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received within 30 days of the date of said registered notice that the permits would be canceled and no further proceedings would be had thereunder. Accordingly, on or about August 27, 1955, unless such proofs or affidavits of extension of time are filed, it will become mandatory for this office to cancel said permits. As I understand it, you do not intend to file said proofs and accept the fact that said permits will be canceled 3 days following the date of the notice of July 27, 1955, which was sent by registered mail.
Please be advised that if these permits are canceled August 27, 1955, then any diversion from said wells after that date will be illegal and contrary to the water law of this State. Further, and upon the advice of Attorney General Harvey Dickerson, should the depot make such illegal diversions the State of Nevada will take the matter into court. Very truly yours,
Hugh A. SHAMBERGER, State Engineer.
IN THE MATTER OF PERMITS TO APPROPRIATE WATER, SERIAL Nos. 12988 to 12993,
INCLUSIVE, IN NAME OF UNITED STATES OF AMERICA, UNITED STATES NAVAL AMMUNITION DEPOT, HAWTHORNE, NEV.
Applications to appropriate underground water, Nos. 12988 to 12993, inclusive, were filed July 29, 1949 by the United States Government. Said filings were made by J. S. Crenshaw, captain, United States Navy, commanding officer, naval ammunition depot, Hawthorne, Nev.
Water was to be developed by means of deep wells and used for domestic and municipal purposes within the confines of the naval ammunition depot.
On January 9, 1950, permits were issued under these applications. Under the provisions of said permits, proofs of commencement of work were to be filed on or before July 27, 1950, and proofs of completion on or before July 27, 1951, and proofs of beneficial use on or before July 27, 1952.
On June 5, 1950 proofs of commencement and completion were filed under said permits. The said proofs showed that deep wells had been drilled and cased, and that pumps and electric motors had been installed.
Application for extension of time within which to file proofs of beneficial use under said permits were filed September 18, 1952, December 11, 1953, and July 27, 1954. Such extensions of time were granted and by virtue of the last extension permittee had until July 27, 1955, within which to file said proofs of beneficial use.
Proofs of beneficial use under said permits not having been filed on or before July 27, 1955, the State engineer sent the "third and final notice” by registered mail to the permittee, advising that if said proofs of beneficial use or application requesting extension of time within which to file said proofs were not filed within 30 days of said notice, said permits would be canceled.
By letter dated July 25, 1955, signed by W. S. Mayer, Jr., captain, United States Navy, commanding officer, United States naval ammunition depot, Hawthorne, Nev., and addressed to Hugh A. Shamberger, Statè engineer, Carson City, Nev., the State engineer was advised as follows:
“This will acknowledge receipt of your letter of May 31, 1955 regarding waterright applications 12988 to 12993 inclusive (wells 1 through 6).
“This is to advise your office that the applications for water rights with regard to the wells are being dropped and no continuing action is expected. This action is a result of instructions from the commandant, 12th Naval District who in turn has based his decision on a recent rule of the United States Supreme Court (Federal Power Commission v. State of Oregon).
“All of the wells on this depot are located on reserved lands, that is, public lands which were withdrawn and reserved for the use of the Navy Department by Executive orders."
On August 5, 1955, the State engineer, Hugh A. Shamberger, addressed a reply to the aforementioned letter. This letter stated in part, as follows:
"Please be advised that if these permits are canceled August 27, 1955, then any diversion from said wells after that date will be illegal and contrary to the water law of this State. Further, and upon the advice of Attorney General Harvey Dickerson, should the depot make such illegal diversions the State of Nevada will take the matter into court."
On August 15, 1955, Capt. W. S. Mayer, Jr., replied to the State engineer's letter of the 5th as follows:
“This acknowledges your letter of August 5, 1955, relative to water-right applications 12988 to 12993, inclusive (wells Nos. 1 through 6). This is to confirm the statements made in my previous letter of July 25, 1955, in which I advised that the applications for water rights with regard to the wells located on lands withdrawn from public domain are being dropped. This action is a result of instructions originating from the Chief of the Bureau of Yards and Docks, Navy Department who in turn has based his decision on a recent ruling of the Supreme Court (Federal Power Commission v. State of Oregon, 319 U. S. 435).”
Having failed to file proofs of beneficial use and having failed to make application for extensions of time within which to file said proofs within the statutory period as provided by law, permits Nos. 12988, 12989, 12990, 12991, 12992, and 12993 are herewith canceled as of August 28, 1955.
