Judge sets dates for hearings in Fernley flood case | NevadaAppeal.com

Judge sets dates for hearings in Fernley flood case

SCOTT SONNER
Associated Press Writer

RENO – Eighteen lawyers representing flood victims, U.S. and local governments, realtors, insurance companies and others crowded into a federal courtroom Tuesday to begin sorting out who is responsible for the failure of an irrigation canal and resulting damage to hundreds of Fernley homes.

“This is the most lawyers I’ve ever had in a courtroom at one time,” said U.S. District Judge Brian Sandoval, Nevada’s former attorney general.

The judge made no decisions on a variety of motions involving three different lawsuits brought by a total of more than 200 people, including whether the cases even belong in federal court or should be sent back to state court.

He set an April 28 hearing to decide whether to grant an emergency request by flood victims to restrict water flows in the canal at a level lower than what farmers and ranchers want. He set another hearing May 9 on a motion to force Lyon County and the city of Fernley to remove mold from flooded homes.

The U.S. Bureau of Reclamation, which owns the 32-mile earthen canal built in 1903, determined burrowing rodents were the primary cause of the Jan. 5 canal break.

Much of the discussion during Tuesday’s three-hour status hearing was about how quickly Sandoval should act on flood victims’ requests for emergency action and temporary restraining orders.

“The bottom line is it is an emergency,” said Robert Hager, who represents about 175 people in one of the lawsuits.

Hundreds of laboratory tests have found E. coli, fecal chloroform, bacteria and mold in many of the flooded homes, he said.

“There are some homes that have been abandoned and boarded up where potentially deadly bacteria and mold are brewing,” Hager said. Some of those homes are next door to homes still occupied, he said.

“Our experts say that as the mud turns to dust and is inhaled it is potentially deadly,” Hager said.

Brent Kolvet, a lawyer representing Fernley, said it’s premature to order the city and county to repair damage “that they may ultimately not be responsible for.”

“You are putting a huge cart before the horse,” he said.

Even more pressing is the question of how much water to allow to flow through the canal, according to flood victims still living in their homes along the canal.

The Truckee-Carson Irrigation District, which operates and maintains the canal for the Bureau of Reclamation, is named as a defendant in all three lawsuits. Hager’s plaintiffs also are suing Fernley, Lyon County, housing developers and realtors in the area.

TCID halted flows in the canal immediately after the flood until last month, when flows resumed at 150 cubic feet per second – 20 percent of the maximum capacity of 750 cfs.

The bureau has given TCID permission to raise the flows in stages to 250 cfs and then 350 cfs when certain safety measures and new monitoring plans are put in place.

M. Craig Murdy, a lawyer representing TCID, said the district wants to get to the higher level sooner than the end of the month so as to meet its obligations to water users. Some 2,500 to 3,000 farmers and ranchers rely on the water.

Hager filed the motion last week seeking an injunction to cap those flows at 250 cfs for fear of another canal break.

Murdy said “there are some real problems with respect to that motion” and that he’d like several weeks to gather evidence to show the larger flows are safe.

But Sandoval noted there’s “a bit of an urgency with respect to both home owners and downstream users” given the fact the typical irrigation season begins in April.

“Isn’t there a point where downstream water users need more water? I’m no expert but it seems there’s going to come a point where they need more water than is going through there now,” he said, adding that need would have to be balanced against the “chance for another breech.”

Don Springmeyer, representing another group of flood owners, said they intend to add the Bureau of Reclamation as a defendant in their lawsuit at some point.

“TCID says now that they can only do what the Bureau of Reclamation tells them. It’s time to get the people who give the orders in here,” he said.