Appellate Court Rules on Corner Crossing Case

On March 18, 2025, the Tenth Circuit Appellate Court issued a ruling on Iron Bar Holdings v. Cape, et al., what has become commonly referred to as the “Corner Crossing Case”.  As noted in our earlier blog, the Corner Crossing Case sets precedent on public land use in the West and settles a decades-long dispute between competing public land uses. 

Background and District Court Outcome

The case arose in the Federal District of Wyoming after several incidents in 2020 and 2021 involving four hunters pursuing deer and elk in southwest Wyoming.  The hunters, including Brad Cape, Zach Smith, Phillip Yeomans, and John Slowensky were hunting BLM land checkerboarded with private land belonging to Iron Bar Holdings, the owner of a Wyoming based ranching operation.  Due to prior disagreements with Iron Bar Holdings and hunters traversing from one BLM parcel to another via touching corners (i.e. “corner crossing”), Iron Bar Holdings posted and fenced the corners of its private land, to bar “corner crossing”.  Iron Bar also deployed its staff to instruct corner crossers to leave and contact local law enforcement requesting they press criminal charges on any corner crossers. While law enforcement was called on the hunters involved in this case in 2020, no citations were issued. In 2021, the hunters returned and used a ladder with its bases placed on each BLM parcel to “corner cross”, climbing from one public block to another without touching Iron Bar Holdings’ private land.

According to the March 18, 2025, decision [1], Iron Bar Holdings sued the hunters in federal civil court for civil trespass, claiming $9 million in damages based on a possible 10-25% devaluation of its property due to loss of exclusive access to the elk-rich public land sections interspersed with its private land. The District Court judge ruled in favor of the hunters, finding that public land users who corner-cross are immune from civil liability as long as the crossers do not touch the surface of private land or damage private property.  Iron Bar Holdings appealed the decision to the Federal Appellate Court for the Tenth Circuit. 

Tenth Circuit Opinion

 The Corner Crossing Case appeal was determined by a three-judge panel with a 3-0 decision. The sitting judges included Timothy Tymkovich, David Ebel, and Nancy Motriz. The appellate court’s 49-page decision upheld the District Court ruling and provided additional analysis on the legality of corner crossing. The decision contains a detailed and interesting history of the development of the public land survey system and federal land grants to railroad companies for the Transcontinental Railroad. Both are key elements giving rise to the present-day phenomenon of checkerboarded private and public land in the West.

Like in the District Court, the Unlawful Inclosure Act [2] of 1885 (“UIA”) was a primary factor in the Appellate Court’s decision affirming the District Court under de novo review. The UIA was passed “to prevent absorption and ownership of vast tracts of the public domain”, primarily by cattle barons. 43 U.S.C. § 1061 et seq.  The Court acknowledged that the UIA was “designed to harmonize public access to the public domain with adjacent private land holdings.”

State Property Law Preempted by Federal Law

First, the Court briefly discussed state property law, including the ownership of airspace and the property owner’s right to exclude. In doing so the Court found the hunters corner-crossing was a trespass under Wyoming law.  However, in applying the UIA, the Court also found that the state trespass law was preempted by federal law. In doing so, the Court reviewed over a hundred years of federal corner dispute cases spanning from 1885 to 1988.

Full Access to Public Lands

The Court concluded the UIA declares “[a]ll inclosures of any public lands. . .to be unlawful” including the “erection, construction, or control of any such inclosure” and the use of “force, threats, intimidation.” It also restricts prevention or obstruction of free passage or transit over or through the public lands. The court found this language expanded to all “inclosures of public land”, including non-physical barriers, such as Iron Bar Holdings “no trespassing” signs and its staff telling hunter to leave the public land. 

The core principle of the UIA is that a landowner cannot maintain a barrier “which enclose public lands and prevents” access for a “lawful purpose.” U.S. ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1511-1512 (10th Cir. 1988). However, the Court recognized a barrier itself is not a UIA violation, but it becomes one when its effect is to enclose. The Court further found that not every fence is a violation of the UIA as a fence can still permit adequate access such as via a gate. However, a fence that does prohibit access across federal land is a nuisance.

Conclusion

In sum, while the Tenth Circuit recognized that corner crossing may constitute civil trespass of a property owner’s airspace under state law, it found that such trespass is permissible if it is to overcome a UIA violation. As a result, the Court upheld the District Court holding that the hunters could corner-cross as long as they did not physically touch Iron Bar’s land. 

Tenth Circuit holdings have binding precedent on the following states:  Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming.  The ruling is also persuasive precedent for other States and appellate circuits in the West. It is unknown at this time if Iron Bar Holdings will petition the Supreme Court for certiorari (review).  It must do so within 90 days of entry of the Tenth Circuit’s order.

 [1] Our earlier blog says ~$7 million, which is consistent with the District Court decision. The appellate court decision says $9 million.

 [2] Not a typo, that is the wording from the actual act.

Corner Crossing Case Stalled at Appellate Court

Iron Bar Holdingss v. Cape, et al., what has become commonly referred to as the “Corner Crossing Case”, has stalled in the Tenth Circuit Appellate Court since May of this year.  The Corner Crossing Case is primed to set precedent on public land use in the West and settle a decades-long dispute between competing public land uses.

Background

The Corner Crossing Case arose from a Federal District Court for the District of Wyoming. The case stemmed from several incidents in 2020 and 2021 involving four Missouri hunters who were pursuing deer and elk in southeast Wyoming: Brad Cape, Zach Smith, Phillip Yeomans, and John Slowensky. The Bureau of Land Management (“BLM”) parcels they were hunting on were checkerboarded with private land belonging to Iron Bar Holdings, the owner of a Wyoming based ranching operation. Due to prior disagreements on whether hunters could “corner cross”, traversing from one BLM parcel to another via the touching corners, Iron Bar Holdings posted the corners of its private land, making it impossible to “corner cross” the adjacent BLM parcels.

As a result, instead of walking across the private land to reach the public land, the hunters used a ladder, with its bases placed on each BLM parcel to climb from one public block to another at the corners where they meet.

