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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

EGGER ENTER., LLC v. STATE ENGINEER (CIVIL)

Nevada Supreme Court

• Citations: 142 Nev. Adv. Op. No. 18

• Docket Number: 89291

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.7K)

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Combined Opinion

SuPREME Court
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142 Nev., Advance Opinion IS

IN THE SUPREME COURT OF THE STATE OF NEVADA

een gee

EGGER ENTERPRISES, LLC, A No. 89291
DOMESTIC LIMITED LIABILITY

vs. 2
NEVADA, OFFICE OF THE STATE AB
ENGINEER, DIVISION OF WATER YF BIE
CONSERVATION AND NATURAL

RESOURCES,

COMPANY,

STATE ENGINEER OF THE STATE OF - FEB 26 2026 +
RESOURCES, DEPARTMENT OF BY DEPUTY CLERK
Respondent.

Appeal from a district court order denying a petition for judicial
review of a State Engineer decision declaring the forfeiture of water rights.
Sixth Judicial District Court, Humboldt County; Michael Montero, Judge.

Affirmed.

Schroeder Law Offices, P.C., and Laura A. Schroeder, Therese A. Ure Stix,
and Caitlin R. Skulan, Reno,
for Appellant.

Aaron D. Ford, Attorney General, and J. Gregory Cloward, Deputy Attorney
General, Carson City,
for Respondent.

BEFORE THE SUPREME COURT, EN BANC.

ry-0FOUS

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OPINION

By the Court, LEE, J.::

NRS 534.090(1) provides that a water rights holder who does
not put the water to beneficial use for five successive years risks forfeiture
of those water rights. While a water rights holder may request extensions
to that deadline, whether to grant the requested extension is within the
State Engineer’s discretion, as guided by the considerations specified in
NRS 534.090(3).

Here, after receiving a notice of nonuse and intent to forfeit
from the State Engineer, appellant Egger Enterprises, LLC, obtained a one-
year extension under NRS 534.090(3). Upon its request for a second
extension, however, the State Engineer determined that another extension
was not warranted and declared some of Egger’s water rights forfeited.
Egger challenged the decision by filing a petition for judicial review in
district court, which was denied. Now before us, Egger argues that the
State Engineer’s decision requires reversal because he considered only
seven of nine factors enumerated in NRS 534.090(3). We conclude that NRS
534.090(3) does not mandate that the State Engineer make findings as to
factors that are not relevant to the request for extension. Moreover, the
State Engineer did not abuse his discretion in determining that, as guided
by the remaining factors, good cause did not warrant the extension. We
further conclude that equitable relief is not available to Egger as a matter

of law. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
In 1999, Egger purchased High Desert Ranch, consisting of
farmland located in the Pine Forest Valley hydrographic basin in Humboldt

County, Nevada. In 1997, the ranch’s prior owner had begun converting the

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ranch’s flood and hand-line irrigation systems to center pivot irrigation
systems,! a conversion that Egger later completed in 2016. The circular
configuration of the new pivot irrigation system resulted in the corners of
the fields no longer being irrigated, so Egger sought new uses for the
leftover water. To that end, Egger began filing Desert Land Entry (DLE)
applications with the Bureau of Land Management (BLM) to add additional
land to the ranch from adjacent public lands, with the goal of eventually
using the leftover water on this land.

However, the DLE application process was protracted due to
administrative conflicts between the BLM and the Nevada Division of
Water Resources (NDWR). In 2014, the BLM notified Egger that its DLE
applications were being placed on hold while Egger obtained water use
permits from NDWR. Egger then filed the appropriate water use
applications with NDWR requesting to move water onto the DLE land by
changing the point of diversion and place of use of the unused water (the
change applications). Over a year later, the NDWR wrote to the BLM
regarding the change applications and expressed concern that the BLM was
deviating from historical practice when it put Egger’s applications on hold
while Egger obtained NDWR water rights permits. In 2016, the BLM
agreed to return to its established practice and permitted Egger to resume
the DLE application process.

A nonparty challenged the change applications, arguing that

they should be denied because Egger had not used the water subject to the

“As the term implies, a center pivot operates from a single stationary
point situated in the center of a field or designated area.” Mike Price & Kd
Butts, Irrigation Fundamentals: Part 7, Sprinkler Systems, Center Pivots,
and Linears, Water Well Journal (Oct. 22, 2019), https://waterwelljournal.
com/irrigation-fundamentals-8.

