                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                 J.W. BENTLEY AND MARYANN               No. 64773
                 BENTLEY TRUSTEES OF THE
                 BENTLEY FAMILY 1995 TRUST; JOY
                 SMITH; DANIEL BARDEN; AND
                 ELAINE BARDEN,
                 Appellants,
                 vs.
                 STATE OF NEVADA, OFFICE OF THE
                                                            FILED
                 STATE ENGINEER; DONALD S                    JUL 1 4 2016
                 FORRESTER AND KRISTINA M.
                                                            TRACE K. LINDEMAN
                 FORRESTER; HALL RANCHES, LLC;           iCyLERO. F SUPREME COURT

                 THOMAS J. SCYPHERS AND                       DEPUTY CLERK
                 KATHLEEN M. SCYPHERS; FRANK
                 SCHARO; SHERIDAN CREEK
                 EQUESTRIAN CENTER, LLC; AND
                 RONALD R. MITCHELL AND GINGER
                 G. MITCHELL,
                 Respondents.
                 J.W. BENTLEY; MARYANN BENTLEY,         No. 66303
                 TRUSTEES OF THE BENTLEY
                 FAMILY 1995 TRUST; JOY SMITH;
                 DANIEL D. BARDEN; AND ELAINE
                 BARDEN,
                 Appellants,
                 vs.
                 HALL RANCHES, LLC; THOMAS J.
                 SCYPHERS; KATHLEEN M.
                 SCYPHERS; FRANK SCHARO;
                 SHERIDAN CREEK EQUESTRIAN
                 CENTER, LLC, A NEVADA LIMITED
                 LIABILITY COMPANY; DONALD S.
                 FORRESTER; KRISTINA M.
                 FORRESTER; RONALD R. MITCHELL;
                 AND GINGER G. MITCHELL,
                 Respondents.
                 J.W. BENTLEY; AND MARYANN              No. 66932
                 BENTLEY, TRUSTEES OF THE
                 BENTLEY FAMILY 1995 TRUST,
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                    Appellants,
                    vs.
                    THE STATE OF NEVADA STATE
                    ENGINEER; HALL RANCHES, LLC;
                    THOMAS J. SCYPHERS; KATHLEEN
                    M. SCYPHERS; FRANK SCHARO;
                    SHERIDAN CREEK EQUESTRIAN
                    CENTER, LLC; DONALD S.
                    FORRESTER; KRISTINA M.
                    FORRESTER; RONALD R. MITCHELL;
                    AND GINGER G. MITCHELL,
                    Respondents.

                                            ORDER OF AFFIRMANCE

                                These are consolidated appeals from district court orders
                    denying petitions for judicial review of the State Engineer's water use
                    rotation schedules (Docket No. 64773) and awarding costs (Docket No.
                    66303) and from a district court decree affirming, as modified, the State
                    Engineer's order of determination (Docket No. 66932) in a water rights
                    matter. Ninth Judicial District Court, Douglas County; Nathan Tod
                    Young and David R. Gamble, Judges.
                                Appellants J.W. Bentley and Maryann Bentley, trustees of the
                    Bentley family trust (collectively, the Bentleys); Joy Smith; Daniel and
                    Elaine Barden; and respondents Donald S. and Kristina M. Forrester; Hall
                    Ranches, LLC; Thomas J. and Kathleen Scyphers; Frank Scharo; Sheridan
                    Creek Equestrian Center, LLC; and Ronald R. and Ginger G. Mitchell
                    (collectively, Intervenors) are water rights holders of equal priority of the
                    waters of North Sheridan Creek in Carson Valley. The North Sheridan
                    Creek is the northern branch of the Sheridan Creek. In 1987, a petition
                    was filed with the State Engineer requesting a determination of the
                    relative rights of the claimants to the waters of several stream systems

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                  flowing into the Carson Valley, including the North Sheridan Creek. In
                  2008, the State Engineer issued a Final Order of Determination (FOD)
                  regarding these stream systems and filed it with the district court. The
                  district court divided the proceeding into six groups based on the common
                  water source in each set of exceptions filed by water users protesting the
                  FOD, with the waters of North Sheridan Creek adjudicated under subpart
                  D of the overall decree. In the FOD, the State Engineer indicated that in
                  times of low flow from the North Sheridan Creek the water users would
                  have to share the shortage through the imposition of a rotation schedule.
                              As provided under NRS 533.170, the Bentleys filed a notice of
                  exceptions to the FOD with the district court, asserting that they had the
                  right to continuously divert water to their ponds under a 1987 diversion
                  agreement and, thus, could not be subjected to a rotation schedule,
                  whereby the use of the full flow of the North Sheridan Creek was rotated
                  among the water rights holders. The district court found that Intervenors
                  had an interest in the proceedings, were aligned with the State Engineer,
                  and supported the FOD against the Bentleys' exceptions. Therefore, the
                  district court permitted the Intervenors to intervene in the case and to
                  challenge the Bentleys' right to enforce the diversion agreement, as
                  opposed to filing exceptions to the FOD itself. The Intervenors alleged
                  that the Bentleys' ponds consumed excessive amounts of water, which
                  resulted in reduced downstream flows to their properties, and that the
                  diversion agreement was invalid.
                              In 2010, the district court imposed an interim rotation
                  schedule on the water users, although the record does not reflect the
                  details of this rotation schedule. After a trial on the Bentleys' notice of
                  exceptions, the district court issued its Findings of Fact, Conclusions of

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                Law, Order and Judgment as to subpart D, which affirmed, as modified,
                the FOD. As relevant here, the FOD was modified to (1) declare the
                diversion agreement to be unenforceable, invalid, and ineffective, (2)
                require the State Engineer to impose a rotation schedule upon the North
                Sheridan Creek water rights holders when the flow of the creek falls below
                2.0 cubic feet per second (cfs), and (3) award Intervenors their costs and
                reasonable attorney fees. The district court based its decision on a finding
                that whenever the North Sheridan Creek flow is below 2.0 cfs, constant
                flow to the Bentleys' ponds injured other water users and a rotation
                schedule was necessary to avoid that injury.
                             Consistent with the district court's judgment, in 2012, the
                State Engineer notified the North Sheridan Creek water rights holders
                that the measured flow had dropped below 2.0 cfs and that a rotation
                schedule was in effect. A rotation schedule was also in effect during the
                2013 irrigation season. The Bentleys, Smith, and the Bardens separately
                petitioned the district court for judicial review of the 2012 rotation
                schedule. In 2013, they jointly petitioned the district court for judicial
                review of the 2013 rotation schedule. The 2012 and 2013 petitions were
                consolidated, and on November 27, 2013, the petitions were denied by the
                district court, which summarily stated that it did not find the rotation
                order to be illegal and that it was not the court's function to readdress the
                prior judgment entered as to subpart D. The Bentleys, Smith, and the
                Bardens have appealed the district court's decision in Docket No. 64773.
                The district court subsequently awarded costs to Intervenors, and the
                Bentleys, Smith, and the Bardens have appealed that decision in Docket
                No. 66303.



