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MAY 1 5 2017 EUZABETR A. ono"

CLERK. CF SUPREME couRT IDE:,LITY CLERK -0'

IN THE SUPREME COURT OF THE STATE OF NEVADA

JOHN BOSTA, FRANK MAURIZIO AND OTHERS SIMILARLY SITUATED,

Appellants, VS.

JASON KING, THE STATE ENGINEER, IN HIS OFFICIAL AND PERSONAL CAPACITY, DOES I-XX, ROES I-XX,

Respondents.

DOCKET NO.: 68448

D.Ct. Case No.: CV 36505

FL MAY 1 6 2017

ELIZABETH A. BROWN CLERKQFS P E COVRT

BY EPUTY CLERK

APPELLANT'S REPLY BRIEF

BEHALF OF THE APPELLANTS JOHN BOSTA, in propria persona P.O. Box 42 Armagosa Valley, Nevada 89020 (775) 372-9038 E-mail:

FRANK MAURIZIO, in propria persona 581 West China Street Pahrump, Nevada 89048 (775) 209-5898 E-mail:

BEHALF OF THE RESPONDENTS ADAM PAUL LAXALT, A.G. ATTORNEY GENERAL'S OFFICE 100 N. Carson Street Carson City, Nevada 89701 (702) 684-1208 E-mail:

JUSTINA A. CAVIGLIA, ESQ. DEPUTY ATTORNEY GENERAL 100 NORTH CARSON STREET CARSON CITY, NEVADA 89701

)7- it,373

TABLE OF CONTENTS

TABLE CONTENTS 1-ix TABLE OF CASES ii-vi

REBUTTAL ARGUMENTS AND ANALYSIS

1. THE RESPONDENT'S ARGUMENTS ARE BASED ON A FALSE PREMISE: THE IMPROPER STATUTORY INTERPRETATION OF THE DELEGATED AUTHORITY OF THE ENGINEER. 1

2. DOES THE ENGINEER HAVE THE AUTHORITY TO REGULATE DOMESTIC WELLS?

2

THE APPLICATION OF THE NEVADA UNDERGROUND WATER ACT TO PRIVATE LANDS VIOLATES THE CONSTITUTION AND CONSTITUTES A TAKING. 5

4. WATER RIGHTS ARE REAL PROPERTY - PRIVATE OWNERSHIP. 8

5. THE DISTRICT COURT'S DISMISSAL WAS ERROR. 10

6. JURISDICTION OF ENGINEER CLEARLY ONLY ENCOMPASSES BUSINESSES, PUBLIC UTILITIES, POLITICAL SUBDIVISIONS OF THE STATE AND/OR THE FEDERAL GOVERNMENT

7. RESPONDENT MISSTATES THE APPLICATION OF FEDERAL LAW, HAS MISCONSTRUED THE HISTORY OF WATER LAW AS APPLIED TO THE UNIQUE TRACTS OF LAND IN THIS CASE. I. The Historical Significance of the Lands South of the

37T11 Degree Latitude in Nevada has been completely ignored;

ii. The Inapplicability of the application of the Desert Land Act of 1877 To the Appellants' water and land rights

iii. The Inapplicability of Federal Acquiescence. 12

8. THE UNENFORCED, GROSSLY INEFFICIENT AND WASTEFUL APPLICATION OF PRIOR APPROPRIATION AND BENEFICIAL USE IN NEVADA WATER LAW. I. The inadequacy of the Respondent's Evolution of Prior

Appropriation (Due To the Non-Applicability of the Desert Land Act of 1877 To the Lands Below the 37 th degree Latitude). 16

9. THE COMMON LAW IS NOT ELIMINATED UNLESS SPECIFICALLY ABROGATED BY THE LEGISLATURE. 18

10. WATER LAWS OF THE DIFFERENT STATES ARE ONLY HIGHLY DISTINGUISHABLE WITH REGARD TO LANDS ABOVE THE 37TH LATITUDE IN NEVADA. 19

11. THE RESPONDENT CONTINUES TO IGNORE THE VERY SPECIFIC ARGUMENTS OF THE APPELLANTS RELATING TO NON-COMMERCIAL NON-ARTESIAN PRIVATE WELLS OWNED BY PERSONS NOT DELINEATED IN THE DELEGATING STATUTE, LE., "NATURAL PERSON" AND/OR "INDIVIDUAL." 21

