                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS
                                                                          FILED
                              FOR THE NINTH CIRCUIT
                                                                           MAY 22 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MONO COUNTY, County Counsel,                     No.   15-16342

                Plaintiff-Appellee,              D.C. No.
                                                 3:73-cv-00128-RCJ-WGC
MINERAL COUNTY,

                Intervenor-Plaintiff-            MEMORANDUM*
                Appellant,

WALKER LAKE WORKING GROUP,

                Defendant-Appellant,

          and

UNITED STATES OF AMERICA,

                Plaintiff,

WALKER RIVER PAIUTE TRIBE,

                Intervenor-Plaintiff,

          v.

WALKER RIVER IRRIGATION
DISTRICT; NEVADA DEPARTMENT
OF WILDLIFE; FENILI FAMILY


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
TRUST, c/o Peter Fenili and Veronica
Fenili, Trustees; SIX N RANCH, INC., c/o
Richard and Cynthia Nuti; MICHAEL
NUTI; NANCY NUTI; RALPH E. NUTI;
MARY E. NUTI; LAWRENCE M. NUTI;
LESLIE NUTI; MICA FARMS, LLC, c/o
Mike Faretto; JOHN AND LURA
WEAVER FAMILY TRUST, c/o Lura
Weaver, Trustee; SMITH VALLEY
GARAGE, INC., c/o Dan Smith and
Shawna Smith; DONALD GIORGI;
LORIE MCMAHON; MERLE
MCMAHON; CENTENNIAL
LIVESTOCK; LYON COUNTY;
ANNETT’S MONO VILLAGE; F.I.M.
CORPORATION; R.N. FULSTONE
COMPANY; JAMES T. FOUSEKIS,
Trustee; CHRIS H. GANSBERG, Jr.;
FAYE E. GANSBERG; TODD
GANSBERG; HUNEWILL LAND &
LIVESTOCK CO., INC.; DAVID
SCEIRINE; PAMELA HAAS; VIRGINIA
LAKE MUTUAL WATER COMPANY,

           Defendants-Appellees.

                 Appeal from the United States District Court
                          for the District of Nevada
                 Robert Clive Jones, District Judge, Presiding

                   Argued and Submitted August 30, 2017
                           Pasadena, California

Before: TASHIMA, FISHER and BYBEE, Circuit Judges.




                                      2
      Mineral County appeals the dismissal of its claim that Nevada’s public trust

doctrine requires the modification of the 1936 Walker River Decree to ensure

minimum water flows reach Walker Lake. In this memorandum, we address only

the issue of standing. We reserve judgment on the remaining issues raised in this

appeal pending certification to the Nevada Supreme Court.1 We have jurisdiction

under 28 U.S.C. § 1291. We review standing de novo, see Bernhardt v. County of

Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002), and we hold the district court erred

in dismissing for lack of standing.

      1. The district court erred by concluding Mineral County lacked standing

because it sought relief solely on behalf of the general public as parens patriae.

Mineral County did not seek relief solely on behalf of the general public. Mineral

County also asserted a public trust claim on its own behalf, and Mineral County

may sue to vindicate its own interests. See United States v. City of Pittsburg, 661

F.2d 783, 787 (9th Cir. 1981) (explaining that political subdivisions “may ‘sue to

vindicate . . . their own proprietary interests’” (quoting In re Multidistrict Vehicle

Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973))).


      1
         Concurrent with this memorandum, we file an order certifying a question
to the Nevada Supreme Court. Mineral County’s public trust claim for the
reallocation of the waters of Walker River and the Takings Clause claims under
both federal and Nevada law are held in abeyance pending the result of
certification.
                                           3
      2. Mineral County meets each requirement for Article III standing: “injury,

causation, and redressability.” City of Oakland v. Lynch, 798 F.3d 1159, 1163 (9th

Cir. 2015). To satisfy these elements, Mineral County

             must demonstrate that “(1) it has suffered an ‘injury in fact’
             that is (a) concrete and particularized and (b) actual or
             imminent, not conjectural or hypothetical; (2) the injury is
             fairly traceable to the challenged action . . . ; and (3) it is
             likely, as opposed to merely speculative, that the injury will
             be redressed by a favorable decision.”