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                            In 2014, the district court issued a final decree regarding the
                relative water rights of the Carson Valley stream systems, which included
                its 2012 decision regarding North Sheridan Creek, adjudicated under
                subpart D. The Bentleys have appealed the decree in Docket No. 66932,
                and that appeal has been consolidated with the appeals in Docket Nos.
                64773 and 66303.
                            On appeal, the Bentleys, Smith, and the Bardens raise the
                following issues: (1) whether the district court had jurisdiction to impose a
                rotation schedule; (2) whether the State Engineer had the authority to
                impose a nonconsensual rotation schedule, acted arbitrarily and
                capriciously in imposing a rotation schedule, and did not have substantial
                evidence to support its decision to impose a rotation schedule; (3) whether
                the 1987 diversion agreement is invalid and/or was breached by the
                Bentleys; and (4) whether the district court abused its discretion in
                awarding attorney fees and costs to Intervenors.
                      The proceedings were statutory in nature
                            There are two types of water law adjudications: statutory and
                equitable. James H. Davenport, Nevada Water Law 98 (Colo. River
                Comm'n of Nev. 2003). Before enactment of this State's water law, which
                created the statutory adjudication process, the settlement of disputes
                between competing water claimants upon the same stream or stream
                system was conducted by the courts pursuant to their equitable
                jurisdiction. See Bliss v. Grayson, 24 Nev. 422, 455, 56 P. 231, 241 (1899)
                ("[T]he foundation of the right to invoke the equity powers of the court, in
                restraint of nuisances to water, before the enactment of our statute, was
                based almost solely upon the infringement of riparian rights."). Equitable
                jurisdiction is typically invoked by the filing of a quiet title action.   See
                Margrave v. Dermody Props., Inc., 110 Nev. 824, 827, 878 P.2d 291, 293
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                (1994) (stating that a water rights holder invoked equity jurisdiction by a
                quiet title action); see also Dermody v. City of Reno, 113 Nev. 207, 209-10,
                931 P.2d 1354, 1356 (1997) (stating the same).
                            Statutory adjudications occur when the State Engineer files
                with the district court an FOD as to a water system. Davenport, supra, at
                104. The purpose of a statutory adjudication is to have water rights
                "adjudicated in such a proceeding as to terminate for all time litigation
                between all such water users."   Ruddell v. Sixth Judicial Dist. Court, 54
                Nev. 363, 367, 17 P.2d 693, 695 (1933). In the current case, the State
                Engineer entered an FOD and the Bentleys filed exceptions thereto
                determining the water rights of the North Sheridan Creek users and filed
                the FOD with the district court pursuant to NRS 533.090 and NRS
                533.165. Accordingly, this is a statutory adjudication, not an equitable
                adjudication.
                      The district court had jurisdiction to consider the issue of whether a
                      rotation schedule should be imposed
                            NRS 533.170(2) states that "Mlle order of determination by
                the State Engineer and the statements or claims of claimants and
                exceptions made to the order of determination shall constitute the
                pleadings, and there shall be no other pleadings in the cause." "It
                is . . . settled in this state that the water law and all proceedings
                thereunder are special in character and the provisions of such law not only
                lay down the method of procedure, but strictly limit it to that provided."
                G. & M. Props. v. Second Judicial Dist. Court, 95 Nev. 301, 305, 594 P.2d
                714, 716 (1979) (quotation omitted). Therefore, the district court only has
                jurisdiction in a statutory adjudication to consider issues raised in the
                proper pleadings established by statute.


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                             In this case, the establishment of a mandatory rotation
                 schedule was raised in the FOD and exceptions. The FOD stated, in
                 relevant part, that
                             [t]he diversion rates for the north and south split
                             of Sheridan Creek are based on a spring and early
                             summer average stream flow of 3.5 c.f.s. Flow and
                             diversion rates during periods of drought and
                             middle to late irrigation season will generally be
                             less than the rates determined in the Preliminary
                             Order of Determination. Therefore, all parties will
                             have to share the water shortage during periods of
                             low flow. The total diversion from either the north
                             or south split can be used in its entirety in a
                             rotation system of irrigation.
                 (Emphasis added). By stating that "all parties will have to share the
                 water shortage" during times of low flow through "a rotation system of
                 irrigation," the State Engineer indicated that a mandatory rotation
                 schedule would be imposed in times of low flow.
                             This appears to be the Bentleys' interpretation of the FOD as
                 well. In their notice of exceptions, the Bentleys' Exception No. 1 argued
                 that their diversion rights "should not be subject to rotation" and that "the
                 Bentley property should be exempt from the rotation" that the "Office of
                 the State Engineer is likely to impose." Therefore, because the rotation
                 schedule was properly raised in the FOD and the Bentleys' exceptions, we
                 hold that the district court had jurisdiction to consider this issue.
                             The pre-trial stipulation did not preclude the district court
                             from imposing a mandatory rotation schedule
                             The Bentleys argue that because the parties stipulated that a
                 rotation schedule would not be imposed, the district court could not later
                 impose one. The parties stipulated, in relevant part,
                             that the State Engineer would not attempt to
                             include a rotation schedule in the Decree itself,
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                                  but that the provisions of NRS 533.075 and the
                                  order of this Court would be used to determine
                                  when and if a rotation schedule is needed to
                                  efficiently use the waters of the State of Nevada.
                                  However, Bentley reserves all objections to the
                                  imposition of a rotation schedule, including
                                  objection about the statutory authority to do so.
                      Thus, the stipulation can be reasonably interpreted to mean that the
                      parties only stipulated that a specific rotation schedule, such as the times
                      each water rights holder would get the full stream in the rotation, would
                      not be put into the Decree itself, not that a rotation schedule could not be
                      imposed by the district court. Otherwise, the second part of the
                      stipulation would lack meaning and the Bentleys would have no need to
                      reserve objections to the imposition of a rotation schedule if the parties
                      had stipulated as they suggest. Therefore, we hold that the pre-trial
                      stipulation did not affect the jurisdiction of the district court to consider
                      imposing a mandatory rotation schedule. 1




                             'The dissent argues that the issue of the imposition of a mandatory
                      rotation schedule was not fully developed in the proceedings before the
                      district court. We disagree. Evidence was presented by the State
                      Engineer that he performed seepage tests on the Bentleys' ponds which
                      showed that the Bentleys consumed more than their proportional share of
                      water when they received a continuous flow. Testimony was also
                      presented by the Intervenors that they received reduced downstream flows
                      to their properties after the Bentleys' new pond was constructed, but, after
                      an interim rotation schedule was implemented, they were able to fully
                      water their properties. This clearly shows that imposition of a mandatory
                      rotation schedule was developed below and that a rotation schedule was
                      necessary for all water users to receive their apportioned share of the
                      water rights. To suggest otherwise is not accurate.