12. THE APPELLANTS' ARGUMENT VII IS RELEVANT AND DOES NOT VIOLATE THE NRAP BECAUSE THE ENABLING ACT REQUIRES THE STATE AND THE FEDERAL CONSTITUTION REQUIRE THE FEDERAL GOVERNMENT TO GUARANTEE THE INHABITANTS OF THE STATE OF NEVADA A "REPUBLICAN FORM OF GOVERNMENT." 22

13. THE RESPONDENT'S POSITION REGARDING THE APPELLANTS' LAND TITLE AS SUCCESSORS IN INTEREST TO THEIR FEDERAL LAND PATENTS IS INAPPOSITE. 26

CONCLUSION 28

CERTIFICATE OF COMPLIANCE 29

- 11 -

CERTIFICATE OF SERVICE 30

TABLE OF CASES CASES CITED: Application of Filippini, 66 Nev. 17, 22, 202 P.2d 535, 537 (1949) 15 Aycock v. Martin (), 37 Ga. 124,92 Am.D. 56 8

Colorado River Water Cons. Dist. v. US., 424 U.S. 800, 819,96 S.Ct. 1236,47 L.Ed.2d 483 (1976) 15

Galloway v. Truesdell, 83 Nev. 13, 26 (1967) 11 Hoke v. Henderson (1833), 4 Dev. 1, 15 N.C. 15,25 Am.Dec. 677 8 Lewes Dairy, Inc., v. Freeman,

401 F.2d 308, certiorari denied 89 S.Ct. 1187, 394 U.S. 929,22 L.Ed.2d 455 (C.A. Del. 1968) 23

Merlin° v. State, 131 Nev. Adv. Opn. 65 (Appeals Ct. 2015) 18

Nevada v. United States, 463 U.S. 110, 143-44, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983) 15

People v. Tibbitts,305 N.E.2d 152, 155 (I11. 1973) 14

Reno v. Flores, 507 U. S. 292, 301-302 (1993) 8

Sanford v. Sanford, 694 NW 2d 283 (S.D S.Ct. 2005) 18

State v. Cutright, 266 N.W.2d 771 (Neb. 1975) 14

State v. Sargent, 449 P.2d 845 (Ore. 1969) 14

Stephens v. Stewart, 165 S.E.2d 572, 576 (Ga. App. 1968) 14

Tenneco Oil Co. v. El Paso Natural Gas Co., 687 P.2d 1049 (1984 Ok 52) 4

Troxel v. Granville, 530 U.S. 57 (2000) 8

US. v. Simmons, 390 U.S. 377, 393-94 (1968) 24

Vansickle v. Haines, 7 Nev. 249,285 (1872) 18

Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610

18,19

Washington v. Glucks berg, 521 U. S. 702, 719 (1997) 8

West Indies v. First Nat'l Bank, 67 Nev. 13, 214 P.2d 144 (1950) 13

STATE BILLS: AB 200 (1985)...

STATUTES: NRS 0.039 NRS 1.030

NRS321.310 26,27 NRS 321.230 26,27 NRS 321.330 26,27 NRS 533.010 1,23,4,14,21 NRS 534.010 2, 14, 21 NRS 534.039 1,34

COURT RULES: None.

NEVADA CONSTITUTION:

FEDERAL ACTS: CONGRESSIONAL ACT OF 1866 (see attached as Exhibit I); (Ceding Pah Ute County of the Arizona Territory to the State of Nevada, Now NKA Cark County and the southern tip of Nye) 12 DESERT LAND ACT of 1877 2,12,13,16, 20, 21 Enabling Act; 13 UNITED STATES STATU I ES AT LARGE, pp. 30-32 (1864); Chapter XXXVI, § 4 12,14,22,26 UNITED STATES CONSTITUTION:

LEGAL TREATSES: http://legal-dictionary.thefreedictionary.com/Fee+Simple 28

REBUTTAL TO RESPONDENT'S ARGUMENTS

1. THE RESPONDENT'S ARGUMENTS ARE BASED ON A FALSE PREMISE: THE IMPROPER STATUTORY INTERPRETATION OF THE DELEGATED AUTHORITY OF THE ENGINEER.

The Respondent bases his entire defense on the improper interpretation of the

definition of "Person" in the delegating statutes. See NRS 533.010 and NRS

534.039. The definition of "person" within the Statutes do no include the terms

"natural person" or "individual." The Respondent insists that this was an error or

oversight by the Nevada Legislature and that they did so in reliance on NRS 0.039.

