Walker Lake – the legal saga continues with the endgame in question

Walker Lake, one of 3 endorheic lakes in the western United States, at one time supported an essential fishery and ecosystem for the Walker River Paiute tribe and the regional tourist economy. 

Rare terminal lakes have no outflow, and lake levels are a balance between inflow and evaporation.

The Walker River flows more than 100 miles, west to east, to get to Walker Lake. The Walker begins high in the Sierra Nevada in California and passes through what has become one of Nevada’s most productive agricultural regions. 

Agriculture in the Walker River watershed owes its existence to diversions of Walker River water, and as a result, the river has been over-appropriated for more than 100 years. One hundred twenty-five years ago, the level of Walker Lake was more than 150 feet higher than it is today. 

More than 500 water rights holders along the Walker River and a series of reservoirs have deprived Walker Lake of inflow since the turn of the last century, and the lake has died by degrees while the region’s agricultural industry has thrived.

A massive population of giant Lahontan cutthroat trout would swim from the lake up into the Walker River to spawn every spring. The number of trout was large and robust enough to support a commercial fishing operation and the Walker River Paiute tribe, but those days are long gone.

The reflection of nearby Mount Grant in lake water is as striking as ever, but in 2020, Walker Lake is a saline puddle by contrast to its former state. According to river flow data from the United States Geological Survey, there is currently almost no water flowing into Walker Lake, a common condition. 

Today, where the riverbed meets the lake is an ooze of mud. The lake is all but biologically dead.

But a decades-old public trust lawsuit made a move forward in its glacial process through federal courts last week, and lake advocates are hopeful Walker Lake, a cornerstone of the regional economy and ecology, can one day be revived.

On this edition of the Wild Hare, we hear from Glenn Bunch, president of the Walker Lake Working Group and Simeon Herskovits, an attorney for a public-interest law firm Advocates for the Community and the Environment. Herskovits is the lead attorney representing in the public trust case that seeks to restore and maintain Walker Lake. 

(See music and sound design credits below podcast transcript)

What Happened to the River Water?

The Smith Valley is about 50 miles east of the obtuse angle on the Nevada/California border. Most of the valley is in Lyon County and some is in Douglas County. According to the Nevada Department of Agriculture, nearly 500 farms and ranches in Lyon County add roughly $330 million dollars a year to the local economy. Groundwater is widely used for irrigation, but much of regional farming activity is dependent on Walker River water.

Legal battles date to 1919.The dam to expand Topaz Lake was built in 1922. A mountain meadow became Bridgeport Reservoir in 1924, and more water was diverted from the river. Construction of the reservoirs on the Walker River came with associated drops in the level of Walker Lake. The 1936 Walker River Decree established nearly 500 water rights on the river.

“A Walker Lake Paviotso,” 1924 – photo: Edward S. Curtis/Library of Congress

Glenn Bunch is the president of the Walker Lake Working Group and says he and his children grew up swimming and recreating on Walker Lake. Bunch became involved in the effort to save the lake when it became apparent that the economic and ecological heart of the community was literally dying.

Bunch said a working group formed in the 1980s but failed to reach a resolution that would help the lake. 

Senator Harry Reid convened another series of meetings in the 1990s, and lake advocates pushed for farmers and ranchers to use sprinkler systems instead of flood irrigation to save more water for the river.

According to Bunch, the water savings did not make it back into the river but meant more acreage under cultivation. 

“There was another group of meetings that we started through Senator Reid, and we met for like 5 years with that one. And finally, when we got to the bottom of that, what we needed to do to try to alleviate the problem was, let’s see if we can find a happy medium. You guys in ag go to sprinkling, and instead of using 100 percent of your water right, let’s get part of it to the lake. 

“So they bought some sprinklers to do some testing on it and showed them it could be done,” Bunch explained. “Well, instead of them letting that water go down the river to the lake, they increased the size of their fields to put more land under irrigation because, ‘hey, look at this, we can use the same amount of water in a bigger area and have more crops.’ So that really didn’t work well for us,” Bunch said.

The Walker Basin Conservancy also secured money to help improve river bed efficiency so less water would be lost to the ground and evaporation and more would stay in the river and ultimately the lake. Once again, the lake’s needs were ignored, said Bunch.

“We started meeting with them, as far as the working group went in ‘94. I was on the task force before then, but we’ve been meeting with them (farmers and ranchers) trying to work out some kind of an agreement. 