City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (quoting Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81

(2000)).

      Injury in fact: Political subdivisions may establish injury in fact by asserting

harm to their own proprietary interests – particularly economic injury such as the

loss of tax revenues. See, e.g., City of Oakland, 798 F.3d at 1164 (“An expected

loss of tax revenue can constitute a sufficient injury [to a city] for purposes of

Article III standing.”); City of Sausalito, 386 F.3d at 1197, 1199 (holding

“Sausalito may sue to protect its own ‘proprietary interests’” and that its asserted

“management, public safety, economic, aesthetic, and natural resource harms” each

constituted Article III injury); accord City of Pittsburg, 661 F.2d at 787.




                                           4
      Even ignoring the alleged harm to its aesthetic and natural resource interests,

Mineral County alleged economic harm adequate to establish Article III injury.

The County’s amended complaint in intervention alleged that “[a]ctivities and

businesses attributable to the presence and use of Walker Lake represent[]

approximately 50% of the economy of Mineral County.” It also alleged the “total

loss of flows from Walker River into Walker Lake has degraded the quality of

water in Walker Lake substantially,” and that minimum flows into Walker Lake are

necessary for the “maintenance of the economy of Mineral County.” The County

also filed an affidavit in connection with its motion to intervene asserting that “loss

of water in the Lake” has decreased “fishing and other recreational activities,” and

that much of Mineral County’s tax revenue is tied to these activities. Under City of

Sausalito and City of Oakland, these harms to Mineral County’s economy establish

Article III injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)

(concluding “general factual allegations of injury” are sufficient at the pleading

stage).

      Causation: These allegations also demonstrate causation because the

alleged harms are “fairly traceable” to the loss of water in Walker Lake, which is

caused at least in part by upstream appropriators.2
      2
          Although the parties dispute the cause of Walker Lake’s troubles, it seems
                                                                        (continued...)
                                           5
      Redressability: Finally, Mineral County’s requested relief – flows adequate

to restore the water level and quality in Walker Lake – would likely redress its

injuries. As alleged, the harm to fishing, recreational and other activity in Walker

Lake is directly related to the decline in water level and the accompanying

degradation in water quality.

      Walker River Irrigation District (WRID) disputes the redressability prong of

standing, contending that even if the public trust doctrine applies, this court (or the

Nevada Supreme Court) cannot order the Nevada legislature to amend Nevada’s

water laws, and the legislature would be unlikely to do so.

      WRID is correct that standing may be denied when “the prospect of remedial

benefit seems too remote [or] independent constraints foreclose any effective

remedy.” 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 3531.6 & nn.12, 13 (3d ed. 2017) (collecting cases). That is not the

case here, however. WRID sets out one possible outcome on the public trust issue.

But it is certainly plausible, under the public trust doctrine, that the court would

require officials to reserve whatever flows were necessary to uphold the public

trust as to Walker Lake. No independent constraint would preclude that outcome.


      2
        (...continued)
clear that upstream appropriations play at least some part, along with declining
precipitation levels and natural lake recession over time.
                                           6
Mineral County, moreover, does not challenge Nevada’s statutory water laws, and

its requested relief – a modification of the Decree – would not require the

legislature to act. Thus, Mineral County’s requested remedy is among the

“remed[ies] that the court [would be] prepared to give.” Id.; see also id.

(discussing the “risk that standing will be denied because hasty remedial

determinations made at a preliminary stage do not reflect the full inventiveness that

could be exhibited after trial”).

      The district court thus erred in holding Mineral County lacked standing to

bring its public trust claim.

      3. The district court concluded Walker Lake is not within the Walker River

Basin, a determination Mineral County appeals. Although the question is not

disputed by the parties in this action, we have contemporaneously decided in

United States v. United States Board of Water Commissioners, No. 15-16316, that

Walker Lake is within the Walker River Basin.

      4. The Clerk is advised that this is not a dispositive memorandum. This

appeal remains pending, but will be administratively closed as explained in our

concurrently filed Certification Order.




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