                423, 424-25 (1993), this court recognized that a district court order
                remanding a decision to an administrative agency without finally
                resolving the substantive issues before the court was not reviewable on
                appeal as a final judgment.      See also Clark Cnty. Liquor & Gaming
                Licensing Bd. v. Clark, 102 Nev. 654, 658, 730 P.2d 443, 446 (1986)
                (concluding that this court lacked jurisdiction to consider an appeal from a
                district court order remanding a matter to the administrative agency to
                conduct discovery).
                             Here, the order issued by appellant/cross-respondent Jason
                King, the Nevada State Engineer, concluded that it would be "premature
                to attempt to set quantitative standards or triggers for mitigation actions
                in the Management Plan at this time," while also referencing statements
                from two witnesses indicating that the need for mitigation should be
                assessed on a case-by-case or site-by-site basis, Although the district court
                acknowledged King's conclusions in this regard, it further noted that King
                had also asserted that appellant/cross-respondent the Southern Nevada
                Water Authority had presented a great deal of data that provided a basis
                for making sound decisions on the mitigation issue. As a result, the
                district court found that, if King "has enough data to make informed
                decisions, setting standards and 'triggers' is not premature." The court
                further found, as a corollary, that if King did not have enough data to set
                mitigation standards, then granting the appropriation was premature.
                Thus, because King's order declined to set objective standards regarding
                when mitigation would be required, the district court concluded that that
                order was incomplete and remanded the matter for resolution of this
                significant issue.



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                                 Insofar as the district court remanded this matter for the
                   State Engineer to resolve a substantive issue, we conclude that the district
                   court's order of remand was not an appealable, final judgment.             See
                   Greenspun, 109 Nev. at 1025, 862 P.2d at 424-25; Clark, 102 Nev. at 658,
                   730 P.2d at 446. Moreover, as no statute or court rule otherwise provides
                   for an appeal from a district court order such as the one at issue here, see
                   NRAP 3A(b) (listing orders and judgments from which an appeal may be
                   taken); Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678
                   P.2d 1152, 1153 (1984) (noting that this court has jurisdiction to consider
                   an appeal only when the appeal is authorized by statute or court rule); see
                   also Clark, 102 Nev. at 658, 730 P.2d at 446, we lack jurisdiction to
                   consider this appeal, and therefore order the appeal dismissed.
                                 It is so ORDERED.