“They would come and tell us if you could find some money and fix this riverbed, if you could find some money and straighten the river here, there would be more water flow down it. 

“And so the Walker Basin Conservancy, funded by Senator Reid, had some money, and they started working with straightening the river beds and realigning them and all of that, but still no water has increased coming to the lake. 

“What it’s done is, it has increased the flows to them (ranchers and farmers), to be able to use more for what they’re doing,” Bunch said.

“Paviotso house at Walker Lake,” 1924 – photo: Edward S. Curtis/Library of Congress

In 1994, Mineral County and the Walker Lake Working Group filed the ongoing public trust lawsuit.

The public trust doctrine is an old system of law that ensures the public’s right to access and use natural resources. The doctrine requires that the government hold certain resources in the public trust for the benefit of the people.

Simeon Herskovits is an attorney for the public-interest law firm Advocates for the Community and the Environment. Herskovits is the lead attorney representing in the public trust case that seeks to restore and maintain Walker Lake. 

Over years, the case has proceeded through the federal district court or decree court. The merits of the case have gradually come into focus. The presiding judge died. Judge Robert Jones took over the case and dismissed the public trust claim for what Herskovits says were erroneous reasons. 

“He did the same to the water rights claims that the Walker River Paiute tribe and the United States Government had asserted,” Herskovits said. “So all of that went to the Ninth Circuit (Court of Appeals). And that’s how this came to the point where a particular question, the Ninth Circuit reversed Judge Jones on a number of the bases of his dismissal of the public trust claim and then sent this, sent really two questions to the Nevada Supreme Court.”

“Walker Lake Level 1969” by 666isMONEY ☮ ♥ & ☠ is licensed under CC BY-SA 2.0

The initial question for Nevada’s highest court was broad in scope. Does the public trust doctrine apply to water rights already adjudicated or allocated under the prior appropriation system of water rights and to what extent? 

“The Nevada Supreme Court answered that question in the negative, well, partially in the positive and partially in the negative,” Herskovits said. “It said that the public trust doctrine applies to all water rights and waters in the state of Nevada, including those water rights that are previously settled or adjudicated, or in some other way allocated under the state statutory system, or more generally, the prior appropriation system of water law. 

“But then it said in the negative, that the application of the public trust doctrine to those rights did not allow for a reallocation of those rights. The court did not go beyond that and say that other forms of managing a water resource such as a groundwater basin or a river system … there are many ways in which that can be done.” 

Herskovits says the state Supreme Court has provided enough information for the 9th Circuit Court to send the case back to the district court where the merits of the public trust claim can be fully, and maybe finally, addressed. Ultimately, the decree court could mandate how water is managed in the Walker River basin to ensure the lake is protected under the public trust doctrine. 

“There is much authority, both in statutory law and previous case law from Nevada, making it crystal clear that the state, and generally that means the State Engineer in Nevada, has the authority and a duty to manage those water resources and water rights in such a way as to protect the public or general welfare and as the Nevada State Supreme Court, characterized it, consistently fulfilling or protecting the public trust in the administration of water rights.”

But Herskovits was clear to say that he would not presume how the 9th Circuit Court or the district court would rule, and more, he would not venture a timeline for the legal process to play itself out.

Buying Land and Water Rights

In recent years, the Walker Basin Conservancy has purchased land and associated water rights with the intention of adding the water to the lake but has yet to be able to redirect the water. 

“The Walker Basin Conservancy has purchased 46 percent of enough water from willing sellers to try to help save the lake,” Bunch said. “They haven’t been able to get it all yet, but they bought 46 percent. 

“But this is all tied up in the State Engineer’s office. He’s only let like 1 percent come through because he has to hold public hearings on whether or not ag wants this water to come down (to the lake). 

“The Conservancy purchased the water from willing sellers, so hopefully that some of these decisions that come out of Supreme Court and also hopefully come out of the district court will inform the State Engineer. This water that has been purchased can go to the lake. It is purchased for the lake by these people from a willing seller, so send it. So we’re hoping that’s the way it comes out.” 

Tourism revenue and the ecological health of the lake are related. With majestic Mount Grant as a 12,000-foot tall backdrop, Bunch says the fishing is good even though there aren’t any fish.  

“At one time there was a study done by the state. And at that time that the study was done, I want to say it was in the mid ‘90s. Fifty, 55 percent of the economy of Mineral County is based off the lake, came from Walker Lake, from people fishing, from people waterskiing, from people buying fuel, from people buying food, to go out and enjoy Walker Lake.  