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                 The district court had jurisdiction to impose a rotation schedule
                             The Bentleys argue that although NRS 533.075 authorizes
                 water rights holders to rotate their use of a water supply to which they are
                 collectively entitled, it does not authorize the district court or the State
                 Engineer to impose a rotation schedule in a water rights adjudication
                 process to force nonconsenting water users to participate in rotation, nor
                 does any other provision in NRS Chapter 533. The Bentleys also argue
                 that the district court did not have jurisdiction to impose a rotation
                 schedule as part of a statutory adjudication. 2
                       NRS 533.075 does not limit the power of the district court to impose a
                       rotation schedule
                             "When a statute is clear and unambiguous, we give effect to
                 the plain and ordinary meaning of the words and do not resort to the rules
                 of construction." Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790
                 (2010).
                             NRS 533.075 states:
                             To bring about a more economical use of the
                             available water supply, it shall be lawful for water
                             users owning lands to which water is appurtenant
                             to rotate in the use of the supply to which they

                       2 The Bentleys also argue that the rotation schedule allows
                 Intervenors to use commingled water from Gansberg Spring, to which they
                 have no rights. The water of Gansberg Spring does not flow at the same
                 rate at all times of the year and generally contributes a small and variable
                 percentage of the total flow. The district court found that it did not justify
                 a water commissioner to regulate the flow separately. Because the
                 Bentleys provide no authority for why the district court's decision
                 regarding Gansberg Spring should be overturned, we decline to consider
                 this issue. See Schwartz v. Eliades, 113 Nev. 586, 590 n.3, 939 P.2d 1034,
                 1036 n.3 (1997) ("This court will not consider an issue if no relevant
                 authority is presented on appeal.").


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                                   may be collectively entitled; or a single water user,
                                   having lands to which water rights of a different
                                   priority attach, may in like manner rotate in use,
                                   when such rotation can be made without injury to
                                   lands enjoying an earlier priority, to the end that
                                   each user may have an irrigation head of at least 2
                                   cubic feet per second.
                                   The Bentleys argue that because NRS 533.075 only authorizes
                    the imposition of a rotation schedule to situations where all of the water
                    users agree to it, the district court had no authority to impose an
                    involuntary rotation schedule. However, while it is true that NRS 533.075
                    only explicitly authorizes voluntary rotation schedules, it also does not
                    limit the power of the district court to impose an otherwise involuntary
                    rotation schedule after the jurisdiction of the district court has been
                    properly invoked. As noted above, the FOD and the exceptions filed
                    thereto, afford the district court jurisdiction in this matter to consider the
                    imposition of a rotation schedule. Therefore, the Bentleys' reliance on
                    NRS 533.075 is misplaced.
                          The State Engineer acted within his capacity as an officer of the
                          court when he implemented the rotation schedule
                                   In addition to challenging the district court's authority to
                    impose a rotation schedule, the Bentleys, Smith, and the Bardens also
                    challenge the State Engineer's enforcement of the district court's order. 3
                    Smith and the Bardens argue that the State Engineer did not have the
                    authority to impose a nonconsensual rotation schedule, acted arbitrarily
                    and capriciously in imposing a rotation schedule, and did not have
                    substantial evidence to support its decision to impose a rotation schedule.


                          3 This
                               was the subject of the two petitions for judicial review whose
                    appeals were consolidated with the current appeal.


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                                NRS 533.220(1) states:
                                From and after the filing of the order of
                                determination in the district court, the
                                distribution of water by the State Engineer or by
                                any of the State Engineer's assistants or by the
                                water commissioners or their assistants shall, at
                                all times, be under the supervision and control of
                                the district court. Such officers and each of them
                                shall, at all times, be deemed to be officers of the
                                court in distributing water under and pursuant to
                                the order of determination or under and pursuant
                                to the decree of the court.
                    (Emphasis added.) Thus, when the State Engineer implements an order of
                    determination or decree, it is acting as an officer of the court.
                                Here, the district court's order as to subpart D stated that
                    "[w]hen the combined flow from the North Diversion of Sheridan Creek
                    and tributaries drops below 2.0 cfs, the State Engineer shall impose a
                    rotation schedule." (Emphasis added.) Thus, when the North Sheridan
                    Creek flow fell below 2.0 cfs, the State Engineer, acting as an officer of the
                    court, was required to impose a rotation schedule. Smith and the Bardens
                    do not dispute that the State Engineer's measurement of the North
                    Sheridan Creek flow or the State Engineer's apportionment of water in the
                    rotation schedule was incorrect. Rather, they argue that the State
                    Engineer did not have the authority to impose a nonconsensual rotation
                    schedule, acted arbitrarily and capriciously in imposing a rotation
                    schedule, and did not have substantial evidence to support its decision to
                    impose a rotation schedule. These are arguments more appropriate for
                    challenging the validity of the district court's order, not the State
                    Engineer's implementation of its order. When implementing the district
                    court's order to impose a rotation schedule as an officer of the court, the
                    State Engineer was not required to ascertain whether the district court
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                had the authority to impose a rotation schedule on nonconsenting water
                users with equal priority of rights or whether substantial evidence
                supported that decision, and its actions cannot be challenged on that
                basis. Therefore, we hold that the State Engineer was not acting
                arbitrarily or capriciously and there was substantial evidence in support of
                his actions when he imposed a rotation schedule. 4
                The diversion agreement
                             One of the exceptions to the FOD made by the Bentleys
                asserted that they had the right to continuously divert water to their
                ponds under the diversion agreement and therefore could not be forced to
                participate in a rotation schedule with the other water rights holders.
                That diversion agreement, which was drafted in 1986, purportedly granted
                the Bentleys' predecessor-in-interest, Joseph Lodato, a continuous flow of
                water for the purpose of maintaining the water level in the streams and
                ponds on Lodato's property. Although the diversion agreement stated that
                the Rolphs and Gerald F. and Pamela F.J. Whitmere were the owners of
                the Sheridan Creek water rights and, collectively as grantors, granted the
                Bentleys' predecessor-in-interest, Lodato, the right to divert some or all of
                the Sheridan Creek water to maintain water levels in ponds then existing
                on Lodato's property, the Rolphs never signed the agreement. At the time
                when the agreement was drafted, water was diverted into only one pond


                      4The  Bentleys also argue that they were entitled to judicial review.
                Their argument on this point is unclear but appears to allege that their
                petitions for judicial review were denied by the district court on the basis
                of issue preclusion. However, the district court's order did not mention
                issue preclusion, and our review of the order does not indicate that it was
                based on issue preclusion. Therefore, the Bentleys' argument is without
                merit.