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change applications in over 16 years, and thus the water rights were
forfeited. In fact, Egger had not used portions of its water rights for 27
years—since the time the previous owner began the conversion to pivot
irrigation. After briefing and a hearing before the State Engineer, the State
Engineer issued Ruling 6396, in which he found by clear and convincing
evidence that the water previously used in the corners of the fields had not
been put to use for five or more consecutive years and declared those unused
portions of Egger’s water rights forfeited. In response, Egger filed a petition
for judicial review challenging the ruling on various grounds. The district
court only reached the issue of notice, finding that the State Engineer failed
to provide proper notice under NRS 534.090(2)(a) and thus reversed and
remanded Ruling 6396.

On remand, the State Engineer sent the required notice of
nonuse and intent to forfeit to Egger. Rather than challenge the finding of
nonuse, Egger filed requests for an extension of time to prevent forfeiture.
In the extension requests, Egger acknowledged that portions of its water
rights were unused but failed to affirmatively indicate when the water
would be put to beneficial use. The State Engineer nonetheless granted
Egger’s requests for an extension, warning Egger that no further extensions
would be granted unless good cause was shown. See NRS 534.090(3). A
year later, Egger filed another round of extension requests. The State
Engineer denied Egger’s extension requests and issued a declaration of

forfeiture of the unused portion of Egger’s water rights. In his decision, the

“The nonparty challenged Egger’s application pursuant to NRS
533.365, which permits individuals to file a protest against an application
to change the place of diversion or manner or place of use with the Office of
the State Engineer.

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State Engineer made findings as to seven of the nine factors listed in NRS
534.090(3), making no findings as to NRS 534.090(8)(c) and NRS
534.090(3)(g).

In response, Egger filed a petition for judicial review
challenging the State Engineer’s declaration of forfeiture and seeking
equitable relief. The district court denied Egger’s petition for judicial
review, concluding that the State Engineer's decision was supported by
substantial evidence and that equitable relief was unavailable to Egger as

a matter of law. This appeal followed.

DISCUSSION
By statute, Nevada’s water belongs to the public. See NRS

533.025. Those wishing to utilize it must therefore show that they are
putting the water to beneficial use or else risk having their rights forfeited.
Desert Irrigation, Lid. v. State, 113 Nev. 1049, 1059, 944 P.2d 835, 842
(1997) (The concept of beneficial use is singularly the most important
public policy underlying the water laws of Nevada and many of the western
states.”); see also NRS 538.030 (providing that “all water may be
appropriated for beneficial use” subject to existing rights and other
limitations provided in the water statutory scheme). “[Flailure for 5
successive years... to use beneficially all or any part of the underground
water for the purpose for which the right is acquired or claimed, works a
forfeiture” of that right. NRS 534.090(1). If the State Engineer’s records
show that the water rights holder has failed to put the water to beneficial
use for four or more consecutive years, the State Engineer must then notify
the rights holder that they have one year from the date of notice to put the
water to beneficial use or risk forfeiture. NRS 534.090(2). To prevent a
forfeiture, the water rights holder may request a one-year extension of time

to show that the water has been put to beneficial use. NRS 534.090(8). The

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State Engineer may grant an extension “upon request and for good cause
shown.” Jd. NRS 534.090(3) lists nine factors that the State Engineer
“shall, among other reasons, consider” in determining whether to grant or
deny a request for an extension.

“[T]his court’s review of a State Engineer’s decision is limited.”
Bacher v. Off. of State Eng’r of State of Nev., 122 Nev. 1110, 1121-22, 146
P.3d 793, 800 (2006). We will not substitute our judgment for the State
Engineer’s judgment, nor will we reweigh the evidence. Id. at 1122, 146
P.3d at 800. Rather, we are hmited to determining “whether substantial
evidence in the record supports the State Engineer’s decision.” Pyramid
Lake Paiute Tribe of Indians v. Ricct, 126 Nev. 521, 525, 245 P.3d 1145,
1148 (2010) Gnternal quotation marks omitted). Substantial evidence is
evidence “a reasonable mind might accept as adequate to support a
conclusion.” /d. (internal quotation marks omitted). “Questions of law, such
as whether the State Engineer applied the correct legal standard, are
reviewed de novo.” Pyramid Lake Patute Tribe, 126 Nev. at 525, 245 P.3d
at 1148.