                                                                                         J.
                   Parraguirre




                                            Gibbons




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                  PICKERING, J., dissenting:
                                The majority concludes that we lack jurisdiction because the
                  district court's order was not a final, appealable judgment. But the order,
                  taken together with the State Engineer's findings, demonstrates that the
                  district court's decision was substantively final as to the core issue
                  presented: Does substantial evidence support the State Engineer's
                  decision to grant Southern Nevada Water Authority's (SNWA)
                  applications under NRS 533.370? The district court found in the negative
                  on that issue and its finding depends on its legal determination as to the
                  underlying law.
                                The district court's order may on its surface indicate that the
                  district court remanded the matter for the State Engineer to consider
                  evidence it failed to consider, rendering the order not "final."    See State
                  Taxicab Auth. v. Greenspun,      109 Nev. 1022, 1024, 862 P.2d 423, 424
                  (1993) (order reversing agency's decision and remanding for the agency to
                  consider evidence it wrongfully refused to consider was not a final
                  judgment). On the last page of the order, the district court stated it would
                  not disturb the State Engineer's findings "save those findings that are the
                  subject of this Order," and "remanded" for the State Engineer to complete
                  four tasks:
                                1. The addition of Millard and Juab counties,
                                   Utah in the mitigation plan so far as water
                                   basins in Utah are affected by pumping of
                                   water from Spring Valley Basin, Nevada;
                                2. A recalculation of water available for
                                   appropriation from Spring Valley assuring that
                                   the basin will reach equilibrium between
                                   discharge and recharge in a reasonable time;
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                                 3. Define standards, thresholds or triggers so that
                                    mitigation of unreasonable effects from
                                    pumping of water are neither arbitrary nor
                                    capricious in Spring Valley, Cave Valley, Dry
                                    Lake Valley and Delamar Valley, and;
                                 4. Recalculate the appropriations from Cave
                                    Valley, Dry Lake and Delamar Valley to avoid
                                    overappropriations or conflicts with down-
                                    gradient, existing water rights.
                     The majority focuses upon the third directive—that the State Engineer
                     must set objective standards, thresholds or triggers for when mitigation
                     must occur, and holds that this substantive matter was therefore
                     remanded to the State Engineer to resolve. Majority at 2.
                                 As to this third directive, the State Engineer expressly found
                     that he did not have sufficient evidence to achieve it at the time he
                     granted the applications; rather, the State Engineer instead required
                     SNWA to conduct staged pumping, which he reasoned would allow the
                     interested parties to develop the specifics of any mitigation that may be
                     required to counteract any effects that are environmentally unsound or
                     that would conflict with existing rights under NRS 533.370(2). And, as
                     the majority recognizes, the district court found that if the State Engineer
                     "did not have enough data to set mitigation standards, then granting the
                     appropriation was premature." Majority at 2. It was because of the
                     prematurity of this grant that the district court also stated that "this
                     matter must be remanded to the State Engineer until objective standards
                     can be established and stated–as to when mitigation must occur."
                     Therefore, the district court's order held, in effect, that based upon the
                     evidence SNWA presented it, the State Engineer did not have sufficient
                     evidence to grant the applications. The district court's instructions as to
                     how the State Engineer might attempt to make up this factual
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                 insufficiency, or to allow the State Engineer to somehow hold the
                 applications until such evidence materialized, does not change the holding
                 that at the time the State Engineer made his decision it was not, in the
                 district court's view, supported by substantial, legally sufficient evidence.
                             As to the second instruction, the district court's express
                 holding that substantial evidence did not support the State Engineer's
                 finding that SNWA's Spring Valley appropriations were not against the
                 public interest effectively decided the issue: under NRS 533.370(2), the
                 State Engineer shall reject an application where "its proposed use or
                 change . . . threatens to prove detrimental to the public interest."
                 Notwithstanding the district court's attempt to remedy the situation by
                 ordering a remand for the State Engineer to recalculate the water
                 available in Spring Valley and to ensure that SNWA's Spring Valley
                 award is consistent with that availability, the district court's holding on
                 the matter necessarily answered, in the negative, the substantive question
                 of whether substantial evidence supported the State Engineer's decision to
                 grant SNWA's Spring Valley appropriation applications.
                             As to the district court's fourth instruction that the State
                 Engineer recalculate SNWA's appropriations from Cave Valley, Dry Lake,
                 and Delamar Valley to avoid overappropriations or conflicts with existing
                 water rights, inherent in this instruction, as well as the part of the order
                 that analyzed the issue, is the district court's determination that the State
                 Engineer's decision that SNWA's appropriations would                not   cause
                 overappropriation or conflict with existing rights was not supported by
                 substantial evidence. In other words, if the district court found that a
                 lesser appropriation to SNWA in these valleys is necessary to prevent
                 overappropriation or a conflict with existing rights, then it also necessarily

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                 found that the State Engineer was required to deny the applications. NRS
                 533.370(2) (State Engineer shall deny applications "where there is no
                 unappropriated water in the proposed source of supply, or where its
                 proposed use or change conflicts with existing rights"). Finally, the
                 remaining instruction, adding Millard County and Juab County to the
                 mitigation plan, is a nonstarter issue if, as the district court found, the
                 State Engineer's decision to grant SNWA's applications was not supported
                 by sufficient evidence such as to comply with NRS 533.270.
                             Thus, the district court reached the merits of the petition for
                 review and made a legal ruling as to the propriety of the State Engineer's
                 decision given the evidentiary record SNWA provided, which distinguishes
                 this order from at least one of the cases the majority relies upon.      See
                 Greenspun, 109 Nev. at 1025, 862 P.2d at 425 (district court did not review
                 the merits of the agency's decision).' That the district court attempted to
                 provide instructions as to how the State Engineer may grant the
                 applications if he were to issue a new decision regarding SNWA's
                 applications does not change that the district court determined substantial
                 evidence did not support the State Engineer's decision to grant the
                 applications, and effectively reversed the State Engineer. We have
                 reviewed similar decisions in the past, and thus they must have been final
                 judgments. See Office of State Eng'r v. Morris, 107 Nev. 699, 701, 819 P.2d
                 203, 204 (1991) (reviewing district court's decision that reversed the State