From the above-quoted letters from Capt. W. S. Mayer, Jr., commanding officer, it is evident that the United States Government plans on the continued use of water from the six wells and that in view of the recent United States Supreme Court decision, Federal Power Commission v. State of Oregon, it is felt by the Government that these wells situated on reserved lands are not within the jurisdiction of the water laws of the State of Nevada.
That the rule laid down in the cited Supreme Court case is not applicable to the use of ground water in Nevada and for that reason the ground-water laws of this State apply to the instant case.
It is therefore the opinion of the State engineer that the use of ground water from said wells without permits to appropriate water is contrary to the laws of this State and any such use thereof is an illegal use.
It is hereby the order of the State engineer that unless steps be taken within 30 days 'from the date of this order to reinstate said permits, either by filing proofs of beneficial use or filing applications for extension of time within which to file said proofs, that the use of water from said wells cease. Respectfully submitted.
Hugh A. SHAMBERGER, State Engineer. Dated September 7, 1955.
IN THE FIFTH JUMCIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE
COUNTY OF MINERAL
The State of Nevada, ex rel. Hugh A. Shamberger, State Engineer, Plaintiff, v.
the United States of America, Defendant
COMPLAINT FOR DECLARATORY JUDGMENT
Comes now the State of Nevada, one of the sovereign States of the United Stateş, upon relation of Hugh A. Shamberger, its duly appointed, qualified, and acting State engineer, and for the purpose of securing the judicial determination of its rights, status, and legal relations under its laws pertaining to the appropriation to beneficial use of the underground waters of said State by the United States and its Government, complains of the above-named defendant as hereinafter alleged.
That the United States sometime prior to the year 1935 established on a large area of land situate near the town of Hawthorne in Mineral County, State of Nevada, a depot known and designated the United States naval ammunition depot for the uses and purpose of the United States Navy; that the area of land included within the boundaries of said depot was a portion of the land ceded to the United States by Mexico in the treaty of Guadalupe-Hidalgo in 1848, and, exeepting such portions thereof that passed into private ownership, was treated by the United States as a proprietor of public lands until the establishment of the depot; that upon the admission of Nevada into the Union, in 1864, the United States neither by act of Congress or by stipulation then, nor by any applicable act of Congress thereafter, reserved any jurisdiction ousting the jurisdiction of the applicable laws of the State pertaining to ownership and the use of the waters thereof including the area comprising said depot.
That in and by an act of the legislature entitled “An act ceding to the Federal Government jurisdiction over the land and within the premises of certain Federal buildings at or near Hawthorne, in Mineral County, Nev., commonly known as the United States naval ammunition depot, approved March 28, 1935, being chapter 144, Statutes of 1935, the State of Nevada ceded jurisdiction over the land only, but not over the corpus of the water nor the application of its laws providing for the beneficial use thereof, reserving in section 3 thereof the right to serve any of its criminal or civil processes within the area for any cause there or elsewhere in the State arising, where such cause comes properly under the jurisdiction of the State laws. [Italics plaintiff's.]
That in 1939 the Legislature of the State of Nevada enacted an*act relating di to underground waters, the same being chapter 178, Statutes of Nevada, 1939. I
(a) Section 1 of said act provides, “All underground waters within the batt boundaries of the State belong to the public, and subject to all existing rights of the use thereof, are subject to appropriation for beneficial use only under the laws of the tate relating to the appropriation and use of water and not otherwise, therefore it is the intention of the legislature, by this act, to prevent that waste of underground waters and pollution and contamination thereof and provide for the administration of the provisions hereof by the State engineer, en who is hereby empowered to make such rules and regulations within the terms of this act as may be necessary for the proper execution of the provisions of win this act.”
(0) Section 2 provides, inter alia, "The word 'person' as used herein shall be interpreted to mean *** United States governmental agency''; that "the sain words 'general water law' as used herein means the statutory water laws of 3 1913 and all amendments thereto;" that the statutory water laws of 1913-in- guip clude that certain act of the legislature commonly known as the water law fili of 1913 and now being found at sections 7890 to 7978, inclusive, Nevada Compile Laws, 1929, and as amended, and which said water law provides the com statutory procedure for the appropriation for beneficial use of the waters of to be the State including underground waters, and provides in section 48 (sec. milk 7933, N. C. L., 1929) that “the word 'person’ where used in this act, includes * * * the United States, the State as well as a natural person.”