Egger’s primary contention is that the State Engineer
improperly applred NRS 534.090(3) because his decision failed to account
for all nine considerations enumerated in the statute. Egger further
contends that the State Engineer’s decision was not supported by
substantial evidence and that Egger is entitled to equitable relief. Based
on the text of the statute, we conclude that the State Engineer properly
apphed NRS 534.090(3), that the decision is supported by substantial

evidence, and that equitable relief is not available.

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The State Engineer was not required to make findings on all nine
considerations enumerated in NRS 534.090(3) before denying the request for
an extension

NRS 534.090(3) states, in relevant part, that

[t]he State Engineer may, upon the request of the
holder of any right described in subsection 1, extend
the time necessary to work a forfeiture under
subsection 2 if the request is made before
expiration of the time necessary to work a
forfeiture. Except as otherwise provided in
subsection 4, the State Engineer may grant, upon
request and for good cause shown, any number of
extensions, but a single extension must not exceed
1 year. In determining whether to grant or deny a
request, the State Engineer shall, among other
reasons, consider [nine enumerated factors].

(Emphasis added.) While the State Engineer must consider each
enumerated factor, nothing in the statute requires him to make findings on
irrelevant or inapplicable factors. See Mountain Falls Acquisition Corp. v.
State, No. 74130, 2019 WL 2305720, at *2 (Nev. May 29, 2019) (Order of
Affirmance) (“NRS 534.090 neither requires the State Engineer to grant an
extension nor to weigh all the NRS 534.090(2)? factors in every case.”).
Indeed, not all NRS 534.090(3) considerations are relevant to every request.
Here, the State Engineer did not make findings as to factor (c), “[a]ny
economic conditions or natural disasters which made the holder unable to
put the water to that use,” and factor (g), “[t]he date of priority of the water
right as it relates to the potential curtailment of water use in the basin.”
Egger did not specifically allege that its nonuse was due to economic

conditions or natural disasters, nor did it allege that there had been or was

2This subsection has been renumbered to NRS 534.090(38).

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likely to be curtailment.‘ Where the factors are not relevant to an
applicant’s showing of good cause for an extension, the State Engineer need
not make findings as to those factors. See Mountain Falls, 2019 WL
2305720, at *2.

The State Engineer’s decision was supported by substantial evidence

The State Engineer’s finding as to NRS 534.090(3)(a) is supported by
substantial evidence

While no single NRS 534.090(8) consideration is determinative,
we address each relevant factor in turn. The first factor for the State
Engineer to consider is “whether the holder has submitted proof and
evidence that the holder is proceeding in good faith and with reasonable
diligence to resume use of the water beneficially for the purpose for which
the holder’s right is acquired or claimed.” NRS 534.090(3)(a). We have
previously held that a water rights holder does not show good faith and
reasonable diligence regarding the use of water where the water rights
holder plans to hold on to excess water rights while attempting to secure
new uses. See Desert Irrigation, Ltd. v. State, 1138 Nev. 1049, 1057-58, 944
P.2d 835, 841 (1997); see also Sterra Pac. Indus. v. Wilson, 135 Nev. 105,
110, 440 P.3d 37, 41 (2019) (holding that the anti-speculation doctrine,

which prevents water right holders from retaining their water rights

1Although Egger argues on appeal that progress on its change
applications was delayed due to Department of Interior Order 3395 during
the COVID-19 pandemic, we do not consider this here as Egger made no
mention of the impacts of the pandemic in its 2019 or 2020 extension
requests. See Off. of the State Eng’r v. Morris, 107 Nev. 699, 701, 819 P.2d
208, 205 (1991) (stating that, in reviewing findings of the State Engineer,
this court is limited to “a determination of whether substantial evidence in
the record supports the State Engineer’s decision” (emphasis added)).

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without a showing of beneficial use, apples to requests for extensions of
time).