Iron Bar Holdings pursued criminal charges against the hunters, claiming trespass into the private property’s air-space. The hunters counter-argued Iron Bar Holdings violated the Unlawful Inclosures Act, a federal law that prohibits anyone from restricting access to public land. The Wyoming state court found the hunters not guilty of criminal trespass.  Iron Bar Holdings then sued them in federal civil court claiming up to $7.75 million in damages based on a possible 10-25% devaluation of its property.

The hunters are represented by Ryan Semerad, who provided an update on the case at the Western Agricultural and Environmental Law Conference in Reno, Nevada in June of 2024.  Schroder Law attorneys Therese Stix and Caitlin Skulan were in attendance. 

District and Appellate Litigation on Corner Crossing Case

The District Court Judge ruled that public land users who corner-cross are immune from civil liability as long as the crossers do not touch the surface of private land or damage private property. The 32-page ruling was strongly in favor of the hunters. The ruling relied heavily on a 1914 case Mackay v. Uinta Development Co. wherein a federal court ruled that a sheep farmer could move his herd across private land to access public parcels in southern Wyoming.  That court held that individuals “possess a reasonable way of passage over the unenclosed track of land without being guilty of trespass.” In answer to Iron Bar Holdings air-space argument, the District Judge cited a 1974 case from the Tenth Circuit Court of Appeals holding that a trespass into private property airspace required proof of damages to the property or proof of interference in the use of the private property.

The ruling was a “win for the common outdoors person” stated Brad Cape; but was it a loss for western ranchers?  Iron Bar Holdings certainly thought so and appealed the District Court decision to the Tenth Circuit Court of Appeals.

The Tenth Circuit Court of Appeals heard oral argument on the appeal on May 14, 2024. However, the Corner Crossing Case has stalled at the Appellate Court, that has yet to issue a decision on the appeal.

The Court’s decision will have precedential effects across the Tenth Circuit, including Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma and could impact public access to 8.3 million acres in the West. Many of these acres are used for hunting and other recreation as well as by livestock grazers under Bureau of Land Management grazing permits and licenses. These diversified interests were well represented in the Tenth Circuit with the submission of numerous Amicus briefs both in support of and against corner crossing.

Corner Crossing Case: Appeals to the Supreme Court

As the Tenth Circuit Court of appeals has yet to issue a ruling on Iron Bar Holdings v. Cape, et al., the outcome of the case is still uncertain.  However, Semerad opined in June that one of the parties will likely petition the Supreme Court for certiorari.  Given the dramatic effect a Supreme Court opinion will have on public land in the West, this office believes there is a high probability the Supreme Court will grant certiorari and provide clarity on this long standing legal gray area.

The United States Supreme Court review of a case is not a matter of right, but of discretion. The primary purpose of the Supreme Court is to decide cases presenting issues of importance beyond the particular facts and parties involved and to set precedent on those issues. Pursuant to that goal, the Supreme Court grants and hears argument in only about 1% of the cases that are filed each term with the vast majority being denied for review.

However, for the Supreme Court to consider a case, a party must file a Petition for Writ of Certiorari (“petition for writ”). If a party does not file petition for writ, the Supreme Court will not consider reviewing the case. A petition for writ is due within 90 days from the date of the entry of the final judgement in the United States Court of Appeals the case was presented in or within 90 days from the denial of a timely filed petition for rehearing in that court. Supreme Court Rule 13.1. 

            Stay tuned!

Schroeder Law Offices, P.C. attorney Caitlin Skulan made her third appearance at the annual Nevada Agricultural Fair in Douglas County, Nevada.  Attorney Skulan served on the 2024 Fair Board as Treasurer.  In 2022, The Fair moved from Carson City, Nevada to Douglas County in order to take advantage of the larger fairgrounds and room for growth.

            The Fair’s primary events are a four-day youth livestock show and three-day “MAYHEMilition” that includes lawn mower racing, figure-eight demolition car racing, and a “tuff truck” competition.  The “MAYHEMilition” serves as the primary fundraiser for the youth livestock show. Local sponsors donate other funds. In the past three years, popularity and traction for the evening festivities has grown. This year, the grandstand was sold out both Friday and Saturday night!  Fair organizers expect the Fair to grow further in 2025. 

            During the day, the focus is livestock, livestock, livestock.  Regional 4-H, Grange, FFA, and Keystone Agricultural Society members partook in showing seven animal types. Animal types included cattle, swine, lambs, goats, rabbits, poultry, and horses. Each type of livestock is further divided by species as well as by purpose (breeder, dairy, or market).  The show concluded with the Sunday livestock auction, directed by Attorney Skulan. The auction had a record number of buyers for the Fair, that resulted in great support for the youth selling their market animals. 

            The Fair is a culmination of a year’s worth of constant efforts for organization, securing vendors, sponsor outreach, and funding.  The Fair Board, with the able assistance of Attorney Skulan, continues to grow and improve the event and is looking forward to an even better Fair in July 2025.

            On January 25-27, 2024, Schroeder Law Offices Attorney Caitlin Skulan attended the Mid-Pacific Water Users Conference in Reno, NV.  The Conference Board opened the event by boasting the largest attendance to date at the 56^th annual conference. Over 300 registrants attended the conference, more than 80 of which were from the United States Bureau of Reclamation (“Bureau”).

            Bureau Commissioner Camille Calimlim Touton welcomed conference attendees. Touton is the first woman, Filippino Federal Commissioner in the United States.  Touton’s opening presentation centered around the Bureau’s big announcement for the California Great Basin Region.  The long-standing Regional Director, Earnest Conant is retiring! Conant will be succeeded as Regional Director for the California Great Basin Region by Karl Stock.  Conant will continue to serve as Senior Advisor to Touton for a short period before retiring fully from the Bureau.

