Opinion
No. 56351.
03-18-2011
J.W. BENTLEY and Maryann Bentley, Trustees of the Bentley Family 1995 Trust, Petitioners, v. The NINTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for The COUNTY OF DOUGLAS, and The Honorable David R. Gamble, District Judge, Respondents, and Donald S. Forrester; Kristina M. Forrester; Hall Ranches, Llc, A Nevada Limited Liability Company; Thomas J. Scyphers; Kathleen M. Scyphers; Frank Scharo; Sheridan Creek Equestrian Center, Llc, A Nevada Limited Liability Company; Ronald R. Mitchell; and Ginger G. Mitchell, as Intervenors In The Matter of The Determination of the Relative Rights in and To The Waters Of Mott Creek, Taylor Creek, Cary Creek a/k/a Carey Creek, Monument Creek, Bulls Canyon, Stutler Creek a/k/a Stattler Creek, Sheridan Creek, Gansberg Spring, Sharpe Spring, Wheeler Creek No. 1, Wheeler Creek No. 2, Miller Creek, Beers Spring, Luther Creek, and Various Unnamed Sources in Carson Valley and Douglas Valley, Nevada, Real Parties in Interest.
Brooke Shaw Zumpft Thomas J. Hall Bryan C. Stockton
Brooke Shaw Zumpft
Thomas J. Hall
Bryan C. Stockton
ORDER DENYING PETITION FOR WRIT OF PROHIBITION OR MANDAMUS
This original petition for a writ of prohibition or mandamus challenges district court orders permitting real parties in interest to file a response to petitioners' exceptions to the State Engineer's “Final Order of Determination” and imposing a rotation schedule.
As an initial matter, there are procedural deficiencies within this writ petition. In particular, petitioners' certificate of service does not show that petitioners served respondent Judge David R. Gamble, as required by NRAP 21(a). Also, the verification submitted with the petition was made by petitioners' attorney, but does not include an explanation as to why the verification was not made by petitioners. See Thompson v. District Court, 100 Nev. 352, 353–54 n. 1, 683 P.2d 17, 18–19 n. 1 (1984) (explaining that a writ petition may be verified by a petitioner's attorney if the facts are within the attorney's knowledge or the petitioner is unable to verify the petition and the verification states why it is not made by the petitioner). Even after real parties in interest raised these errors in the answer, petitioners made no attempt to cure the lack of service or improper verification. Indeed, petitioners' reply to the answer was likewise not served on Judge Gamble, in violation of NRAP 21(a).
With regard to the substantive issues raised in this petition, while petitioners' challenge to the order permitting real parties in interest to file a response to petitioners' exceptions presents an interesting issue, we conclude that our intervention by way of extraordinary relief is not warranted. See Smith v. District Court, 107 Nev. 674, 818 P.2d 849 (1991). In particular, to the extent that petitioners are aggrieved by any final ruling stemming from real parties in interest's filings, petitioners will be able to raise any pertinent issues related to the challenged order on appeal from the district court's final decree in the judicial review proceeding. See NRS 533.200 (providing for an appeal from a decree in an adjudication of vested water rights); cf. Pan v. Dist. Ct., 120 Nev. 222, 225, 88 P.3d 840, 841 (2004) (explaining that if an order may ultimately be challenged on appeal from the final judgment, writ relief is generally precluded).
As to the order imposing the rotation schedule, we have previously determined that any questions raised by that order are moot because the rotation schedule, by its terms, has already expired. See Bentley v. State Engineer, Docket No. 56551 (Order Dismissing Appeal, January 18, 2011). Accordingly, for the reasons set forth above, we conclude that our intervention by way of extraordinary relief is not warranted, and we
ORDER the petition DENIED.