Here, while the State Engineer acknowledged that Egger has
spent the past ten years attempting to acquire land on which it can use the
excess water, Egger is not entitled to retain excess water rights while it
waits to secure new uses. See id. Because Egger did not yet own the land
to which it sought to redirect its unused water, we conclude that the State
Engineer's finding that Egger did not exercise reasonable diligence is

supported by substantial evidence.

The State Engineer’s finding as to NRS 534.090(3)(b) is supported by
substantial evidence

The second factor takes into consideration “[t]he number of
years during which the water has not been put to the beneficial use for
which the right is acquired or claimed.” NRS 534.090(3)(b). NRS 534.090(1)
provides that failure to use a water right beneficially for five successive
years will result in a forfeiture of those rights.

Here, the State Engineer determined that portions of Egger’s
water had not been put to use in more than five years and that Egger had
no immediate plans to do so. Specifically, the State Engineer based this
determination on evidence showing that the corners of the sections with
irrigation pivots had not been irrigated since 1997. While Egger contests
this conclusion on the basis that the water under those sections could be
used elsewhere, Egger’s 2019 and 2020 requests for extensions of time
conceded that a portion of its water was not being used. An Egger
representative also testified at a 2017 hearing that he applied for additional
land in order to use that water. Moreover, the State Engineer’s report
suggests that the unirrigated corners of the center pivot irrigation areas can

be directly linked to nonuse of the specified water because these rights have

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“well defined places of use.” As this report is a summary of scientific
findings, as opposed to findings of fact, we defer to this conclusion. See
Wilson v. Pahrump Fair Water, LEC, 137 Nev. 10, 16, 481 P.3d 853, 858
(2021) “[W]hen examining this kind of scientific determination, as opposed
to simple findings of fact, a reviewing court must generally be at its most
deferential because such conclusions are within [the agency’s] area of
special expertise... .” (second alteration in original) (internal quotation
marks omitted)). Thus, as to this consideration, the State Engineer's
conclusion that the forfeited water had not been used in excess of five years

was supported by substantial evidence.

The State Engineer’s findings as to NRS 584.090(3)(d) and (f) are
supported by substantial evidence

NRS 534.090(8)(d) and () prompt the State Engineer to
consider whether the water right is located in a basin within a county under
a declaration of drought or in a basin that has been designated as a critical
management area under NRS 534.110(7). The State Engineer analyzed
these factors together and determined that Egger’s nonuse of water was not
intended to conserve water because Egger indicated that it plans to put the
water to beneficial use in farming. While the State Engineer also noted that
Nevada was in extreme to moderate drought during the relevant period,
from 2012 to 2020, this is not determinative. Although these considerations
are primarily intended to provide the State Engineer with the ability to
suspend forfeitures of water rights during times of drought, see Hearing on
A.B. 209 Before the Assemb. Comm. on Nat. Res., Agric., and Mining, 79th
Leg. (Nev., March 14, 2017), at 10, Egger failed to discuss in its requests
how such drought conditions contributed to its decades-long nonuse of the
water. Further, nothing in Egger’s requests suggested that the Pine Forest

Valley basin has been classified as a critical management area under

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subsection 7 of NRS 534.110. Accordingly, the State Engineer's finding was
supported by substantial evidence.

The State Engineer’s decision as to NRS 524.090(3)(e) is supported by
substantial evidence

NRS 534.090(3)(e) looks to demonstrated efforts to conserve
water that resulted in a reduction in water consumption. In his decision,
the State Engineer determined that this factor was not a relevant
consideration because the evidence showed that, although a previous wheel
line irrigation system had been switched to a more water-efficient pivot
irrigation system, even some areas equipped with pivot irrigation were not
actually being irrigated. Therefore, the decrease in water use was not due
to an effort to conserve, but due to complete nonuse. Further, nowhere does
Egger allege that it installed pivot irrigation systems in an effort to conserve
water. Moreover, if Egger were permitted to keep its water rights, the
record suggests that it would not conserve the water but would eventually
use it all on adjacent land. The State Engineer’s conclusion as to this
consideration 1s supported by substantial evidence.

The State Engineer’s finding as to NRS 534.090(3)(h) is supported by
substantial evidence

In accordance with NRS 534.090(3)(h), the State Engineer
considered the availability of water in the basin. In his decision, the State
Engineer found that the withdrawals of groundwater from the Pine Forest
Valley basin consistently exceed the perennial yield and that there is no
unappropriated water within the basin. Egger conceded this fact in its
petition for judicial review, and we therefore decline further analysis of this

factor.