Regional Updates

            In addition to the Bureau’s announcement of Conant’s Retirement, the conference program included updates on the Newlands Project and the status of various water reservoirs and river supply outlooks in the Region. Among the updates was that for Truckee and Carson Rivers.  The Bureau’s regional staff reported precipitation this year was at 50-70% of average, compared to the 200-300% the region experienced in 2023.  However, Regional staff were not overly concerned with water supply for the irrigation season as last year brought 650,000 Acre-feet of inflow in Lahantan Reservoir. As of late January, the reservoir was at about 70% capacity. The Bureau also reported Tahoe storage at 70% and Stampede Reservoir at 88% full.  The Bureau expects the reservoirs to continue to fill as the winter/spring runoff adds to inflows.  

            All-in-all, we at Schroeder Law Offices are happy to pass on the positive report for the water supply outlook for the 2024 irrigation season.  We additionally wish Mr. Conant the best in his retirement and look forward to working with Mr. Stock regarding any future Bureau-related projects.

What brought you to Schroeder Law Offices?

I came to Schroeder Law Offices right after graduating law school.  During my last year of school I was looking for a post-grad job related to natural resource law.  Having interned in jobs lobbying, in-house counsel for nonprofits, at an Attorney General’s Office, and at a large law firm, I knew I wanted to work in private practice, but in a boutique setting.

During my last semester of law school, I was working with The Freshwater Trust, a nonprofit in Portland, Oregon that does river restoration work. In that internship I had some exposure to water law and found it fascinating.  Schroeder was looking for an associate in Reno at the time. I was looking for a job in a location that would allow more of a rural lifestyle, so it was a perfect fit. I also loved that all the partners were women as this field is so often dominated by men.

What is your go-to productivity trick?

I am very to-do list oriented.  I tend to have one master list with all my projects and then one to two tiers of lists with more immediate tasks that need to be done in the next day or week.  A lot of my motivation comes from crossing something off a list.

What is something you find fascinating about water law?

Water law is one of the few niche practice areas that is incredibly diverse.  Unlike family or criminal law, where the issues, rules, and case law are often recycled, water law issues are always different.  In the last few years I have worked on property law, contract law, tort law, secured transaction law, tribal law, as well as federal issues like the National Environmental Policy Act (NEPA) and historic rights-of-way across federal land. I’ve never enjoyed monotony in a job. At Schroeder, I’m certainly never bored and almost always challenged in a new way!

What do you like to do for fun on the weekends?

Outside of work I like to cook, read, and work in my garden or on my farm. I also like to get outside for an adventure with my hodge-podge pack of dogs. On longer breaks, I like to backpack or kayak with my husband, travel internationally to see new places, learn about history, and try new foods.

What is your favorite book or movie?

I don’t have an all-time favorite book or movie that comes to mind.  Lately, I’ve really enjoyed anything written by Kate Quinn.  I love her portrayals of women’s forgotten roles in history, especially during WWII. 

What’s it like to work at Schroeder Law Offices?

Working at Schroeder is working with a close-knit team. We help each other out and really care about one another as people.  I’ve always felt supported and heard. The leadership has always been invested in my growth as a professional and outside of work. They also encourage me to build and maintain a life outside of the office.

Caitlin Skulan is an associate attorney at Schroeder Law Offices, PC.

Schroeder Law Offices not only advises on water issues, but we practice what we teach.  Schroeder Law Offices strives to connect with our clients on a personal level and to understand the practical implications and inconveniences client issues have on your lives.  We can do this, because we are people, too!

Schroeder Law Office Attorneys are ranchers, farmers, and rural homeowners.  Attorney Caitlin Skulan recently lived out some of these rural inconveniences when dealing with failed rural home water and sewer infrastructure. 

In her free time, Skulan spends time on a small 5-acre, in her words, “fixer upper” farm purchased with her husband in 2020.  Before and after work, Caitlin gardens, takes care of livestock, fixes fences, repairs and remodels outbuildings, and chases escapee chickens.  Being on a rural lot, Caitlin’s water is provided by a well.  The home is also equipped with a septic system for sewer. 

All was good as far as the water and sewer infrastructure for the first two years.  However, as any experienced rural homeowner knows, the lack of monthly sewer and water bills eventually comes with a price. 

I. Lessons in 1960s Septic Systems 

Imagine, your in-laws are visiting for a week from out of town, your spouse is away for work, you are working full time developing cases for trial, and you receive a call from your house guests that the showers aren’t draining!  You think nothing of it.  The drain is probably clogged with your sister-in-law’s hair.  You’ll take care of it when you get home.  Then the second call comes, the toilets aren’t flushing!  Now you start to worry.

Fast forward two days, three plumber visits, and a houseful of very disgruntled relatives, and you make a band aid fix, receive a quote for a complete septic line replacement, and are internally cursing the inventor of “Orangeburg” piping.

Orangeburg pipe is a bituminized fiber pipe made from layers of ground, compressed, wood pulp, bound by adhesive, and impregnated with coal tar pitch.  Effectively, it’s a cardboard pipe lined with tar. Also known as “no-corrode” pipe, Orangeburg pipe was commonly used for sewer pipes in homes built between 1945 and 1972.  The product owes its origins to World War II when iron and steel commonly used for sewer pipes were critical to the war effort and thus in short supply for building homes. The use of Orangeburg piping continued after the war ended because it was inexpensive.

Even when installed, the pipe was generally expected to last 50 years before deteriorating conditions would cause the systems to falter. As Orangeburg piping is essentially asphalt soaked paper that is in constant contact with water combined with the pressure of the soil above the pipe and subject to penetrating tree roots, it is not surprising pipes collapses and the system fails.  This is what Caitlin experiences in her 1960s home, requiring the pipe to be dug up, removed, and replaced with a new line. 

II. Sediment, Well Casing, and Calcium Deposits

A few weeks after the septic repairs, Caitlin noticed a reduction in water pressure and sediment in the water coming out of her faucets. Luckily, no house guests were present at the time. Initial research indicated this could be an issue with the well and a well company was called.

