Newlands Reclamation Project

Water Rights: A Personal Property Issue

By Ernest C. Schank
  • Monday, March 28, 1994

Nevada's current water wars continue impassioned by traditional, historical, and environmental precedents. However, no one has examined this issue from the perspective of private property rights. NPRI has discovered that there is a wealth of legal legacies which support claims by agricultural users of the rural lands in Nevada... legacies which find their grounding within the body of the Fifth Amendment to the United States Constitution, popularly known as the "takings clause" ("No Shall private property be taken for public use without just compensation"). Federal "takings" becomes a serious issue especially after review of Supreme Court rulings.

Supreme Court decisions dating back to 1902 and as late as 1985 agree that the water vested in the original Newlands Reclamation Project are to be considered "irrevocable" and "appurtenant" to the land owned by the agricultural users. ("Appurtenant" refers to the addition of one entity to a more important entity - water belongs to the land which belongs to the private property owner.)

In addition, economic benefits reported by a recent University of Nevada study indicated that agricultural practices in Newlands area are essential to this areas survival. Off-shoots of this industry, such as construction, agricultural services, transportation and public utilities, and mining are all quite dependent on the Newland farmer.

Following the Supreme Court Nollan decision in 1987, an Executive Order was issued by then President Reagan, requiring that agencies take into account the idea of "takings" which framing all new government regulations. This Executive Order (EO 12630) has been repeatedly spurned by the Environmental Protection Agency, the Department of the Interior, the Bureau of Land Management and the Bureau of Reclamation.

While the property owner in this area is not in favor of fouled air and polluted or wasted water and is willing to contribute to the achievement of important environmental objectives, most are not content to be left holding an empty box after all the value of their property has been removed by over-reaching environmentalists turned bureaucrats.

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