(c) Section 6 of the said act relating to underground waters, provides that the "every person desiring to sink or bore a well in any basin or portion therein ? in the State designated by the State engineer, as herein provided for, shall i first make application to and obtain from the State engineer a permit to wis appropriate such water in accordance with the provisions of the general water bon law of this State relating to the appropriation of the public waters before pri performing any work in connection with the boring or sinking of said well. In other basins or portions therein which have not been designated by the State engineer as aforesaid where the water sought to be appropriated is under the ground water existing in unconfined aquifers and not being under any hydrostatic artesian pressure, no application or permit to appropriate such water is necessary until after the well is sunk or bored and water developed. Before any legal diversion of water can be made from said well the appropriator must make application to the State engineer in accordance with the provisions of the general water law of this State for a permit to appropriate such water."
(d) Section 9 of the aforesaid act provides, inter alia, “A legal right to be appropriate underground water for beneficial use from an artesian well or from a definable aquifer by means of a well, tunnel, or otherwise drilled, bored, is or otherwise constructed subsequent to March 22, 1913, or from a well, tunnel
, or otherwise tapping percolating water, the course and boundaries of which are incapable of determination, that was drilled, bored, or otherwise constructed subsequent to March 25, 1939, can only be acquired by complying with the provisions of the general water law of this State pertaining to the appropriation of water."
IV (a) That the said statutory water law of 1913, to wit, sections 7890 to 7978, inclusive, Nevada Compiled Laws, 1929 (N. C. L. 1929), and as amended was, and is now, in full force and effect during all the time or times hereinafter alleged and provided and provides a comprehensive method for the legal ap
propriation of the public waters of the State, and provides in section 1 (7890 N. C. L., 1929) that “the water of all sources of water supply within the boundaries of the State, whether above or beneath the surface of the ground belong
to the public.". Section 2 (7891 N. C. L., 1929) provides, “Subject to existing All rights
, all such water may be appropriated for beneficial use as provided in this act and not otherwise."
(6) Plaintiff here alleges and directs attention to the following pertinent
sections of said water law of 1913, providing for and governing the appropriaford
tion of the public waters of the State, to wit:
1. Section 59 (7944 N. C. L., 1929) requiring application shall be made to the State engineer for permit to appropriate said waters to beneficial use. This section amended by chapter 110, Statutes of 1951, but no change made in the requirement. However, the requirement that such application be made prior
to the performance of any work in connection with said appropriation was re modified in section 6 of the underground water law of 1939, as alleged in parada, a graph III (c) ante.
2. Section 60 (7945 N. C. L., 1929) providing the duties of State engineer upon ng tid receipt of the application.
3. Section 61 (7946 N. C. L., 1929), publication of notice of the filing of said and application-amended by chapter 110, Statutes of 1951 as to amount of refund
of publication fees. Section 62 (7947 N. C. L., 1929) amended by chapter 110,
statutes of 1951, by the addition thereto "that technical rules of evidence shall engine not be deemed to apply,” said section providing for the filing of protests against the top
the application and hearings thereon.
4. Section 63 (7948 N. C. L. 1929) as amended by chapter 83, Statutes of 1949,
6. Section 65 (7950 N. C. L. 1929) providing that the State engineer in his ada de endorsement of approval upon the application shall set a time when actual con
struction work of the project shall begin, be completed and the application of the water to beneficial use be bad, provided, however, “The State engineer shall have authority, for good cause shown, to extend the time within which construction work shall begin, within which construction work shall be completed, or water applied to a beneficial use under any permit therefor issued by said State engineer." Said section was amended by chapter 110, Statutes of 1951, providing “that application for such extension must in all cases be made within 30 days following notice by registered mail that proof of such work is due as provided in sections 67 and 69 of this act."
7. Section 67 (7952 N. C. L. 1929) provides for statements of progress of the work of perfecting the appropriation of water to be filed with the State engineer from time to time including proof of the commencement of such work on or before 30 days after the date therefor endorsed on said application. This section was amended by chapter 110, Statutes of 1951, by requiring that applications for extensions of time shall be made prior to the expiration of the said 30-day period.