The well inspection indicated two things.  First, the water tank was flushed, and the well was in working order, but needed a sediment filter to filter tiny flakes of well casing out of the water. This is a cheap and minor fix as far as well repairs go.  Second, the water filtration system for the well needed to be replaced.  Caitlin, having completed the well inspection, sellers’ disclosures, and water quality test at the time she and her husband purchased their home, didn’t even know a water filtration system existed on the property and had, in fact, been advised not only to the contrary, but that given good water quality, one was not necessary. 

A new water sample was taken and a water quality test conducted to ensure the scope of filtration needed for the well.  While the water quality was within the limits of safe drinking water, the calcium levels were high enough to create concerns with the plumbing in the long term.  Calcium deposits in pipes are common in homes with “hard water” or high mineral contents.  Hard water can, and typically does, build up in drains and pipes. When left unresolved, this can cause corrosion or blockages.  While blockages in drainpipes can be easily and inexpensively resolved, the same is not the case for water supply pipes.  As such, the industry recommendation is to install a water softening system to prevent blockages from occurring or increasing.

III. Takeaways

At Schroeder Law Offices we emphasize due diligence before purchasing a property in an effort to “spend a dime to save a dollar.”  In the context of our practice, this usually means researching the validity, ownership, status, and adequacy of water rights that accompany rural properties.  However, completing due diligence research and inspections on rural water related infrastructure is important, too.

For water supply, a well inspection and water quality test by a reputable company is a must when considering purchasing a rural home.  However, lessons learned would recommend the well inspection and water quality test both be taken one step further.  Rather than rely on seller or realtor representation regarding water supply infrastructure, attend the well inspection yourself.  Ask the inspector to explain the system and its maintenance and upkeep. If necessary, schedule regular inspections to ensure everything is in working order. 

When water quality tests come back, even if safe for human consumption, ask the well inspector or a plumber if there are any concerns from an infrastructure perspective. If the water is hard, will it cause build up and is there any sign of mineral build up at the time of the inspection?  If a water filtration system must be installed, consider it in your purchase price or asking that one be installed by the seller prior to closing.

For septic systems, if the home was built between 1940 and 1990, strongly consider an inspection of the piping.  As Caitlin learned the hard way, having a septic inspection and service does not include an inspection of the pipeline from the home to the septic system.  Consider paying for a plumber knowledgeable in Orangeburg pipeline to camera and inspect the lines from the home to the septic system.  If the pipe is Orangeburg, factor replacing it into your purchase price or consider requesting the pipe be replaced by the seller as a latent defect in the property. 

            In our earlier blog, Schroeder Law Offices announced the Nevada Division of Environmental Protections’ (NDEP) workshop on Legislative Counsel Bureau (LCB) Draft R113-22.  LCB R113-22 proposed changes to Nevada’s water quality regulations for Nevada surface waters. 

            Now NDEP proposes to adopt additional regulations under the following LCB Numbers:  R114-22, R115-22, and R116-22 amending Chapter 445A of the Nevada Administrative Code for Standards for Water Quality.  More on the proposed regulations is available here.  Changes include setting site-specific selenium criteria for the Las Vegas Wash, adopting the federal Environmental Protection Agency (EPA) drinking water standards for certain contaminants, and assigning beneficial uses and criteria better suited for flood-conveyance channels in Las Vegas.  

            NDEP announced a workshop for these new proposed regulations on October 19, 2022 from 1:00 PM to 3:00 PM.  The workshop will occur online and can be joined by this link or by calling in:

Phone Number: 1-775-321-611
Conference ID: 253-622-142#

            Public comment will be accepted during the workshop and written comments will be accepted until October 24, 2022.  Written comments can be submitted to:

Dave Simpson: dsimpson@ndep.nv.gov

Nevada Division of Environmental Protection
Bureau of Water Quality Planning
901 S. Stewart Street, Suite 4001
Carson City, Nevada 89701

P: (775) 687-9548  F: (775) 687-5856 

Public participation is an important aspect of creating Nevada law.  NDEP regulation changes are governed by the Nevada Administrative Procedure Act.  The agency must solicit and consider public comments in adopting new regulations.  If these issues affect you, Schroeder Law Offices encourages you to participate!

In the article “Trends in Clinical Legal Education Affecting Agriculture” by Caroline Lobdell and Scott Horngren, the authors provide a thorough look into the current state of environmental, agricultural, and animal law programs in law schools throughout the country. Though environmental law programs have steadily increased since the passage of groundbreaking environmental laws in the 1970s, the authors argue that these programs fail to offer a balanced education on agriculture and environmental law. Instead, they often focus exclusively on fighting for environmental causes. In doing so, they neglect to cover the interests of farmers, ranchers, and other natural resource users, who make up a huge part of environmental and agricultural interests.

Rather than viewing natural resource use as inherently wrong or not worthy of study, the article urges law programs to educate students on the interests of natural resource users and the cases they may come across in these industries as lawyers. In doing so, law students will get a more well-rounded understanding of environmental and agricultural issues, be better equipped to anticipate opposing arguments, and even work together with natural resource users in pursuing conservation efforts.  

To showcase the positive impact of a well-balanced environmental and agricultural education, the article uses Lewis & Clark’s Western Resource Legal Center (WRLC) as a case study. The law clinic, incorporated by Laura A. Schroeder, aimed to help students understand the interests of ranching, farming, timber, and other resource dependent industries. WRLC was later incorporated into Lewis & Clark to follow a seminar format to address legal issues affecting these industries in addition to an externship program that has partnered with the Oregon Farm Bureau, the Oregon Cattleman’s Association, American Forest Resource Council, Schroeder Law Offices, and others. With so many students willing to share positive experiences, the article makes a compelling argument for law schools to implement similar programs in their environmental law curriculums.  

WRLC’s founder and former Dean of Lewis and Clark Law School, James Huffman described the program as “a little boat that is finally afloat.”  On WRLC’s inception, Huffman stated “[t]here is a lot more to be done to make it seaworthy and expand the fleet, but it can be done.”  As budding law students with agricultural backgrounds, WRLC alumni, such as Schroeder Law Offices’ Associate Attorney Caitlin Skulan, were able to obtain a more balanced legal education as it pertains to the natural world and the resources we rely on. WRLC was a life raft in a sea full of environmental advocacy opinions on the Lewis and Clark campus.  The balance of working with farmers, ranchers, timber harvesters, and other sustainable natural resources users offers law students a reprieve from viewpoints that organizations like Farm Bureau and Cattlemen’s Associations are the villains of the environmental story. 