RAB; P. 30, lis. 12-14 This statute has a very specific purpose and states as follows:

Except as otherwise expressly provided in a particular statute or required by the context, 'person' means a natural person, any form of business or social organization and any other nongovernmental legal entity including, but not limited to, a corporation, partnership, association, trust or unincorporated organization. The term does not include a government, governmental agency or political subdivision of a government.

Does NRS 533.010 and/or NRS 534.039 expressly provide for the definition of

"person?" Yes, they both do. Therefore, NRS 0.039 is not applicable under this

statutory proviso or condition precedent. The second proviso for the adoption or

application of NRS 0.039 would be that the definition of a person is required by the

proviso "required by the context." The question then becomes, "Do NRS 533.010

and/or NRS 534.039 require the adoption of NRS 0.039 by the context of the

1

1 ,1•0•■■ •■•, 1 • Svfl.

language of the Statute?" The Respondent says, "Yes." However, the best answer to

this question is the fact that the Legislature has already purposely removed the terms

"natural person" and "individual" from the statutes in 1985. 12 Therefore, the specific

intent of the Legislature prevents the application of NRS 0.039. Any argument that

' See AB 200 (1985); as follows: 4. "Person" [means-anr n atural person,

representative-thereofil includes a government, a governmental agency and a political subdivision of a government.

2

See AB 200 (1985); as follows: Sec. 54. NRS 533.010 is hereby amended to read

as follows: 533.010 As used in this chapter, "person" includes

state. Sec. 55. NRS 534.010 is hereby amended to read as follows: 534.010 1. As used in this chapter:

1985 Statutes of Nevada, Page 523 (Chapter 127, AB 200) (a) "Aquifer" means a geological formation or structure that transmits water. (b) "Artesian well" means a well tapping an aquifer underlying an impervious

material in which the static water level in the well stands above where it is first

encountered in the aquifer. ( c) "Domestic use" extends to culinary and household purposes, in a single-family

dwelling, the watering of a family garden, lawn, and the watering of domestic

animals. The term also includes the use of geothermal resources for domestic heating

purposes. (d) "Percolating waters" are underground waters, the course and boundaries of which

are incapable of determination. (e) "Person"

1-/,./ SW.,

state , or aJ includes any municipal corporation, power district, political subdivision

of this state or any state and an agency of the United States Government. [agency.]

2

NRS 0.039 applies to NRS 533.010 and/or NRS 534.039 is a nullity. the Engineers

statutorily delegated authority is an ad hoc modification and amendment of the

Statutes in question. NRS 0.039 is clearly inapplicable. As NRS 0.039 cannot be

applied to the delegated authority of the Engineer, all of his arguments become moot.

What then is the argument of the Respondent? The ultimate conclusion of the

Respondent's arguments is that as the titular head of the state agency, the Engineer,

is arguing that he has been delegated the legislative power to expand his own

authority. That is the sum and substance of the Respondent's argument. Based upon

this false premise the Engineer goes on to build an entire expansive new body of law

that does not even exist or, rather, that is outside of his delegated authority. The

Respondent then goes on to extrapolate other allegations of expansive power and

authority. Let's talk about a few of those.

2. DOES THE ENGINEER HAVE THE AUTHORITY TO REGULATE DOMESTIC WELLS?

Does the Engineer have the ability to regulate domestic wells. The answer to

that is: If a "person" so defined in NRS 533.010 and/or NRS 534.039 have a

domestic well, then yes, the Engineer has the authority to regulate THAT domestic

well. The Engineer does not get the power or authority to regulate domestic wells,

just because they are domestic. The Engineer gets his authority from the statutes

which define a person over whom he has authority. So ifthe Appellants own domestic

wells, but they are not so named in the definition of "persons" in NRS 533.010 and/or

NRS 534.039, then NO the Engineer does not have the authority to regulate domestic

wells. The source of the Engineer's authority over domestic wells comes the

ownership of the domestic well by a "person" so named in the statute - not from the

mere title - "domestic well."

The Respondent does nothing but create confusion by ignoring the Statute and

argues all over the place about everything but the delegating statute. The inquiry

should start at the delegating statute, not end there.

