Laxalt Wading in the Waters

Sometimes it’s  a good idea to read all the way to the end of an article.  A point illustrated in this discussion of Adam Laxalt’s latest:

He participated in a conference call with EPA administrator Scott Pruitt on July 13, as part of a briefing over the Waters of the United States rule. Laxalt in 2015 entered Nevada into a lawsuit with 12 other states challenging the Obama administration’s expansion of the rule, which covers federally protected waters under the Clean Water Act.

Previously (2015)  the states won a TRO against the EPA’s expansion of the waters subject to the Clean Water Act:

“The States here have demonstrated that they will face irreparable harm in the absence of a preliminary injunction,” he said. “Once the Rule takes effect, the States will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act.”

“The Rule allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity’ of any navigable-in-fact water,” Erickson said.

As of 2017, Laxalt joined litigation involving groundwater rights, and the priority of states to exercise control, in one instance at the expense of Native American water rights:

A Native American tribe sued in federal court claiming that, as part of its federal reservation of land, it has a priority right to use groundwater in the valley. Relying on Supreme Court cases involving implied reservations of surface water rights, the 9th Circuit Court of Appeals held that a priority right to use groundwater under federal reserved land is included as an implied right with the reservation, and that that right necessarily pre-empts state water law.

[…] The brief, in support of writs filed by two Southern California water agencies, asks the Supreme Court to clarify whether the federal reserved water right doctrine extends to groundwater and, if so, under what circumstances, so as to guide all states on managing groundwater resources.

And, there’s another sticky legal wicket, as illustrated by the case of property owners in Pahrump who feel they will be harmed by a State Engineer’s office decision about drilling on private property:

“It is factually impossible for petitioner to be irreparably harmed if a stay of Order #1293 is not issued as it does not own any land or otherwise have an interest that is affected by the order,” Laxalt’s opposition filing stated. “Petitioner does not have any legal interest in the basin.”

The argument of legal standing revolves around a technicality, with Laxalt noting that as a limited liability company that did not exist until after Order #1293 was issued, Pahrump Fair Water LLC is not affected by the order. The filing read, “…a limited liability company is an entity distinct from its managers and members.”

Laxalt’s opposition contains various other arguments as well, including his belief that a stay of Order #1293 would harm the public. In addition to declarations regarding potential negative impacts to water supply, Laxalt predicted a rash of drilling if a stay were granted.

Laxalt may be on more solid ground in this case, but calling the input from resident members of the plaintiffs “impertinent,’ ‘immaterial’ and ‘irrelevant’ probably isn’t the best way to make friends, influence people, and get individuals to the table to negotiate a settlement.

Granted, water rights may not be a crucial element in the outcome of Nevada’s 2018 elections, but Laxalt’s relationship with the ethically challenged EPA director could raise eyebrows and questions in this political climate.

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