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The State Engineer’s reasoning as to NRS 534.090(8)(i) does not tip
the balance in Egger’s favor

The final consideration, NRS 534.090(3)(@), prompts the State
Engineer to consider any orders restricting use or appropriation of water in
the basin. In his decision, the State Engineer identified two orders that
were relevant to this consideration: (1) State Engineers Order 831
implemented in 1983, which established irrigation as a nonpreferred use
and denied applications for new appropriations of groundwater for
irrigation purposes, and (2) State Engineer’s Order 1290, implemented in
2017, which further limited new appropriations to temporary and
environmental purposes. Given these orders, Egger will likely have no
ability to apply for new water rights moving forward should the DLE
applications be granted. Thus, we conclude that this factor may weigh in
favor of Egger. But because no single factor is outcome determinative, we
are not convinced that this tips the balance so far in Egger’s favor as to
warrant reversal.
Egger is not entitled to equitable relief

This court reviews a district court’s decision granting or
denying equitable relief for abuse of discretion. Wilson v. Happy Creek, Inc.,
135 Nev. 301, 310, 448 P.38d 1106, 1113 (2019). However, as this
determination presents a mixed question of law and fact, “deference is not
owed to legal error, [s]o, to the extent the question is whether the facts as
found allow equitable relief, de novo review applies.” Id. at 310-11, 448 P.3d
at 1113-14 (citation omitted).

Nevada courts have the authority to grant equitable relief in
water law cases beyond the relief prescribed by statute “when warranted.”
See, e.g., id. at 305, 448 P.3d at 1110 (citing cases recognizing the courts’

power to grant equitable relief in water law cases). Equitable relief,

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however, is not available where the water was not put to beneficial use,
absent estoppel due to an error by the State Engineer. /d. at 311, 448 P.3d
at 1114. Further, equitable relief is allowed only when such relief improves
(1) efficiency, (2) sustainability, (3) fairness, and (4) clarity. Id.

Efficiency is a central concern in Nevada and “fundamental to
[Nevada's] water law jurisprudence.” Jd. (alteration in original) (internal
quotation marks omitted). Thus, the court may grant equitable relief where
such relief promotes water use that is “more beneficial, unwasteful, and
efficient.” Jd. Relatedly, when looking to sustainability, courts consider
that water 1s a scarce resource, and thus, equitable relief should “craft a
remedy that recognizes the interests of future generations.” /d. Fairness
recognizes that Nevada’s water is a public good, and therefore, a remedy
“must better effect justice than what the statute at issue requires.” Id. at
312, 448 P.3d at 1115. Finally, an equitable remedy is appropriate if the
remedy promotes greater clarity in water law. Jd. at 313-14, 448 P.3d at
1116. Clarity may be promoted where a statute designed to improve
efficiency is instead used as a penalty that could ultimately disincentivize
forward-looking efforts to improve water use. Id.

Egger asks this court to use its equitable powers to reinstate its
water rights. But substantial evidence demonstrates that Egger has not
made beneficial use of its forfeited water rights for at least 10, and likely
closer to 27, years. Further, Egger’s ultimate goal was not to conserve
water, but to expand its operation while maintaining its same rights.
Moreover, there is nothing in the record to support a finding of estoppel.
Finally, the State Engineer had the authority to grant Egger’s extension
request if good cause was shown. Cf. Happy Creek, 135 Nev. at 305, 448
P.3d at 1110 (granting equitable relief where the State Engineer was

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without statutory authority to act). Accordingly, we conclude that equitable

relef is inappropriate under these circumstances.
CONCLUSION

We conclude that the State Engineer properly applied NRS
534.090(3) by evaluating and weighing considerations applicable to Egger’s
extension requests. Accordingly, the State Engineer’s forfeiture of Egger’s
water rights was supported by substantial evidence. As Egger has failed to
put its water to beneficial use within the statutorily prescribed time period
and extension thereof and is further not entitled to equitable relief, we

affirm the decision of the district court.

(Pye. 5

Lee Ws

We concur:

Herndo Pickering )

Parraguirre vo Bell CC / Ye
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