The Respondent alleges that Nevada Water Law is well settled. This statement

is irrelevant. It was once well settled that people illuminate their homes with candles

and oil lamps. Now we use electricity and light bulbs. So the term well settled has

very little meaning to the Appellants and shouldn't to this Court. The Appellants are

raising issues offirst impression to this Court and "custom" and "usage" should have

no bearing upon this Court's decision making powers. The Oklahoma Supreme Court

held in Tenneco Oil Co. v. El Paso Natural Gas Co., 687 P.2d 1049 (1984 Ok 52),

that

Custom and usage, as those terms are legally understood, is not the basis

for our holding. We are extremely doubtful that custom and usage may decide a forum, confer jurisdiction, or define private versus

4

public-rights issues. "Custom or usage repugnant to expressed provisions of statute is void." Downey, 116 Okl. 253, 244 P. 173 (1926).

"Custom" and usage is a specious smoke screen defense advanced by the

Respondents.

3. THE APPLICATION OF THE NEVADA UNDERGROUND WATER ACT TO PRIVATE LANDS VIOLATES THE CONSTITUTION AND CONSTITUTES A TAKING.3

In 1939 the Nevada Legislature passed the Nevada Underground Water Act,

ch. 178, stating that all waters above and below the ground were the property of the

State. The Respondent alleges that this created a public trust for "all" waters below

the ground. Lakes, rivers and streams were already in the public domain. The

problem is that the Respondent's interpretation of the word "all" leads to absurd

conclusions. In this case the ultimate conclusion is that the Nevada Legislature

severed the water from the land. Keeping in mind that the Desert Land Act of 1877

only severed the water from the land on federal land - not state lands. The Federal

government can surely severe the water from "their" land. Here, the Respondent is

arguing that the 1939 Act severed the water from everybody's land. This certainly

does not conform to the Desert Land Act or the exercise of the Federal Government

3

Private lands being lands owned by parties not named as a person

5

in that Act. Under Raparian water law this had already taken place for surface water.

However, ground water had still not been added into the public trust doctrine and quit

frankly it doesn't fit well into the Public Trust Doctrine. The 1939 Act essentially

modified the Public Trust Doctrine and expanded it. Is that even possible?

The measure of the Constitutionality of any law should require it to be taken

to its penultimate conclusion. Taking this law to its most expansive conclusion

would mean that the waters under the lands of private property were now public

property placed in trust by the State. It is rhetorical that if these waters were not

considered private property, then this law would not have been required to be passed

for the State to seize it and transfer it out of private ownership. Consequently, the

passage of the Nevada Underground Water Act constituted a "taking," under the

Fourth Amendment of the United States Constitution.

Since the passage of the Nevada Underground Water Act of 1939 not one

property owner has received "just compensation" by the State for the taking of their

water ownership rights, a requirement under the takings clause of the Fourth

Amendment of the United States Constitution. The Respondent is not contesting the

fact that percolating was owned by the land owner prior to the 1939 Act. The logic

of the Respondents escapes the Appellants.

Just compensation must be made for the taking or the Act itself is

6

Constitutionally infirm. The Respondent avers that if a law is passed, it's the law

regardless of whether or not its passage or implementation is unconstitutional. What

this means is, that the Respondent's interpretation violates the Constitution.

Therefore, their interpretation must be an incorrect one.

The only way that the Nevada Underground Water Act could meet

Constitutional muster is that it be interpreted to only include the public lands of

Nevada, which are de minimis. Under this interpretation there is no taking and no

requirement of compensation. The Legislature, this Court, every attorney and literally

every public official takes an oath to support and defend the Constitution of the State

of Nevada and the United States Constitution. Based upon this, the only

interpretation that can be offered without violating that oath of office is that the Act

only concerns public lands.

It is a fortiorari, then, that the Nevada Underground Water Act can not be

interpreted to mean or presumed to include "all" water both above and below the

surface, but can only be related to "all" waters beneath "public lands" that the State

has authority over.

The United States Fourteenth Amendment provides that no State shall "deprive

any person of life, liberty, or property, without due process of law." "We have long

recognized that the Amendment's Due Process Clause, like its Fifth Amendment

7

counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U.

S. 702, 719 (1997). The Clause also includes a substantive component that "provides

heightened protection againstgovernment interference with certain fundamental

rights and liberty interests." Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-

302 (1993). Troxel v. Granville, 530 U.S. 57 (2000).

"Statutes which would deprive a citizen of the rights of person or property

without a regular trial, according to the course and usage of common law, would

not be the law of the land." Hoke v. Henderson (1833), 4 Dev. 1, 15 N.C. 15, 25

Am.Dec. 677. See also Aycock v. Martin Q, 37 Ga. 124, 92 Am.D. 56.