8. Section 68 (7953 N. C. L. 1929) provides that the State engineer may require proof of good faith on the part of any holder of a permit to appropriate the public water. 9. Section 69 (7954 N. C. L. 1929) provides, inter alia, “On or before the date set in the endorsement of a permit for the application of water to beneficial use, of on the date set by the State engineer under a proper application for extension therefor, it shall be the duty of any person holding a permit from the State engineer to appropriate the public waters of the State of Nevada, to change the place of diversion, or the manner or place of use, to file with the State engineer a statement under oath, on a form prescribed by the State engineer;" that said, section provides for the inclusion, inter alia, in said statement full information as to the source, use, and the amount of the waters actually appropriated and beneficially used, which said amounts shall be taken from actual measurements by a competent person. The section then provides: “Should any applicant fail, prior to the date set for such filing in his permit, to file with the State engineer proof of application of water to beneficial use, and the accompanying map, if such map be required, the State engineer shall advise the holder of said permit, by registered mail, that the same is held for cancellation, and should the said holder within 30 days after the mailing of such advice fail to file the required affidavit
and map, if such map be required, or either of them with the State engineer, the said permit shall be canceled and no further proceedings shall be had thereunder: Provided, however, That for good cause shown, upon application made prior to the expiration of said 30-day period, the State engineer may, in his discretion, grant an extension of time in which to file said instruments.” This section was amended by chapter 110, Statutes of 1951, by the requiring the advice given by the State engineer that the permit is being held for cancellation shall be given by registered mail, and that a showing of good cause by the applicant is necessary for an extension of time.
10. Section 72 (7957 N. C. L. 1929) as amended at 1937 Statutes, page 85, provides that the State engineer, upon satisfactory proof that the application to appropriate public water has been perfected in accordance with the provisions of the act, shall issue to the applicant or his assigns a certificate of water right and cause the same to be recorded in the office of the recorder of the county in which the water is diverted from its source.
That beginning on or about the 15th day of February 1942 and on divers days and times thereafter to and including on or about the 15th day of September 1945, the United States Government, then and there being represented by and acting through one J. S. Crenshaw, captain of the United States Navy and as commanding officer of the said United States naval ammunition depot, caused to be drilled and did drill certain wells in and upon the grounds within the boundaries of said ammunition depot for the purpose of tapping and did tap the underground waters therein ; that said wells were known and designated as United States Navy wells, Nos. 1, 2, 3, 4, 5, and 6; that the water developed from and in said wells was intended for and was so developed for the beneficial consumptive use thereof by said ammunition depot and for and in behalf of the United States Government.
(a) That said United States wells were not drilled on any area of land theretofore designated by the State engineer as a basin, as provided in section 4 of the act relating to underground waters of 1939, but were so drilled on areas of land as otherwise provided in section 6 and section 9 of said act as set forth in paragraph III (C) and (d), ante.
(b) That subsequent to the completion of the drilling of said United States wells and on or about the 29th day of July 1949, the said Capt. J. S. Crenshaw, for and in behalf of the United States Government, filed in the office of the State engineer of the State of Nevada an application for permit to appropriate the water to beneficial use of each of the said United States wells, Nos. 1, 2, 3, 4, 5, and 6; that thereafter and on or about the 26th day of September 1949, a corrected application for each of said wells was filed with said State engineer who had theretofore assigned to each application its application serial numbers as follows: United States well No. 1-No. 12988; United States well No. 2 No. 12989; United States well No. 3—No. 12990; United States well No. 4 No. 12991; United States well No. 5—No. 12992; United States well No. 6 No. 12993; that thereafter and on or about the 9th day of January 1950, each of said applications for permits to appropriate the said waters of said wells was approved by the State engineer, and permits therefor were issued, fixing therein the time for the commencement, the completion of the work and placing of the water to beneficial use necessary, for the perfecting of the appropriation according to law, full, true and correct copies of which said applications marked respectively exhibit A, A-1, A-2, A-3, A-4, and A-5, are hereunto annexed, made a part hereof and referred to as if here fully set forth.
(c) That thereafter and on or about the 5th day of June 1950, the said Capt. J. S. Crenshaw, for and in behalf of the United States Government, filed in the office of the State engineer the proof of commencement of work and proof of completion of work of and concerning each of said United States wells as required by law, full, true, and correct copies of which said proofs of commencement of work marked respectively exhibit B, B-1, B-2, B-3, B-4, and B-5, and of said proofs of completion of work marked respectively exhibit C, C-1, C-2, C-3, (-4, and C-5 are hereunto annexed, made a part hereof and referred to as if here fully set forth.
(d) That notwithstanding the fact that work essential to the actual diversion of water from each and all of said United States wells was completed prior to