Theresa Thibeau

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Case Synopsis

In an opinion drafted by Justice Pickering, the Nevada Supreme Court considered the scope of NRS 534.110(8), which allows the State Engineer to restrict the drilling of wells in specific basins if the State Engineer determines that the drilling of additional wells would result in undue interference with existing wells. At issue in this case was the State Engineer’s Order No. 1293A, which prohibits the drilling of additional domestic wells in the Pahrump Artesian Basin unless the drilling applicant relinquishes 2.0 acre-feet annually from an alternate source. Respondents, Pahrump Fair Water, LLC, along with its individual members (“PFW”) challenged the order, arguing that (1) the State Engineer lacked authority to issue the Order because substantial evidence did not support the conclusion that the drilling of wells would result in undue interference with existing wells and (2) the State Engineer violated due process by issuing the order without providing notice and a public hearing. The Court reversed the district court’s decision invalidating the Order and held that NRS 534.110(8) authorized the State Engineer’s Order based on substantial existing evidence, and that because water is a public resource—as opposed to a private resource—and because Nevada’s allocation system for water does not guarantee there will be enough to meet every request for it, that notice and a hearing prior to the State Engineer’s restriction was not necessary.