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                (the lower pond) located on the Lodato property. In 1987, Lodato recorded
                the diversion agreement.
                           The Bentleys purchased the Lodato property in 2006. In 2008,
                the Bentleys constructed a new, larger pond on the property (the upper
                pond). The Bentleys then constructed a pipe from the water distribution
                box to the upper pond and another pipe or ditch from the upper pond to
                the lower pond. Lastly, they constructed a pipe to allow overflow from the
                two ponds to reach their downstream neighbors. According to the
                Bentleys, these actions were permissible under the diversion agreement
                and did not amount to consumptive use.
                           The district court permitted the Intervenors to intervene in
                the case to challenge the Bentleys' right to enforce the diversion
                agreement. At trial, the Intervenors testified that the Bentleys' combined
                ponds use significantly more water than the previous single pond,
                resulting in the downstream users receiving no water during times of low
                flow. The district court held that the diversion agreement was invalid
                because it was not executed by the Rolphs and that, regardless, the
                Bentleys violated the terms of the agreement by using the waters for a
                consumptive use.
                           The Bentleys argue that the district court erred in declaring
                the diversion agreement invalid because the Rolphs were not necessary
                parties to the agreement, and the Bentleys' use of the water is for a
                nonconsumptive use.
                     Intervenors' response and objections to the Bentleys' notice of
                     exceptions was a proper pleading
                           As a preliminary matter, the Bentleys contend that NRS
                533.170 prohibits any pleadings in response to exceptions filed to the
                FOD. Therefore, because the Intervenors argued that the diversion
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                agreement was invalid in a reply to the Bentleys' exception, the district
                court erred by not dismissing it as an improper affirmative defense.
                            "Even parties who fail to take exceptions to an adjudication
                when reviewed upon appeal are entitled to participation in consideration
                of the adjudication." Davenport, supra, at 110. "An adjudication is not a
                separable controversy between a few claimants."     Id. "[A]l1 claimants or
                water users in [a water rights] adjudication proceeding under the [water
                statutes] are adverse."     In re Water Rights in Silver Creek Sz Its
                Tributaries, 57 Nev. 232, 238, 61 P.2d 987, 989 (1936).
                            NRS 533.170(2) states that "[t]he order of determination by
                the State Engineer and the statements or claims of claimants and
                exceptions made to the order of determination shall constitute the
                pleadings, and there shall be no other pleadings in the cause." "The
                purpose of the law is to limit the questions to be decided in the
                adjudication proceedings to issues raised by exceptions duly filed."
                Carpenter v. Sixth Judicial Dist. Court, 59 Nev. 42, 46, 73 P.2d 1310, 1311
                (1937). Thus, contrary to the Bentleys' assertions, NRS 533.170 does not
                prohibit any further pleadings—it simply limits the scope of all further
                pleadings to the issues raised by the exceptions while encouraging
                complete resolution of questions raised by the claimants.
                            Here, the Bentleys filed an exception stating that they should
                not be subject to any rotation schedule because the diversion agreement
                gave them the right to divert the North Sheridan Creek for use in their
                ponds. Intervenors were permitted to intervene and challenge the
                Bentleys' right to enforce the diversion agreement and thus their right to a
                continuous flow from the North Sheridan Creek at the Intervenors'



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                 expense. Because the Intervenors' pleading was not outside the scope of
                 the Bentleys' exception, we hold that it was a proper pleading.
                       The district court had jurisdiction to consider whether the diversion
                       agreement was valid
                             The Bentleys argue that because statutory water
                 adjudications are limited in scope to determining the relative rights of the
                 claimants, the district court did not have jurisdiction to determine
                 whether the diversion agreement was valid.
                             As previously stated, the purpose of a statutory adjudication is
                 to have water rights "adjudicated in such a proceeding as to terminate for
                 all time litigation between all such water users." Ruddell, 54 Nev. at 367,
                 17 P.2d at 695.
                             The Bentleys' argument is without merit. The validity of a
                 diversion agreement, which the Bentleys purport grants them the right to
                 divert water from the North Sheridan Creek in perpetuity, is within the
                 scope of an adjudication to determine the relative water rights of the
                 North Sheridan Creek. Furthermore, the failure to resolve the
                 enforceability of the diversion agreement would invite immediate further
                 litigation between the North Sheridan Creek water rights holders.
                 Therefore, we hold that the district court had jurisdiction to consider the
                 validity of the diversion agreement. 5




                       5 The Bentleys also argue that the district court's Findings of Fact,
                 Conclusions of Law, Order and Judgment was not incorporated into the
                 district court's final decree. However, as the final decree specifically
                 references the Findings of Fact, we hold that it was incorporated into the
                 decree.


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                      The Bentleys breached the agreement by using the water in a
                      consumptive manner by diverting it into the upper pond
                             "Contract interpretation is a question of law and, as long as no
                facts are in dispute, this court reviews contract issues de novo, looking to
                the language of the agreement and the surrounding circumstances."
                Redrock Valley Ranch, LLC v. Washoe Cty.,       127 Nev. 451, 460, 254 P.3d
                641, 647-48 (2011). "A basic rule of contract interpretation is that [e]very
                word must be given effect if at all possible." Bielar v. Was/toe Health Sys.,
                Inc., 129 Nev., Adv. Op. 49, 306 P.3d 360, 364 (2013) (alteration in
                original) (internal quotations omitted). "A court should not interpret a
                contract so as to make meaningless its provisions."              Id. (internal
                quotations omitted). "A contract should not be construed so as to lead to
                an absurd result." Reno Club, Inc. v. Young Inv. Co., 64 Nev. 312, 325, 182
                P.2d 1011, 1017 (1947).
                             The diversion agreement states, in relevant part:
                             This grant is specifically made on the condition
                             that the water will be used by Grantee in a non-
                             consumptive fashion, to maintain water levels in a
                             series of streams and ponds on the Exhibit "A"
                             property, after which time it will be re-diverted to
                             the irrigation ditches of Grantors.
                The agreement does not otherwise define "nonconsumptive fashion," and
                the referenced "Exhibit A" only describes the boundaries of the property,
                not the streams and ponds found on it.
                             The State Engineer performed seepage tests on each of the
                Bentleys' ponds and found that the ponds lost water from seepage,
                evaporation, and transpiration. Basing its holding on the seepage test
                results, the district court held that because the Bentleys' ponds
                "consumed" water, the Bentleys violated the terms of the diversion
                agreement.
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                             The Bentleys argue that because the diversion agreement
                 specifically allows the grantee to maintain the water level in a series of
                 streams and ponds on the property, the Bentleys' use to maintain the
                 water level in the ponds, including the upper pond, is not a consumptive
                 use as described by the agreement. The Bentleys are at least partially
                 correct. By specifically stating that the purpose of the diversion
                 agreement was to maintain water levels in the streams and ponds on the
                 Bentleys' property, the drafters of the diversion agreement contemplated
                 that the ponds would consume some water—otherwise, the diverted water
                 would be unnecessary. Likewise, although the ponds consumed some
                 water, the diversion agreement considered such usage to be
                 nonconsumptive, as that term is used by the agreement. If this was
                 considered to be a consumptive use violating the terms of the agreement,
                 then the agreement would be invalid on its face. As this would be an
                 absurd result, we hold that maintaining water levels in the streams and
                 ponds existing on the Bentleys' property in 1987 is not a consumptive use
                 as contemplated by the diversion agreement.
                             However, this court must also give effect to the requirement in
                 the agreement that the diverted water must be used in a nonconsumptive
                 manner and that after such use, the water must be "re-diverted to the
                 irrigation ditches of Grantors."   See Bielar, 129 Nev., Adv. Op. 49, 306
                 P.3d at 364. The agreement appears to contradict itself by granting the
                 Bentleys the right to use North Sheridan Creek for the undoubtedly
                 consumptive use of maintaining their pond but also requiring that the use
                 be "non-consumptive" and re-divert water to the irrigation ditches of
                 downstream water rights holders. These two contradictory statements
                 can be reconciled by interpreting the agreement's scope of nonconsumptive

