Court Denies Fernley’s Claim in Suit Over Canal Lining

A U.S. District Court judge has ruled against Fernley again in its lawsuit against the Bureau of Reclamation over the lining of a portion of the TCID canal.

Judge Miranda Du issued the ruling on Jan. 22, the day before oral arguments were scheduled in the case. This is the second time Judge Du dismissed the lawsuit, but after the first time, in December 2022, the city appealed to the 9^th Circuit Court of Appeals, which ruled that Du had erred in refusing to allow Fernley to amend its complaint. The first time, the complaint was dismissed because the court found that its interest in the case was economic, not environmental.

The city’s complaint was based on the Bureau of Reclamation’s Environmental (BOR) Impact Statement for the canal lining project, which was issued in 2020. Attorney David Rigdon, who represents the city on water matters, said the draft EIS doesn’t address the City’s claims that it and private well owners would be harmed by the loss of water seeping into the ground from the canal because of the lining. Landowners and water rights holders David Stix, Jr. and Deena Edmonston were allowed to intervene in the case alongside the city, while the Pyramid Lake Paiute Tribe was permitted to intervene as a defendant.

Rigdon said a hearing in the case was scheduled for Jan. 23. He said he received an email on Jan. 22 from the attorney representing the BOR saying she had been directed by her bosses to request a 30-day postponement of the hearing and needed to know within two hours if the city would agree to the continuance. Rigdon said he replied that didn’t give him time to get everyone together at city hall to make that decision on whether to agree to a continuance, and that the city was ready to go forward with the hearing. 

Shortly afterward, the judge sent out a notice issuing a ruling without a hearing. In her decision, Judge Du wrote that the court denied the plaintiffs’ motion because it finds the EIS and the Record of Decision both reasonable and adequate.

In its defense, the BOR had argued that the case is moot because Phase I of the canal lining is already completed and Phase II of the project, which would involve lining more of the canal, is not currently – and may never be – funded. Fernley argued that further construction could happen at any time if additional funding became available. The court agreed on that point with the Plaintiffs. The judge also ruled that the city did have standing in the case to present its claims.

 “They kept telling us at the time they did the EIS, ‘We're not going to build this for 20 years because we don't have the money to build it,’ and then Congress appropriated money and they built it,” Rigdon said. “So yeah, right now their argument is ‘We're never gonna build Phase II or phase three because there's just not the money to do it.’ Well, all it would take is Congress appropriated the money.”

Judge Du rejected the city’s argument that the court should set aside the EIS or ROD because the BOR declined to run more groundwater models; that the BOR lacked authority to determine the city had no right to groundwater seepage from the canal; or that the BOR had insufficiently considered the impacts of the lining project on groundwater.

It will now be up to the city council to decide whether to appeal the decision. Rigdon said the city has 60 days to file the appeal to the 9^th Circuit Court of Appeals.

“If we don't appeal within the next 60 days then then yes, the case is over,” he said.