“Well now that the fishing has dropped off … well, fishing is still good, you just don’t catch anything because there’s no fish here.  

“Until we got the last two years, we’ve had good water, we’ve had some water come in and it’s brought the lake back up a ways … I think it’s come up 10 feet total in two years. 

“With the freshwater laying on top of the saline water, and then this year with the COVID closures of all lakes and reservoirs, Walker Lake stayed open. We had a big influx of people find that the lake was still here and it’s still good to go and can still … with the fresh water that we’ve received, it was okay to go swimming in and swimming and boating so the usage picked back up, but nothing like it used to be.” 

The Walker River Paiute tribe has the senior water rights on the river dating to 1859 and is pursuing its own settlement regarding Walker River water. Are the aims of the public trust lawsuit and the tribe’s legal goals in conflict or consort? 

“Generally speaking, the relationship between Mineral County and the Walker Lake Working Group have been pursuing this public trust claim and the tribe has been pursuing its own appropriative water rights claim is a very friendly, cooperative one,” Herskovits said. “And although the objectives of our separate claims are different, they’re largely harmonious. 

“The lake is of tremendous importance and significance to the tribe. And I think in the tribe’s view probably, it’s accurate, they are the original, ultimate stewards of Walker Lake, and to them it was sacred and something to be maintained and respected and cherished. So they’re, I think, very interested in seeing the lake restored.“ 

“Shores of Walker Lake – Paviotso,” 1924 – photo: Edward S. Curtis/Library of Congress

Should the district federal court reapportion water rights under the public trust doctrine, would the tribe’s water rights be compromised?  

“I think that the tribe has the senior most water rights in the basin. And our view is that it would not be appropriate or necessary for the tribe’s water rights, because the tribe arguably has very meager water rights for its ultimate needs or potential uses already, but it has the most senior water rights, I’m not sure that there would need to be any kind of modification that would affect or restrict those water rights,” Herskovits said. 

What the courts will ultimately decide is at this point uncertain, though Herskovits was willing to speculate that the public trust claim will in no way diminish the tribe’s present and future claims on Walker River water. 

“The types of management regime changes, the remedies that we hope will be considered and ultimately implemented by the district court in this case, I don’t think they would undermine or impair or in any way lessen the tribes water rights, either the water rights that they already have or any new water rights they might obtain through their own claim.

“So I don’t think there’s anything mutually inconsistent and I would think that pretty much all the remedies we seek under the public trust doctrine would be neutral or would enhance parts of the river that would benefit the tribe and the reservation.” 

It is Simeone Herskovits’ job to fully plumb the gory legal details of the Walker Lake public trust case. But before our interview ended, Herskovits wanted to make sure to emphasize that the lake is much more than briefs, testimony and court rulings. 

“I want to emphasize what a remarkable resource Walker Lake was,” Herskovits said. “It still is extraordinarily beautiful. But it’s lost a great deal of its biological functionality and its recreational functionality and of course, economic utility, because of its degradation, because of the deprivation of even a modest, minimally adequate level of inflow. 

“I think it’s really a high priority, it ought to be a high priority, to find a way without imposing impermissible harms, or outright elimination of water rights, wholesale, but in a way that is reasonable with regard to the upstream users of water interest, but still acknowledges and restores the lake so that it can be a beautiful and useful and valuable natural resource in a very arid state and part of the country.”

Music credits as reported to the Public Radio Exchange, in order of appearance:  

Ambient recording of the Walker River and other non-musical recordings by Brian Bahouth 

Song: Summer Lightning
Artist: Boards of Canada
Album: Tomorrow’s Harvest
Label: Warp
Date: 2013
Duration: 1:26 

Song: White Cyclosa
Artist: Boards of Canada
Album: Tomorrow’s Harvest
Label: Warp
Date: 2013
Duration: 2:33 

Song: Eyesdown
Artist: Boards of Canada
Album: Tomorrow’s Harvest
Label: Warp
Date: 2013
Duration: 2:13 

Song: New Seeds
Artist: Boards of Canada
Album: Tomorrow’s Harvest
Label: Warp
Date: 2013
Duration: 1:37 

Song: Animals 
Artist: Boards of Canada
Album: Tomorrow’s Harvest
Label: Warp
Date: 2013
Duration: 1:32 


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