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                    uses to only apply to the maintenance of the streams and ponds on the
                    Bentleys' property as they existed at the time of the agreement.   Otherwise
                    the agreement could be construed to permit the absurd result of allowing
                    the Bentleys to construct as many ponds as they wished and completely
                    consume the water of the North Sheridan Creek, even in times of high
                    flow, and nonetheless have it count as a nonconsumptive use.
                                Here, the evidence shows that the Bentleys not only used the
                    North Sheridan Creek water to maintain the streams and ponds existing
                    on their property when the agreement was signed, they also dug a new,
                    larger pond and used the North Sheridan Creek to maintain the water in
                    that pond. The State Engineer's seepage tests of the Bentleys' ponds show
                    that the Bentleys consumed twice as much water after the second pond
                    was constructed as they did prior to that time. Therefore, we hold that the
                    Bentleys breached the diversion agreement when they constructed a
                    second pond on their property and used the North Sheridan Creek to
                    maintain its water levels.
                          The district court's finding that the diversion agreement was not a
                          valid contract is not clearly erroneous and is supported by
                          substantial evidence
                                "[W]hether a contract exists is [a question] of fact, requiring
                    this court to defer to the district court's findings unless they are clearly
                    erroneous or not based on substantial evidence."     Certified Fire Prot., Inc.
                    v. Precision Constr., Inc., 128 Nev. 371, 378, 283 P.3d 250, 255 (2012)
                    (alterations in original) (internal quotations omitted). "Substantial
                    evidence is evidence that a reasonable mind might accept as adequate to
                    support a conclusion."   Whitemaine v. Aniskovich,    124 Nev. 302, 308, 183
                    P.3d 137, 141 (2008).



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                              "Basic contract principles require, for an enforceable contract,
                an offer and acceptance, meeting of the minds, and consideration."
                Certified Fire Prot., 128 Nev. at 378, 283 P.3d at 255 (internal quotations
                omitted). "A meeting of the minds exists when the parties have agreed
                upon the contract's essential terms" Id.
                              Here, the diversion agreement stated that the Rolphs and the
                Whitmeres were the owners of the Sheridan Creek water rights and,
                collectively as grantors, granted the Bentleys' predecessor-in-interest,
                Lodato, the right to divert some or all of the Sheridan Creek water to
                maintain water levels in ponds then existing on Lodato's property.
                However, only the Whitmeres and Lodato signed the agreement. The
                signature lines for the Rolphs are blank.
                              The Bentleys argue that because the Whitmeres, not the
                Rolphs, had the rights to North Sheridan Creek, the diversion agreement
                is valid as to the waters of North Sheridan Creek, even though the Rolphs
                did not sign it. 6 However, in order for there to be a valid contract
                formation, there must be a meeting of the minds.      See id. The agreement
                acknowledges that the Whitmeres and the Rolphs own the water rights to
                the Sheridan Creek and their agreement to grant Lodato the right to
                divert Sheridan Creek onto existing streams and ponds on Lodato's
                property. The agreement was between four grantors (the two Rolphs and
                the two Whitmeres) and one grantee, Lodato, as to the Sheridan Creek

                      6 The State Engineer and the Intervenors dispute whether the
                Whitmeres received the water rights to North Sheridan Creek from the
                Rolphs at the time the diversion agreement was signed. However, because
                we conclude that the agreement would be invalid even if the Whitmeres
                had the water rights at the time the diversion agreement was signed, we
                need not reach that issue.


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                water rights. Only two of the grantors signed it. The agreement does not
                contemplate any additional, separately held water rights by the two
                grantors who signed the agreement and thus the Bentleys' arguments in
                that regard are unsupportable. Therefore, the district court properly
                determined that it fails, and we hold that its finding that the diversion
                agreement was not a valid contract is not clearly erroneous and is
                supported by substantial evidence.
                      The doctrine of laches does not apply
                            The Bentleys argue that because the Intervenors did not
                challenge the diversion agreement from the time it was created in 1987
                until the Bentleys filed their exceptions to the FOD in 2008, the
                Intervenors should be barred from challenging the diversion agreement by
                the doctrine of laches. Specifically, the Bentleys argue that the
                Intervenors' delay in challenging the diversion agreement prejudiced the
                Bentleys because they purchased the property with the belief that the
                property carried with it the right to a continuous flow of water from the
                North Sheridan Creek.
                                 Laches is an equitable doctrine which may
                           be invoked when delay by one party works to the
                           disadvantage of the other, causing a change of
                           circumstances which would make the grant of
                           relief to the delaying party inequitable. To
                           determine whether a challenge is barred by the
                           doctrine of laches, this court considers (1) whether
                           the party inexcusably delayed bringing the
                           challenge, (2) whether the party's inexcusable
                           delay constitutes acquiescence to the condition the
                           party is challenging, and (3) whether the
                           inexcusable delay was prejudicial to others.




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                 Miller v. Burk, 124 Nev. 579, 598, 188 P.3d 1112, 1125 (2008) (citation
                 omitted) (internal quotations omitted).
                              The diversion agreement was recorded with the county
                 recorder's office. Accordingly, the Intervenors had constructive notice of
                 the agreement. See Allen v. Webb,     87 Nev. 261, 270, 485 P.2d 677, 682
                 (1971) (holding that purchasers of realty have constructive notice of
                 recorded deeds in the chain of title). However, evidence was also proffered
                 that prior to the construction of the Bentleys' second pond, the Bentleys
                 and their predecessors in interest never attempted to enforce the diversion
                 agreement. Lastly, the Bentleys testified that whileS they were unaware of
                 the diversion agreement at the time they purchased the property, their
                 belief that the property had the rights to a continuous flow from North
                 Sheridan Creek was an important factor in their decision to purchase the
                 property.
                              Because the diversion agreement was not enforced prior to the
                 Bentleys' purchase of their property, we hold that the Intervenors did not
                 inexcusably delay challenging the diversion agreement and that any delay
                 did not constitute acquiescence to the diversion agreement's validity.
                 Furthermore, as the Bentleys were unaware of the diversion agreement at
                 the time they purchased the property, any delay by the Intervenors in
                 challenging the agreement was not prejudicial to the Bentleys. Therefore,
                 we hold that the doctrine of laches does not apply to the current case. 7



                       7 We also note that the doctrine of laches would only apply as to the
                 Intervenors' arguments that the diversion agreement is invalid. Here, the
                 district court also found that the Bentleys breached the diversion
                 agreement by using the water for a nonpermissible consumptive use.
                 Therefore, even if the doctrine of laches applied, it would not apply to the
                                                                     continued on next page...
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                           The statute of limitations had not run
                                 The Bentleys argue that because the statute of limitations to
                     quiet title is five years in Nevada, the Intervenors were time-barred from
                     challenging the validity of the diversion agreement.
                                 NRS 11.070 states:
                                 No cause of action or defense to an action, founded
                                 upon the title to real property, or to rents or to
                                 services out of the same, shall be effectual, unless
                                 it appears that the person prosecuting the action
                                 or making the defense, or under whose title the
                                 action is prosecuted or the defense is made, or the
                                 ancestor, predecessor, or grantor of such person,
                                 was seized or possessed of the premises in
                                 question within 5 years before the committing of
                                 the act in respect to which said action is
                                 prosecuted or defense made.
                                 Here, although the diversion agreement was recorded in 1987,
                     it was not enforced until 2008 when the Bentleys built their second pond
                     and prevented water from flowing to the Intervenors. Therefore, the
                     Bentleys did not seize or possess the North Sheridan Creek water until
                     2008 and the statute of limitations did not begin to run until that time.
                     Because the current action began with the State Engineer's filing of the
                     FOD with the district court in 2008, we hold that the challenge was
                     appropriately brought within the statute of limitations period. 8



                     ...continued
                     district court's finding that the agreement was unenforceable due to
                     breach by the Bentleys.