Similar to environmental advocacy focused clinics, students are still exposed to a whole host of environmental laws including the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, and state and federal Administrative Procedure Acts.  WRLC students have an opportunity to participate in real cases with the people who work and rely on natural resources and take pride in their roles as stewards of the land their livelihoods rely on.  As an employer of WRLC Alumni, Schroeder Law Offices hopes to see similar programs emerging at other law schools to better prepare future lawyers to represent our valued clientele.   

To learn more about WRLC and the current state of environmental, agricultural, and animal law programs, check out the link to the full article here.

As fall rains shower Northern Nevada and the first snow fall for Lake Tahoe is on the books for September 19, 2022, it is easy to forget that Nevada remains in a long-standing drought. However, it is important that Nevada continue to take measures to prepare and stay informed about these long-term conditions, even as they begin to improve.

How can Nevadans be best prepared to live with drought?  A number of state and federal resources are available to all Nevadans to track, understand, and adapt to long term drought conditions. These resources include:

State Drought Reports:  The State Climate Office and University of Nevada Reno publishes a monthly 2-3 page drought report with updated drought conditions and projects.  The most recent report can be found here.

US Drought Monitor: Similarly, the US Drought Monitor updates current drought conditions for all states weekly.  The monitor page for Nevada can be found here.

Nevada Drought Planning Workshops: Online and tabletop workshops are held periodically and are announced on the National Integrated Drought Information System, published by the National Oceanic Atmospheric Administration (NOAA).  The Nevada page is available here, including links to further information about upcoming drought webinars and workshops.

United States Dept. of Agriculture Mapping:  USDA offers a number of drought mapping tools to track and project drought.  These include the USDA Snotel Mapping system, which maps snowpack, an important seasonal contributor to water recharge in the arid west and the Streamflow Forecast Map, which predicts seasonal streamflow and various points of diversion to allow users to estimate if streamflow will be high enough to meet minimum flow requirements and any senior in-stream water rights that may preclude junior surface water diversion.

These are just some of the many tools available to stay informed about drought.  Want to learn more about drought and drought tools?  Check out our on-demand Western State drought tools webinar here.

The Nevada Division of Environmental Protection (NDEP) is proposing new regulations on water quality.  NDEP announced an official regulation workshop on August 31, 2022 to solicit public comment and input on Legislative Counsel Bureau (LCB) Draft of Proposed Regulation R113-22.

R113-22 sets forth a process for the State Environmental Commission to classify a surface water of the State or a segment thereof as a water of extraordinary ecological, aesthetic, or recreational value.  The Commission then establishes provisions for antidegradation protections to these specially classified surface waters. The draft regulations can be viewed here.

The Workshop will be August 31, 2022 at 10:00 AM to 1:00 PM Pacific Standard Time. More information and the agenda can be viewed on NDEP’s Workshop Notice.

Due to technical difficulties related to the workshop online registration form, attendees may join by:

1. Going to the following link: https://www.microsoft.com/en-us/microsoft-teams/join-a-meeting?rtc=1
2. Entering the Meeting ID:  216 866 144 018
3. Entering the Passcode:  nqZR8P

NDEP will also attempt to accommodate anyone wishing to participate in person at:

Bryan Building
901 South Steward Street
Humboldt Conference Room, 3^rd Floor
Carson City, NV

Interested in more water quality activities?  Check out our blog on NDEP’s last Integrated Water Quality Report for 2020-2022 and stay tuned for the next Integrated Water Quality Report Comment Period in 2023. 

Hopefully you didn’t miss the first annual Nevada Agricultural Fair on July 7 through 10, 2022!  Schroeder Law Offices staff didn’t miss it, but if you did, here is a recap:       

Thursday, July 7:  Youth participants checked in livestock including market and breeder goats, sheep, pigs, cattle, and poultry.  Schroeder Law Offices staff assisted with large animal check in and assigning stalls and ear tags.  Then, SLO helped with poultry check in by performing health checks on show and market chickens.

Thursday Night kicked off the three-day Mayhemalition Derby with lawn mower races. Youth agriculture participants attended the derby events for free and were recruited to throw water balloons at the drivers!

Friday, July 8:  The livestock show began with youth showmanship classes.  Youth are judged on how well they show their livestock and general knowledge of the species.  Youth could also participate in Hippology and Horse Judging competitions on Friday.

After the livestock shows, SLO staff hosted a wine wall at the Mayhemalition Demolition Derby to raise funds for next year’s Youth awards.

Saturday, July 9:  Saturday hosted the busiest show day with market and breeder classes. In market and breeder classes, youth are judged by the quality of the animal they raised for the show. Livestock is judged by its breed standard with awards going to best of breed, best of class, and best of show. SLO staff helped run the poultry show, including market, breeder, and showmanship poultry classes. SLO staff also supported the youth market auction by bidding on market chickens.  We even won a couple pens!

Sunday, July 10:  The 2022 Fair wrapped up on Sunday with the Horse Show.  The Horse Show was open to youth and adults, with participant ages ranging from one-and-a-half years to some individuals enjoying retirement.

The first annual Nevada Agriculture Fair proved to be a busy weekend for SLO staff.  However, we had fun, got to connect with some of our clients, and supported local youth agriculture. Keep an eye out for details on next year’s fair at https://www.nvagfair.com/. We will be!

Schroeder Law Offices Fundraises for Youth Agriculture

            Schroeder Law Offices continues to support and fundraise for youth agriculture. SLO attorney Caitlin Skulan recently organized and ran a Wine Wall fundraiser for the Nevada Agricultural Fair.  Skulan sits on the volunteer Fair Board which prioritizes a youth livestock show and horse show during the annual fair in Douglas County, Nevada. 

