High court questions case aimed at preserving shrinking lake

Brendan Riley

Saturday, Feb. 10, 2001 | 10:14 a.m.

CARSON CITY - Nevada Supreme Court justices raised questions Friday about a rural county's bid to force the state to make sure a shrinking desert lake doesn't turn into a mudhole.

While no immediate ruling in the Walker Lake case was made by the high court, Justice Cliff Young said Mineral County's move would cause "nothing but chaos" with a century of water rights law.

Chief Justice Bill Maupin said the federal courts might be a better forum for the case. He noted Walker Lake is fed by a river that starts in California and runs through an Indian reservation in Nevada before reaching the lake near Hawthorne.

Justice Nancy Becker added it's not clear that over-appropriation of upstream river water rights granted by the state's water engineer is the sole cause for Walker Lake dropping more than 100 feet over the last century. That includes a four-foot drop in the last year.

But the petitioners found an ally in Justice Bob Rose, who asked a lawyer for the state whether "you'd like us to just sit here and fiddle ... as Walker Lake dies."

Rose asked what harm would be caused if the court recognized for the first time a "public trust" doctrine that holds the state is responsible for preserving bodies of water for public use.

Attorney Mike Axline of the Western Environmental Law Center, arguing for the Walker Lake Working Group and Mineral County, said it's the state's responsibility to stop "substantial impairment" of the lake.

"And there's no question but what Walker Lake has been substantially impaired by overappropriation authorized by the state upstream of the lake," Axline said.

"To say that you can't do everything is not to say that you shouldn't do anything, which is the position that the state and the Walker River Irrigation District are taking," added Axline. The district serves upstream ranchers.

Deputy Attorney General Paul Taggart, representing the state engineer, countered that the Nevada Legislature never mandated recognition of the public trust doctrine.

Taggart said he wasn't arguing against trying to help Walker Lake, but added that state lawmakers and not the state Supreme Court should determine any major change in the state's water appropriation policies.

Gordon DePaoli of the Walker River Irrigation District also argued against the petition. He said the dispute is one for the federal courts, and, "Turning Nevada's water law on its head is not going to solve the problem."

Mineral County filed the suit to try to head off an ecological disaster brewing at the lake that is home to the threatened Lahontan cutthroat trout and other recreational fisheries.

Since 1882, Walker Lake has dropped 140 feet and lost 74 percent of its volume, primary as a result of irrigation development upstream. As the lake dries up, its salt content is rising - a trend that ultimately will prove fatal to the fish.

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