                           8 Similarlyto the Bentleys' argument regarding laches, we note that
                     the Bentleys' statute of limitations argument would also only apply as to
                     the issue of whether the diversion agreement is invalid. Here, the district
                     court also found that the Bentleys breached the diversion agreement by
                                                                       continued on next page...
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                      Attorney fees
                            The order for attorney fees was incorporated in the final judgment
                                  The Bentleys argue that the Intervenors' claim for attorney
                      fees is based on an order entered on January 4, 2013, approximately 21
                      months prior to the entry of the final decree on September 29, 2014. The
                      Bentleys further argue that this decree made no reference to attorney fees,
                      costs, or the January 4, 2013, order and, therefore, Intervenors are
                      precluded from arguing that the 2013 order somehow became final upon
                      entry of the decree and is thus enforceable. The Bentleys also argue that
                      the interlocutory order did not affect the final judgment, and thus,
                      pursuant to the Third Circuit Court of Appeals case of In re Westinghouse
                      Securities Litigation, 90 F.3d 696, 706 (3d Cir. 1996), the order awarding
                      attorney fees did not merge into the final decree.
                                      This court need not go as far as the Third Circuit Court of
                      Appeals, as we have long held that prejudgment orders merge into the
                      final judgment on appeal.       Consol. Generator-Nevada, Inc. v. Cummins
                      Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998). Our caselaw
                      does not recognize an exception to the merger rule for interlocutory orders
                      that do not affect the final judgment, and we decline to adopt such a rule
                      here. Therefore, the Bentleys' argument is without merit.




                      ...continued
                      using the water for a nonpermissible consumptive use. Therefore, even if
                      the statute of limitations applied, it would not apply to the district court's
                      finding that the agreement was unenforceable due to the breach by the
                      Bentleys.


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                              Intervenors were a prevailing party
                              The Bentleys contend that the Intervenors are not the
                 prevailing party because all five of the Bentleys' exceptions were resolved
                 prior to trial in the Bentleys' favor and because the Intervenors only
                 prevailed on three of their six claims, having abandoned the rest. The
                 Bentleys further argue that it was actually the Bentleys who were the
                 prevailing party.
                              "A party can prevail under NRS 18.010 if it succeeds on any
                 significant issue in litigation which achieves some of the benefit it sought
                 in bringing suit." Valley Elec. Ass'n v. Overfield,   121 Nev. 7, 10, 106 P.3d
                 1198, 1200 (2005) (internal quotations omitted). "To be a prevailing party,
                 a party need not succeed on every issue," but the action must proceed to
                 judgment. Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc., 131
                 Nev., Adv. Op. 10, 343 P.3d 608, 615 (2015). Voluntary dismissal of some
                 claims does not preclude a finding of a prevailing party for the remaining
                 claims.   See Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1096,
                 901 P.2d 684, 688 (1995).
                              The fact that the Intervenors abandoned half of their claims
                 before proceeding to trial does not negate the fact that they prevailed on
                 the remaining claims.     See id.   By voluntarily dismissing three of their
                 claims, the Intervenors merely refined their action against the Bentleys.
                 See id.   Since these claims proceeded to judgment, the district court did
                 not abuse its discretion in finding that the Intervenors were the prevailing
                 party.
                              Additionally, the Bentleys' argument that they are the
                 prevailing party because their exceptions were resolved by stipulation is
                 unpersuasive. Because stipulations as to a claim result in neither party
                 being considered a prevailing party, the Bentleys cannot be deemed to be a
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                 prevailing party.     See Dimick v. Dimick,   112 Nev. 402, 404-05, 915 P.2d
                 254, 255-56 (1996). Furthermore, the Bentleys' exception on the
                 enforceability of the diversion agreement actually went to trial, with the
                 district court ruling in favor of the Intervenors by determining that the
                 diversion agreement was invalid. Therefore, we hold that the district
                 court did not abuse its discretion by finding that the Intervenors were the
                 prevailing party. 9
                       The district court did not abuse its discretion in awarding attorney
                       fees
                              NRS 18.010(2)(b) allows a district court to award attorney fees
                 to a prevailing party when the court finds that the claim of the opposing
                 party "was brought. . . without reasonable ground or to harass the
                 prevailing party." "To support such an award, . . . there must be evidence
                 in the record supporting the proposition that the complaint was brought
                 without reasonable grounds or to harass the other party."      Khan v. Morse
                 & Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005) (internal
                 quotations omitted). Thus, "[s]uch an analysis depends upon the actual
                 circumstances of the case."     Semenza, 111 Nev. at 1095, 901 P.2d at 688
                 (internal quotations omitted). However, "Nile decision to award attorney
                 fees is within the sound discretion of the district court and will not be
                 overturned absent a manifest abuse of discretion." Khan, 121 Nev. at 479,
                 117 P.3d at 238 (internal quotations omitted).


                        9 The Bentleys also argue that the district court abused its discretion
                 by failing to apportion attorney fees between causes of action that it found
                 colorable and those that were groundless. However, there is no indication
                 that the district court found any of the Bentleys' causes of action colorable.
                 Therefore, we hold that the district court did not abuse its discretion by
                 not apportioning attorney fees between causes of action.


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                           Here, the district court's decision to award attorney fees was
                grounded on the following findings and conclusions:
                           F. ATTORNEY FEES:
                                 44. Mr. Bentley, through intimidation and
                           threat, attempted to bully the Intervenors, acting
                           in a manner to harass and financially exhaust the
                           Intervenors.
                                 45. [The] Bentleys brought and maintained
                           their Exception No. 1 relating to the Diversion
                           Agreement without reasonable grounds.
                                  46. The Diversion Agreement contains a
                           clause that allows attorney fees to the prevailing
                           party in the event a lawsuit is brought to enforce
                           or interpret the Agreement.
                                  47. [The] Bentleys asserted that the
                           Agreement dated August 5, 1986, and the letter
                           recorded August 6, 1986, granted an additional
                           right to divert the flow of Sheridan Creek through
                           the ponds. (Exhibit 7.) However, those documents
                           did not grant any additional rights and are
                           invalid.
                                 48. The Bentleys proceeded in this matter
                           under an erroneous theory and under an
                           erroneous thought process, and therefore, their
                           action was maintained by them without
                           reasonable grounds.
                                       CONCLUSIONS OF LAW

                                 20. The Intervenors are adjudged to be the
                           prevailing parties for purposes of an award of
                           attorney fees to be supported by a separate motion
                           or memorandum for the same pursuant to NRCP
                           54(d) and NRS 18.010.