            The Wine Wall fundraiser was hosted at Carson Valley Days on June 11^th and 12^th in Gardnerville, Nevada.  Carson Valley Days is organized by the Carson Valley 20-30 Club, an active partner in the Nevada Agricultural Fair. 

            Skulan, Fair Board President Chelsy Simerson, and the booth’s mascot “Atlas” succeeded in raising funds for the Fair and marketing with various businesses, youth livestock clubs, and potential buyers for the youth livestock auction.  The proceeds for the fundraiser will be used to purchase ribbons and buckles as well as offset other costs associated with the youth livestock show on July 8^th-10^th at the Douglas County Fairgrounds.  More information regarding the Fair can be found at:  https://www.nvagfair.com/. 

            SLO encourages attorneys and staff to get involved in the community. Youth agriculture is important to many of SLO’s clients, who have children involved in these activities. Youth livestock shows, 4-H, Grange, and FFA provide youth with an opportunity to learn about animal husbandry and agricultural business at a young age.  Events like the Nevada Agricultural Fair allow youth to showcase their knowledge and animals. 

            We hope to see you at the Fair!

Schroeder Law Offices Returns to the Nevada Junior Livestock Show!

On May 7, 2022, Schroeder Law Offices attended the Nevada Junior Livestock Show in Reno, Nevada.  The three-day show was at the Reno-Sparks Livestock Event Center. The show is a place for the National FFA Organization, 4-H, youth Grange, and independent youth members to exhibit their livestock projects before the public. They develop skills and practices related to livestock production.  These youth organizations are a popular part of Nevada’s agricultural community. They often are an important family activity for our agricultural clients.

Animals at the show included turkeys, pigs, lambs, goats, and steers.  Livestock were judged for quality and breed standards. Youths also competed in showmanship events. These events judged their skills and knowledge in animal handling and rearing.  The show ended with the annual market auction.  Youth are encouraged to contact local businesses and individuals. Then they can attend the auction and bid on livestock. The Western Nevada Grange invited Schroeder to bid on broad breasted white turkeys raised by the Club’s youth members. 

Winning at the Auction

We loved seeing familiar faces in the crowd and attending the Buyer’s dinner. AND we won the bid for Western Nevada Grange Member Sabella Thompson’s turkey! This was Sabella’s first year showing and selling an auction animal for Grange. Sabella sent Schroeder staff home with homemade cookies and her own artwork as a thank you for being her buyer.  The cookies didn’t last long, but Sabella’s art is proudly displayed in the office.   Schroeder Law Office staff also bid on other livestock to support additional local youth in their livestock rearing endeavors.

The Nevada Division of Environmental Protection (NDEP) seeks public comments to its Draft Water Quality Integrated report. The public comment period for Nevada’s 2020-2022 Draft Water Quality Integrated Report closes on December 31, 2021. On November 22, 2021, NDEP published its Public Notice, inviting comment on the Draft Nevada 2020-2022 Water Quality Integrated Report. The report was prepared in accordance with the Clean Water Act, §§ 303(d), 305(b), and 314. The Clean Water Act requires NDEP to conduct a comprehensive analysis of water quality data associated with Nevada’s surface waters.

The report is a combination of the biennial reporting requirements under the Clean Water Act § 303 on impaired waters, and § 305 for an overall assessment of surface water quality within Nevada and a description of how current conditions provide for the protection of beneficial uses of the state’s waters.  The 2020 and 2022 assessment periods were combined into one report, as is the standard practice in Nevada. Thus, the report covers a data collection period of over seven-years. 

Data on Nevada’s rivers, streams, lakes and reservoirs was collected from October 1, 2013 through September 30, 2020 and was evaluated to determine if State water quality standards are being met and beneficial uses are supported. These periodic reports are used by the public, other entities, and NDEP for water quality management planning purposes.

Impaired Water Reporting Requirements

Under its Clean Water Act § 303 reporting requirements, NDEP has produced a list of waters where current pollution control technologies alone cannot meet the water quality standards set for that water body. The list also contains water bodies that may soon become impaired. Impaired waters are prioritized base on the severity of the pollution and the designated use of the water body (e.g. fish propagation or recreation).  NDEP will also develop total maximum daily loads or TMDLs of pollutants in the impaired water bodies. These TMDLs designate the maximum concentration of each pollutant allowed in the water body and will help guide NDEP water resource management decision in an attempt to improve impaired waters.

Public Comment

The Draft Nevada 2020-2021 Water Quality Integrated Report is available at:

https://ndep.nv.gov/water/rivers-streams-lakes/water-quality-standards/303d-305b-water-quality-integrated-report

Links to the 2016-2018 Water Quality Integrated Report and examples of its public comments can also be found at the link above.

The public comment period for the Draft Nevada 2020-2021 Water Quality Integrated Report closes on December 31, 2021 at 5:00 PM. Any comments should be submitted by mail or email to:

Dave Simpson
Nevada Division of Environmental Protection
Bureau of Water Quality Planning 
901 S. Stewart St.
Carson City, NV 89701
dsimpson@ndep.nv.gov

What’s Next?

Once the report is submitted, Environmental Protection Agency (EPA) must notify NDEP of its approval or disapproval of the § 303 impaired waters list within thirty (30) days. If the list and associated TMDLs are approved, NDEP will incorporate them into its plan.  If they are disapproved, the burden shifts to EPA to identify impaired waters and determine the TMDLs necessary to implement the water quality standards applicable to each water. This must be completed by EPA in thirty days.  After such identification, if necessary, NDEP will then incorporate EPA’s § 303 list into its water quality plan.

The next biennial report will be drafted in 2023 with an opportunity to submit public comment on the draft report prior to submission. Watch for our blog about it here.