                       1 Clark  County Liquor and Gaming Licensing Board v. Clark
                 indicates only that the district court remanded the case and ordered the
                 agency to grant discovery, and this court summarily stated that the order
                 was not a final, appealable one. 102 Nev. 654, 658, 730 P.2d 443, 446
                 (1986). Though presumably the district court did not reach the merits, it
                 is not precisely clear.


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                 Engineer's decision because the findings were clearly erroneous and an
                 abuse of discretion); State v. Morros, 104 Nev. 709, 711, 766 P.2d 263, 265
                 (1988) (reviewing district court's decision that partially affirmed and
                 partially reversed the State Engineer's grant of various applications).
                             Furthermore, other courts have recognized that a district
                 court's order remanding to an agency must be considered practically when
                 determining whether the order is final and therefore appealable.    See, e.g.,
                 Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011). For
                 example, an order of remand may be final where "(1) the district court
                 conclusively resolves a separable legal issue, (2) the remand order forces
                 the agency to apply a potentially erroneous rule which may result in a
                 wasted proceeding, and (3) review would, as a practical matter, be
                 foreclosed if an immediate appeal were unavailable."         Id.; Edgewater
                 Found. v. Thompson, 350 F.3d 694, 696 (7th Cir. 2003) ("Remands usually
                 are not appealable, because they are not "final" decisions; but remands
                 that otherwise may escape appellate review may be reviewable
                 immediately.").
                             All three of these considerations are present here. First, as
                 explained above, the district court resolved the main legal issue
                 underlying this appeal: whether the State Engineer may, consistent with
                 NRS 533.370(2), leave the determination of how and when mitigation will
                 occur for a future determination. Second, the appellants argue that the
                 district court's rulings would force the State Engineer to make rulings
                 under legal standards he considers erroneous. Finally, there is effectively
                 no way for the State Engineer to ensure that the remand order and its
                 legal rulings will ultimately be reviewed because it appears the State
                 Engineer cannot appeal his own decision, unless he can fall within the

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                 definition of a person aggrieved by his decision. NRS 533.450(1); see also
                 Travis v. Sullivan, 985 F.2d 919, 923 (7th Cir. 1993) (finding order
                 remanding to agency appealable because if the agency representative
                 complied with the district court's order to conduct a new hearing and
                 make new findings, the order would be effectively unreviewable; if the
                 agency representative ultimately awarded the applicant benefits then the
                 representative could not appeal his own decision, but if the representative
                 denied the benefits the resulting appeal would concern the merits of the
                 application's claim, effectively rendering the remand order moot and
                 therefore unreviewable); Daviess Cnty. Hosp. v. Bowen, 811 F.2d 338, 342
                 (7th Cir. 1987) (holding similarly).
                             Applying a functional and practical view of finality, Bally's
                 Grand Hotel & Casino v. Reeves, 112 Nev. 1487, 1488, 929 P.2d 936, 937
                 (1996), I would find that the district court's order constituted a final,
                 appealable decision on the merits. Thus, I respectfully dissent.




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                cc:   Chief Judge, The Seventh Judicial District Court
                      Hon. Robert E. Estes, Senior Judge
                      Attorney General/Carson City
                      Dana R. Walsh
                      Lewis Roca Rothgerber LLP/Las Vegas
                      Gregory J. Walch
                      Taggart & Taggart, Ltd.
                      Iris Thornton
                      Simeon M. Herskovits
                      Alexander, Berkey, Williams & Weathers LLP
                      EchoHawk Law Offices
                      Weinstein, Pinson & Riley
                      J. Mark Ward
                      Rhodes Law Office, Ltd.
                      Lionel Sawyer & Collins/Las Vegas
                      Kaempfer Crowell/Reno
                      Attorney General/Reno
                      White Pine County Clerk




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