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                            The Bentleys maintained that the diversion agreement was
                valid despite it not being signed by two of the parties necessary to the
                execution of the agreement. The Bentleys further attempted to strike the
                Intervenors' opposition to the Bentleys' exceptions as an improper
                pleading, despite the fact that, as an adverse party in a statutory
                adjudication of a water system, the Intervenors had the right to oppose the
                Bentleys' exceptions. While it is arguable as to whether the Bentleys'
                contentions had merit, in our view, they were not so clearly meritorious as
                to render the district court's finding that they were unreasonable and
                brought for the purpose of harassment, to be a manifest abuse of
                discretion. Therefore, we hold that the district court did not abuse its
                discretion by awarding attorney fees to the Intervenors.
                            Sufficient evidence supported the district court's finding that
                            the Intervenors incurred fees
                            The Bentleys argue that the Intervenors' obligation for
                attorney fees was illusory and not actually incurred because "Hall
                Ranches was a self-represented entity, with Tom Hall as its owner and
                attorney." Therefore, because Hall Ranches was one of the Intervenors in
                this case and Thomas Hall was the Intervenors' attorney, Thomas Hall
                was a pro se litigant not entitled to recover attorney fees. The Bentleys
                cite to Sellers v. Fourth Judicial District Court, 119 Nev. 256, 259, 71 P.3d
                495, 497-98 (2003), and Lisa v. Strom, 904 P.2d 1239, 1243 (Ariz. Ct. App.
                1995), for this proposition.
                            Sellers and Strom are inapposite here, as both deal with an
                attorney representing himself pro se. See Sellers, 119 Nev. at 259, 71 P.3d
                at 497-98 ("[A]n attorney pro [se] litigant must be genuinely obligated to
                pay attorney fees before he may recover such fees."); see also Lisa, 904
                P.2d at 1243 ("[A]n additional, indispensable requirement to an award of
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                attorney[ ] fees to pro se attorneys [is] a genuine financial obligation on
                the part of the litigants to pay such fees."). Here, the record indicates that
                Thomas J. Hall, Esq., disclosed to the district court that he was a minority
                owner of Hall Ranches, LLC. Although Hall is a minority owner, the
                record does not reflect that he represented himself in pro se; rather, he
                represented Hall Ranches, LLC, an existing and valid limited liability
                company in Nevada, holding water rights V-06340 and V-06341, as well as
                the other Intervenors. Furthermore, the Bentleys provide no evidence in
                support of their contention that the Intervenors were not genuinely
                obligated to pay attorney fees to Hall. Accordingly, we hold that the
                district court did not abuse its discretion in awarding attorney fees to the
                Intervenors.°
                Conclusion
                             The district court had jurisdiction to consider the imposition of
                a rotation schedule on the North Sheridan Creek water rights holders.
                Furthermore, the State Engineer acted within his capacity as an officer of
                the court in enforcing the district court's order imposing a rotation
                schedule and did not act arbitrarily and capriciously. Next, the district
                court's finding that the diversion agreement proffered by the Bentleys was
                invalid was not clearly erroneous and is supported by substantial
                evidence. Even if the diversion agreement was valid, the agreement was




                      °Because we are affirming the district court's orders denying the
                petitions for judicial review, we also affirm the district court's order
                awarding Intervenors costs in those actions.


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                breached by Bentley. Lastly, the district court did not abuse its discretion
                in awarding the Intervenors attorney fees. Therefore,
                            ORDER the judgment of the district court AFFIRMED.




                                                                                  C.J.
                                                   Parraguirre


                                                                                   J.
                                                   Hardest


                                                                                   J.



                                                                                   J.



                                                                                   J.




                                                   Gibbons



                PICKERING, J., concurring in part and dissenting in part:
                            I dissent from the foregoing order to the extent that it affirms
                the imposition of mandatory rotation schedules on holders of equal
                priority vested water rights in the North Diversion of Sheridan Creek.
                This issue was not part of the proceedings before the State Engineer that
                culminated in the final order of determination (FOD). The footnote on
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                 page 199 of the 235-page FOD on which the majority relies to deem
                 mandatory rotation fairly in play in the proceedings below says only that,
                 "all parties will have to share the water shortage during periods of low
                 flow. The total diversion from either the north or south split can be used
                 in its entirety in a rotation system of irrigation." Although this footnote
                 permits water rights holders to agree to rotation schedules during periods
                 of low flow—"the total diversion .. . can be used. . . in a rotation
                 system"—I do not read it to say the rights may be subjected to mandatory
                 or forced rotation, over the objection of a vested, equal-priority, water-
                 rights holder. Confirming this reading, Paragraph XIV of the FOD, "Duty
                 of Water," states:
                             3. Rotation and Use of Water
                             Claimants of vested water rights and those owners
                             of water rights acquired through the appropriative
                             process from a common supply may rotate the use
                             of water to which they are collectively entitled
                             based on an agreement, so as to not injure
                             nonparticipants or infringe upon their water
                             rights, which is subject to approval by the State
                             Engineer. The purpose is to enable irrigators to
                             exercise their water rights more efficiently, and
                             thus to bring about a more economical use of
                             available water supplies in accordance with their
                             dates of priority. NRS 4'533.075.
                 (emphasis added). The foregoing paragraph of the FOD—text, not
                 footnote—says that water rights holders may agree to rotation schedules,
                 not that rotation schedules may be forced on nonconsenting water rights
                 holders. And, indeed, this is what NRS 533.075, which the FOD cites,
                 says too: "To bring about a more economical use of the available water
                 supply, it shall be lawful for water users owning lands to which water is
                 appurtenant to rotate in the use of the supply to which they may be

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                collectively entitled, . . . to the end that each user may have an irrigation
                head of at least 2 cubic feet per second."
                            The mandatory rotation orders at issue on this appeal
                originated in a statutory water rights adjudication undertaken pursuant
                to NRS 533.090 through NRS 533.435. After years of administrative
                proceedings, the State Engineer filed his FOD with the district court,
                whereupon a hearing date was set as per NRS 533.160(6). The FOD
                "defin[ed] the several rights to the waters of' North Diversion of Sheridan
                Creek, NRS 533.160(1); pursuant to NRS 533.170(1), "exceptions" to the
                FOD by "all parties in interest who are aggrieved or dissatisfied with" it
                were due 5 days before the scheduled district court hearing. By law, "[t]he
                [POD] and the statements or claims of claimants and exceptions made to
                the [FON shall constitute the pleadings, and there shall be no other
                pleadings in the cause." NRS 533.170(2) (emphasis added).
                            Insofar as is relevant to these appeals, the FOP defined the
                water rights in North Diversion of Sheridan Creek as vested, with equal
                priority dates of 1852. Notwithstanding the footnote on page 189 of the
                FOD on which the majority relies, I submit, for the reasons set out above,
                that the FOP did not give these vested water rights holders fair notice
                that their adjudicated water rights were or properly could be subject to
                mandatory, non-consensual rotation schedules if they did not file
                exceptions to the FOD. Nor do I agree that the exceptions the Bentleys
                filed, and the intervenors' responses thereto, made mandatory rotation an
                issue in the district court proceeding. To be sure, the Bentleys referenced
                rotation in their exceptions. But, by later stipulation and order, all parties
                agreed that only the Bentleys' Diversion Agreement, not mandatory
                rotation, was being litigated.    Compare NRS 533.170(5) (providing that