(Photo Credit: https://www.visitlaughlin.com/listing/colorado-river/36922/)

Schroeder Law Offices’ 2021 VACCINE webinar series is already half over.  Lucky for you, all webinars are available on-demand! In case you missed it, be sure to watch the 2021 VACCINE Webinars that already took place:

(1)       Contracting Out-of-Boundary Water and Wastewater Services;

(2)       What to do When There Is No Water: Drought Tools Explained

(3)       Terms to Put in a Well Share Agreement; and

(4)       How to Take Advantage of a Winter Appropriation Using Storage.

Don’t miss out on the upcoming webinars either!  The following topics are still in the works for the 2021 VACCINE Series:

(1)       Tuesday, September 14:  Due Diligence for Canal, Pond, and Drainage Maintenance: Wetlands Delineation:

(2)        Tuesday, October 19: How to Change or Remove an Easement (Ditch, Road, Well Share) from Real Estate; and

(3)        Tuesday, November 9: Should or Can you Take Stormwater into your existing system? 

Check back on our blog for more information on registration for upcoming webinars in the 2021 VACCINE webinar series. Afterward, webinars are available on-demand here.  Schroeder Law offices gives you continued access to educational content online.  If you have any problems with access or viewing, please contact Scott Borison at scott@water-law.com.

In the second installment of the VACCINE webinar series, Schroeder Law Office presents “What to Do When There is No Water: Drought Tools Explained.”  This webinar took place on Tuesday, June 22, 2021, from noon to 1:00 PM, Pacific time. A recording is now posted.

Laura Schroeder and Caitlin Skulan will discuss drought tools in Oregon, Nevada, and Idaho.  The discussion will include the requirements for a declaration of drought in each jurisdiction, tools available to water managers and users during drought, and priorities of use during water shortages.

Can’t make it on June 22^nd?  Afterwards, webinars are available here.  Schroeder Law Offices gives you free “on demand” access to educational content while maintaining social distance! Also check out our “Where is the Water?” articles in the WaterSPOT (Nevada) and the upcoming issues of the Water Gram (Idaho), and H2Oregon. 

Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  The third installment of the VACCINE series, “What Terms to Include in a Well Share Agreement” was presented Tuesday, July 13, 2021.  You can find a recording of that webinar here.

If you have any issues viewing, please contact Scott Borison at scott@water-law.com.    

(Image credit:  https://www.cnbc.com/2014/09/16/droughts-predictions-are-difficult-on-when-theyll-end.html; https://www.kunr.org/post/drought-fires-and-heat-look-nevadas-climate-earth-day-2021#stream/0)

On May 8, 2021, Schroeder Law Offices supported local youth by attending the Nevada Junior Livestock Show in Reno, Nevada.  Schroeder was invited by Carson City resident, Conner Simerson to bid on his broad breasted white turkey.  The three-day show took place at the Reno-Sparks Livestock Event Center. The purpose of the show is to provide an opportunity for the National FFA Organization, 4-H, youth Grange, and independent youth members to exhibit their livestock projects before the public and develop skills and practices related to livestock production.  These youth organizations are a popular part of Nevada’s agricultural community and often are an important family affair for our agricultural clients.

Animals at the show included turkeys, pigs, lambs, goats, and steers.  Livestock were judged for quality and breed standards. Youths also competed in showmanship events where their skills and knowledge in animal handling and rearing were judged.  The show ended with the annual market auction.  Youth are encouraged to contact local businesses and individuals to attend the auction and bid on their livestock.  Livestock are then processed by third parties and provided to bid winners to fill their freezers.

In addition to seeing a few familiar faces in the crowd and attending the Buyer’s dinner, we won the bid for Simerson’s turkey!  Schroeder Law Office staff were also able bid on other livestock and support additional local youth in their livestock rearing endeavors. 

Back by popular demand is Schroeder Law Office’s FREE live webinar series.  The 2021 VACCINE series follows the 2020 COVID-19 series. It will span across seven topics of water law. 

The first webinar of the series, Contracting Out-of-Boundary Water and Wastewater Services will take place on Tuesday, May 18, 2021 from noon to 1:00 PM, Pacific time.  Laura Schroeder and Caitlin Skulan will discuss contracting water and wastewater services outside a municipal or utility service boundary in Oregon, Nevada, and Idaho. The discussion will include when out of boundary contracting can occur, the duties owed to those inside and out of boundary, and other terms that should be included in these agreements. Participants will also learn about the pros and cons of out-of-boundary contracts. Attendees must pre-register for this webinar here!

Future VACCINE webinar topics will inlcude:

• Tuesday, June 22^nd—What to Do When There Is No Water: Drought Tools Explained;
• Tuesday, July 13th —What Terms to Include in a Well Share Agreement?
• Tuesday, August 3rd – How to Take Advantage of a Winter Appropriation Using Storage;
• Tuesday, September 14—Due Diligence for Canal, Pond, and Drainage Maintenance: Wetlands Delineation;
• Tuesday, October 19—How to Change or Remove an Easement (Ditch, Road, Well Share) from Real Estate; and
• Tuesday, November 9—Should or Can You Take Stormwater into Your Existing System?

Afterward, webinars are available here.  Schroeder Law Offices gives you “on demand” access to educational content while maintaining social distance!  Stay tuned to the Schroeder Law Offices blog for announcements about the upcoming webinars.  If you have any problems with registration or viewing, please contact Scott Borison at: scott@water-law.com. 

In the 2021 Nevada legislative session the Assembly considers nine water related bills and the State considers 15 water related bills total.  The 2021 legislative session began on February 1, 2021 and will conclude on June 1, 2021.  The Assembly bills are in various stages of consideration as the session approaches its conclusion. However, the clock has already run for certain bills.  Under Joint Standing Rule 14.3.1 the final standing committee to which a bill or joint resolution is referred in its house of origin may only take action on the bill or joint resolution on or before the 68^th calendar day of the legislative session. Under Joint Standing Rule 14.6, certain exemptions apply for re-referral of a bill to the Senate Committee on Finance or the Assembly Committee on Ways and Means.  The 68^th day of the Session was April 9, 2021.

