Judge rules in favor of TCID’s contract with Reclamation

A senior judge presiding over the Tenth Judicial District Court in Fallon ruled Friday in favor of the Truckee-Carson Irrigation District to proceed with its contract with the United States for repayment of funds earmarked for repair of the Truckee Canal.

According to court records, TCID is the operator of the Newlands Federal Reclamation Project, which is contracted through the U.S. Bureau of Reclamation.

After listening to 90 minutes of concerns and adamant objections to TCID’s plan to move forward with the repairs, Judge Robert Estes made his ruling from the bench. Prior to his ruling, Fernley-area residents said their repayment for the repairs which were the result of a breach in the Truckee Canal on Jan. 5, 2008, was taxation without representation.

As Estes began to render his judgement, he illustrated an example that occurred in New Orleans when Hurricane Katrina caused considerable damage in late August 2005.

“The federal government through the Corps of Engineers repaired the levees in New Orleans in 2005 when New Orleans flooded,” Estes said, noting the levees breached. “Forty percent of the parishes didn’t receive any benefits the Corps of Engineers spent.”

Estes said many people attending the court hearing in Fallon are paying in part because of the levees in New Orleans. He added municipalities and others affected by nature’s wrath must follow the law as written. Estes said TCID followed the orders of the BOR.

“We all have to follow the law,” he stressed. “Many arguments made by the public have been made outside this hearing. The Feds own the canal … and TCID is their handy man for running the canal.”

At issue is a 2008 incident that occurred in Fernley when a breach in the early morning hours of Jan. 5, 2008, flooded 600 homes.

According to The Fernley Reporter, city attorney David Rigdon said the breach in the Truckee Canal was caused because TCID as the operator of the canal failed to maintain the embankments where animals were burrowing. The night before the flood happened, the Fernley city attorney said TCID opened the gates to Derby Dam midway between Reno and Fernley, doubling the amount of water in its diversions.

“It basically sent a 2-to-3-foot surge of water on top of what was already in the canal, and that caused the already weakened embankment to breach, and it caused the flood to happen,” Rigdon said.

After an environmental review process, the BOR approved a project in 2020 to line the entire 12.7 miles of the canal through Fernley. At the time, The Fernley Reporter said Fernley lawmakers objected to that plan as one of the alternatives to fix the canal. They argued lining the canal would deplete the groundwater supplies by eliminating underground seepage from the canal.

According to The Fernley Reporter, Rigdon said the project to line all 12.7 miles of the canal with concrete would cost between $140 and $160 million, so the bureau, instead, decided to move forward with Phase 1 of the project and line the first 3.1 miles estimated at $35 million.

While the BOR put the money up front for the project, BOR entered into a repayment contract with the irrigation district to be paid back over the next 50 years. Rigdon said with interest, the annual repayment is about $1 million.

Rigdon said Fernley holds the Newlands Project water rights, and the city and residents will be assessed for the project’s costs. Rigdon said over the next 50 years, estimates show it will cost the city about $2.5 million for its repayment share.

Estes asked Rigdon if he has seen the exhibits. He affirmed the city of Fernley has reviewed the information but the public hasn’t. Rigdon said it was TCID’s responsibility to file pretrial disclosure on all information and witnesses they planned to call.

Rigdon said the city asserts the TCID election was improperly done and the results are invalid. He contends property owners in the Fernley area who have no water rights will still pay for the repairs.

“This quintessentially is an example of taxation without representation,” Rigdon said. “This is the first repayment election of any irrigation district held in at least 70 years.”

Rigdon said he wondered if the election was improperly done. Estes jumped in and said the hearing was to address the validity or authority of TCID with the Bureau of Reclamation.

Speaker after speaker expressed their frustration and opposition to TCID’s plan to reline the canal and for property owners to pay more each month.

“The decision by TCID and the federal government is strong-arm tactics to Fernley residents,” said Richard Pellett, a resident in the Desert Lakes subdivision east of Fernley.

Another speaker said he was offended TCID assessed his property to pay for the lining of the Truckee Canal. Another speaker blamed TCID for not doing a “better job in keeping the canals in better shape.” Home owner Jon Ringard added Fernley water users will be saddled with the costs.

Lyon County Commissioner Scott Keller, who represents District 2, said he was unhappy how the voting was handled.

“Most people vote in Churchill County, not Fernley. The contract is not fair,” he said.

County Manager Andrew Haskin said he supports the city of Fernley. He said many Fernley residents, however, will deal with additional fees, and many can't afford it.

“It’s upsetting we’re being told this,” he said.

Fernley Councilwoman Felicity Zoberski echoed many of the concerns expressed to the judge.

“The amount of people affected is more in Fernley than Fallon,” Zoberski said, emphasizing she’s watching more Fernley residents struggle with the water issues.

After the speakers aired their grievances, Ben Shawcroft, TCID’s general counsel and general manager, disputed many of Rigdon’s claims during the hearing and outlined how the process worked. He said TCID followed the law that’s written.

“We litigated other issues leading up to the hearing,” Shawcroft said.

If the resident don’t like the laws TCID must follow, Shawcroft said Fernley residents need to talk to their legislators to have those specific laws changed.

Rigdon though, said the city of Fernley has no say and emphasized thousands of people are disenfranchised by the ballots.

“We haven’t anything to change our argument,” Shawcroft replied.

Estes then addressed the contract. He said TCID performs the maintenance under the BOR’s authority, which was approved in 1902, and carried out according to federal statute.

“The court finds TCID did what they were told to do,” Estes added.

As for those who were able to approve the repairs, Estes said TCID followed the law and determined who votes and who doesn’t.

“Nevada law determines two votes. Nevada statues require what TCID does, and federal statues for the BOR,” Estes pointed out.

Court documents show NRS 539.123 governs the eligible to vote in TCID elections and the number of votes allowed. NRS states, “The number of voters is based upon the amount of acreage owned or controlled by contract to which a water right is appurtenant.”

The number of voters, according to the NRS, is determined by the amount of acreage owned or controlled by contract to which a water right is appurtenant. Public workshops, though, were conducted in Fallon on June 7, 2022, and Fernley two days later.

The special election was held June 30, 2022. The question presented to eligible voters asked them to either approve or disapprove an outage of the Truckee Canal from Oct. 1, 2022 to Oct. 1, 2023, for “extraordinary maintenance repairs on the Truckee Canal.” TCID’s board of directors entered into a contract with the U.S. government to repay the cost of maintenance repairs not to exceed $35 million.

Results showed 1,886 voters approved and 168 disapproved. On July 5, 2022,the TCID directors canvassed the votes.

Furthermore, Estes said the city of Fernley believed TCID didn’t “do what they were supposed to do.” He said there were inequities in the statues, but TCID didn’t have any choice. Estes called both attorneys — Rigdon and Shawcroft — zealous advocates who presented their information as what the law requires. However, Estes said the statues show the authority and validity of the BOR is approved.