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                 proceedings under NRS 533.170, "shall be as nearly as may be in
                 accordance with the Nevada Rules of Civil Procedure"), with NRCP 16
                 (stating that a pretrial conference "order shall control the subsequent
                 course of the action unless modified by a subsequent order" and then,
                 "only to prevent manifest injustice").
                             Predictably, given the pleadings, the evidence at trial focused
                 on the Diversion Agreement and the impact the Bentleys' construction of a
                 second pond in reliance thereon had on the intervenors' water rights.
                 That evidence showed that the Bentleys' construction of a second pond
                 adversely impacted downstream users during periods of low water flow.
                 Citing this evidence, the State Engineer's lawyer orally asked, in closing
                 argument, that the court direct the State Engineer to impose rotation
                 schedules on persons holding vested water rights in North Diversion of
                 Sheridan Creek when the flow drops below 2.0 cfs (this is the level NRS
                 533.075 references in declaring voluntary rotation agreements
                 "lawful. . . to the end that each user may have an irrigation head of at
                 least 2 cubic feet per second"). With no amendment to the pleadings, the
                 district court accepted the State Engineer's lawyer's suggestion: In
                 addition to invalidating the Bentleys' Diversion Agreement, the district
                 court's findings of fact and decree affirming the FOD respecting North
                 Sheridan Creek,n directs that "[w]hen the combined flow from the North
                 Diversion of Sheridan Creek and tributaries drops below 2.0 cfs, the State


                        "As the majority recites, the FOD encompassed rights to more than
                 just the North Diversion of Sheridan Creek, so the decree did not become
                 final and appealable immediately. For simplicity's sake, proceedings not
                 related to North Diversion of Sheridan Creek water rights are not
                 discussed in this dissent.


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                 Engineer shall impose a rotation schedule." In both 2012 and 2013, the
                 flow dropped below 2.0 cfs and the State Engineer imposed a rotation
                 schedule. The Bentleys, the Bardens, and Joy Smith then petitioned for
                 judicial review. Citing its earlier findings of fact and decree, the district
                 court rejected the petitioners' legal and factual challenges to the
                 mandatory rotation schedules imposed on them. These consolidated
                 appeals followed.
                               The majority upholds the mandatory rotation schedules.
                 Given the procedural history set forth above, this result is insupportable.
                 "It is . . settled in this state that the water law and all proceedings
                 thereunder are special in character and the provisions of such law not only
                 lay down the method of procedure, but strictly limit it to that provided."
                 G. & M Props. v. Second Judicial Dist. Court, 95 Nev. 301, 305, 594 P.2d
                 714, 716 (1979) (quoting Application of Filippini, 66 Nev. 17, 27, 202 P.2d
                 535, 540 (1949) (citing Ruddell v. Sixth Judicial Dist. Court, 54 Nev. 363,
                 17 P.2d 693 (1933) and In re Water Rights in the Humboldt River Stream
                 Sys., 49 Nev. 357, 246 P. 692 (1926))). Here, the pleadings, as defined in
                 NRS 533.170(2), gave no notice that the vested rights dating back to 1852
                 determined by the State Engineer were sought to be abridged by imposing
                 a mandatory rotation schedule on their holders. On the contrary, in
                 paragraph XIV of the FOD, reprinted above, the State Engineer abjures
                 authority to mandate rotation schedules, citing NRS 533.075, which limits
                 its authorization of rotation schedules to agreed-upon schedules, not
                 mandated ones. 12 If the district judge wanted to consider mandatory


                       12 0f
                           note, the State Engineer does not, even in his briefs on appeal,
                 assert direct authority to impose mandatory rotation schedules on
                 nonconsenting vested water rights holders. Rather, the State Engineer
                                                                  continued on next page...
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                rotation schedules, he could and should have referred the matter back to
                the State Engineer pursuant to NRS 533.180 ("The court may, if
                necessary, refer the case or any part thereof for such further evidence to
                be taken by the State Engineer as it may direct, and may require a further
                determination by the State Engineer, subject to the court's instructions."),
                but he did not. Without having been developed in the proceedings before
                the State Engineer, or in district court, and hence fully vetted both
                factually and legally by all interested persons, the mandatory rotation
                schedules the district court ordered were not fairly made a part of the
                special statutory proceedings authorized by NRS 533.090 through NRS
                533.435.
                             The procedural deficiencies give rise to related legal and
                evidentiary deficiencies. As noted, NRS 533.075 authorizes water users to
                agree among themselves to rotation schedules but it does not, by its plain
                terms, authorize the State Engineer or the courts to mandate them over
                objection—indeed, the State Engineer does not argue otherwise. While
                other jurisdictions have, on occasion, imposed mandatory water rotation
                schedules, it is not clear that it is appropriate to do so in Nevada, where
                our water law rests on the prior appropriation doctrine, not riparian
                rights.    Cf. Colorado v. New Mexico,     459 U.S. 176, 179 n.4 (1982)

                ...continued
                defends his actions by relying on the district court's findings of fact and
                conclusions of law, which the State Engineer argues require him to impose
                rotation schedules, without regard to whether, independent of the court's
                order, he has the authority to so require. See Answering Brief of the State
                Engineer, at 19 ("Smith and Barden argue throughout their brief that the
                State Engineer imposed the rotation schedules by []his own authority.
                However, ... the State Engineer only implemented rotation schedules in
                compliance with orders of the decree court.").


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                ("Appropriative rights are fixed in quantity; riparian rights are variable
                depending on streamflow and subject to reasonable uses of others.").
                Further complicating matters, the record suggests some of the water
                rights holders in the North Diversion of Sheridan Creek use the water for
                irrigation, while others use theirs for domestic and stock and wildlife
                watering purposes, which do not as readily lend themselves to rotation.
                Cf. Union Mill & Mining Co. v. Dangberg, 81 F. 73, 122 (C.C.D. Nev. 1897)
                (allowing rotation under the riparian rights doctrine for purposes of
                irrigation and milling but noting that, "The respondents are also entitled
                to a decree allowing them, and each of them, at all times, to take and use a
                sufficient quantity of water from the river for their household and
                domestic purposes, and for watering their stock.") (emphasis added).
                Legal and factual issues as complex and important as these deserve full
                development before the State Engineer and the district court, with input
                from all affected water rights holders.
                            For these reasons, while I agree with the majority in its
                decision affirming the district court's invalidation of the Diversion
                Agreement, I respectfully dissent. I would reverse and remand to the
                district court with instructions to refer the matter to the State Engineer to
                determine, in the first instance, whether the law or the evidence supports
                imposing a mandatory rotation schedule on the holders of vested water
                rights in the North Diversion of Sheridan Creek.




                                                                                    J.
                                                    Pickering




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                cc: Hon. Nathan Tod Young, District Judge
                     Dyer, Lawrence, Penrose, Flaherty, Donaldson & Prunty
                     Matuska Law Offices, Ltd.
                     Attorney General/Carson City
                     Law Offices of Thomas J. Hall
                     Douglas County Clerk




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