Other deadlines apply pursuant to Joint Standing Rule 14.3. These include:

1. Final action may only be taken by the House of origin on or before the 79^th calendar day of the legislative session (April 20, 2021);
2. Final standing committee to which a bill is referred in the second House may only take action until the 103^rd day of the legislative session (May 14, 2021) unless referred to the Senate Committee on Finance or the Assembly Committee on Ways and Means; and
3. Final action on the bill may only be taken by the second House on or before the 110^th day of the legislative session (May 21, 2021).

As a result, some of the bills are dead in the water and will progress no further.  Summaries of pre-filed Assembly Bills 5, 6, and 16 can be found in our earlier blog post.  The remaining water related Assembly bills are summarized below.

Assembly Bill 146

Assembly Bill 146 proposes various changes to Nevada Revised Statute (“NRS”), chapter 445A regarding water pollution, including:

1. Requiring the State Department of Conservation and Natural Resources to establish a program regulating water pollution resulting from diffuse sources;
2. Establishing requirements for applicants for certain permits relating to water pollution to post a bond or other surety;
3. Revising the requirements for regulations adopted by the State Environmental Commission relating to water pollution, including the notice requirement relating to adoption of these regulations;
4. Revising provision related to the Director of the Department of Conservation and Natural Resources’ control of water pollution, including control of diffuse sources of water pollution;
5. Revising requirements for permits to discharge pollutants or inject fluids through a well; and
6. Requiring consultation and notification to Indian tribes of certain actions related to water pollution.

Assembly Bill 146 has not passed the Assembly Committee of Natural Resources but is exempt from Standing Rule 14.3.1.

Assembly Bill 354

Assembly Bill 354 is the fruition of one of the bill drafts discussed in this earlier blog.  This bill authorizes the creation and sets forth the authority and duties of water banks.  It additionally requires the State Engineer to submit a biennial report to the legislature related to water banks and provides penalties for violations of its provisions.

Further action on Assembly Bill 354 is not allowed, pursuant to Joint Standing Rule 14.3.1.

Assembly Bill 356

Assembly Bill 356 is the fruition of the other bill draft discussed in this earlier blog.  This bill creates and sets forth the requirements for a voluntary water conservation program and creates an account for the Nevada Division of Water Resources to purchase and retire water rights in targeted basins.

Assembly Bill 356 passed the Assembly Committee of Natural Resources and is being considered by the Assembly Committee of Ways and Means.

Assembly Concurrent Resolution 4

Assembly Concurrent Resolution 4 does not directly affect water resources or water quality.  However, it does direct the Legislative Commission to appoint a committee to conduct an interim study on general improvement districts (“GIDs”).  GID’s provide certain services and facilities to residents of the district, often times including water services.  Assembly Concurrent Resolution 4 will create a committee to study GIDs to: (1) improve accountability and effectiveness; (2) identify areas of continuing abuse and potential abuse in the creation, financing, operation, and oversight of GIDs; (3) consider modifying requirements related to GIDs; and (4) recommend possible legislative solutions to any continuing abuses.

Assembly Concurrent Resolution 4 was referred to the Committee on Legislative Operations and Elections.

Assembly Joint Resolution 2

Assembly Joint Resolution 2 recognizes that that health of forests, rangelands, and soils are inextricably linked to the quantity and quality of water.  It further expresses and supports the Federal Government, state agencies, conservation districts, and local governments to work collaboratively with water purveyors, land managers, private land owners, land users, and other stakeholders to identify watersheds that can be improved by better forest, rangeland, and soil health measures and to identify or establish voluntary programs within the limits of the legislative appropriations, and other available money to address the health of forests, rangelands, and soil.

Assembly Joint Resolution 2 passed the Assembly and is currently being considered by the Senate Committee on Natural Resources.

Assembly Joint Resolution 3

Assembly Joint Resolution 3 urgers various actions relating to the protection and conservation of land and water.  In the resolution, the Legislature expresses its support for the goal of protecting 30 percent of the lands and water in Nevada by 2030.  The resolution urges:

1. State and local agencies to honor tribal jurisdictions and the rights of indigenous tribes in efforts to protect land and water;
2. Fair treatments of all races in efforts to protect land and water;
3. Private landowners to participate in voluntary programs to protect wildlife habitat and increase carbon sequestration; and
4. Nevada Congressional Delegation to identify opportunities for federal legislation and regulatory action to expand protection and conservation measures on public land in Nevada.

Assembly Joint Resolution 3 passed the Assembly and is currently before the Senate Committee on Natural Resources.

Interested in more legislative updates?  Keep an eye on our blog for a summary of the 2021 water related Senate bills.

(Image Credit: https://mynews4.com/news/local/explaining-the-mining-gaming-and-sales-tax-proposals-of-the-2021-nevada-legislature; https://www.reviewjournal.com/news/politics-and-government/nevada/district-map-in-nevada-assembly-skews-blue-study-finds/)

2021 Idaho legislation seeks to classify irrigation pivot corners for taxation.  House Bill 252 proposes additional language to Idaho Code, Title 63. This language would ensure county assessors classify pivot corners as agricultural land.

Pivot corners are the parts of a square parcel that a center-pivot irrigation system misses.  Idaho law considers land “farmland” and “pasture” as long as it is at least five continuous productive acres.   However, according to House Bill 252’s sponsor, Rep. Aaron von Ehlinger, some county assessors classify unproductive pivot corners as residential or commercial land.  This allows counties to collect higher taxes for that land.

The proposed bill language includes land farmers use in tandem with qualifying agricultural land as those counties should appraise, assess, and tax as land “actively devoted to agriculture.”  This includes pivot corners for center pivot-irrigated crops. The bill also covers land for storing agricultural commodities or equipment.

House Bill 252 unanimously passed the House on March 9, 2021.  It is currently in its third reading in the Senate.  You can track the progress of the bill here.

Interested in more Idaho legislation?  Check out our blogs on the water law bills currently before the Idaho House and the Senate.

(Image credit: https://www.buzzfeed.com/mjs538/100-incredible-views-out-of-airplane-windows; https://agfax.com/2019/01/31/texas-water-management-integrating-center-pivot-irrigation-control-tech/)