impact human and physical environment, they have to study the mitigations and impact,” Perkins said. “It’s important for us if the federal government decides to take action on the upper Carson. We want to be able to comply with the law, but the local government should have the right to sue in federal court to make sure they (the federal government) comply with the law. It’s ironic that people like us are trying to enforce EPA legislation to affect the human environment.
“It’s unusual they wouldn’t allow Fallon to be represented. It’s hard to speculate on what the motives of the federal government are, but the people who put the Constitution together worried about it. There are 20 years of court cases that say local government can do this,” Perkins said.
“We’re trying to help these guys out. Amicus brief means you’re appearing in someone else’s court. We think they have a legitimate claim, that they ought to have the right to go in court and argue their case.”
Churchill County Commissioner Regan estimated that the community has spent $600,000 so far since 1989 trying to protect its interests in the Truckee River.
“Imagine what a community could do with that kind of money,” he said. “That doesn’t even include staff time, it’s just legal fees. Plus, through our taxes, we’re paying for the Tribe. It’s terrible.”
Regan also said Pelcyger is trying to drive a wedge between the two counties.
“What’s happening now is Pelcyger is trying to tell us that his efforts to reopen the Alpine decree would be good for us. He said if he can prove that the upper Carson River is being wasted, he won’t take so much so much from us,” Regan said.
He called the whole Truckee River settlement process “a little tainted.”
“It’s termed a negotiated settlement, it represented an end to 100 years of water wars in the Truckee, but it probably started another 100 years’ war,” Regan said.