4. WATER RIGHTS ARE REAL PROPERTY - PRIVATE OWNERSHIP.

The respondent argues that there is no ownership of water in Nevada and that

use of ground water by the Appellants not named as a "person" in the delegating

statutes of the Engineer - only have "access" to it The Respondent further alleges

that water is not a right, it is a privilege and that water rights consist of only the right

to access water.

Water is required for life, just as air and food are. In fact, water is required to

grow food for subsistence purposes. Is life a privilege as well? If the bare minimum

that you need to maintain your life is privileged - then your life is privileged as well.

8

This is yet* another absurd result of the Respondent's theory of water in Nevada.

Every human being has a right to subsistence. Subsistence is means a level of

production which is sufficient for one's own personal use." Thus, the use of water

is also right to life issue. This is especially true when the well is owned by the land

owner.

This Court must agree that the right to life is a God given right and not a right

granted by the State of Nevada or any government entity. If governments were able

to grant this as a matter of right, then by implication this mean that this so-called right

is not a right at all but a mere it. This would result in anomalous consequences and

it would give the Engineer the power of life and death. God given rights cannot be

denied by government, in fact governments are instituted among men to protect these

God given rights - not to turn them into privileges. The citizens have jealously

guarded against governments having this authority because the right to create carries

with it the authority and power to destroy that which it has created. Historically

governments have always taken on a life of their own and became self-serving -

which is not their delegated authority. Governments have been granted the limited

power to grant privileges and also taken them away, this has generally only been

authorized for artificial entities which the State creates, such as corporations.

9

5. THE DISTRICT COURT'S DISMISSAL WAS ERROR.

The Appellants have already shown through clear and convincing evidence that

the Engineer position is an incorrect one. This has been shown in the following

manner.

• The Engineer has no statutory authority over the Appellants or their wells;

• If you are not a "person" as defined by the Engineer's delegating statute;

• Both the terms "natural persons" and/or "individuals" were specifically

removed from the Engineer's delegating statutes;

• The Appellants have clearly shown that NRS 0.039 does not apply because

neither of the conditions precedent for the application of to the statute apply.

• As the Appellants are not subject to the jurisdiction of the Engineer then why

would they have to request an administrative hearing from that Agency?

• The decision not to request an administrative hearing and volunteer themselves

to the jurisdiction of the Engineer was made after careful consideration;

• If the Appellants were not cannot be required to exhaust remedies that do not

apply to them;

• If the Appellants are not subject to the Engineer's authority, then their wells

and water rights are not subject to the Engineer's authority.

• There is no statute that provides the authority being averred by the Engineer.

If the Appellants are not subject to the Engineer's statutes, then they cannot

have failed to exhaust their administrative remedies, because they do not apply

to the Appellants.

• The unlawful exercise of the Engineer's authority over the Appellants, alone,

should have been enough to grant the preliminary injunction;

- 10 -

• State law gives original jurisdiction to the District Court to hear matters related

to real property and there appears, no where, in the Nevada Constitution or in

the Statutes where this original jurisdiction is shared with the Engineer. This

is yet another anomalous result of the Respondent errant legal theories.

The Nevada Constitution and the Nevada Revised Statutes are controlling over

the Engineer's conduct. Where the Engineer's conduct conflict or abrogates the

Constitution and/or other statutes, then the conduct of the Engineer must fail.

6. JURISDICTION OF ENGINEER CLEARLY ONLY ENCOMPASSES BUSINESSES, PUBLIC UTILITIES, POLITICAL SUBDIVISIONS OF THE STATE AND/OR THE FEDERAL GOVERNMENT

The Appellants' argument is completely supported by this Court's prior ruling

on statutory interpretation. "The expression of one thing, is the elimination of all

others." This Court in Galloway v. Truesdell, 83 Nev. 13, 26 (1967) stated,

The maxim "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS", the ex s ression of one thin is the exclusion of another has been repeatedly confirmed in this State. See also: In re Bailey's Estate, 31

Nev. 377, 103 P.232 (1909); Leake v. Blasdel, 6 Nev. 40 (1870); State

v. Arrington, 18 Nev. 412,4 P. 735 (1884); Ex Parte Arascada, 44 Nev.

30, 189 P. 169 (1920). The language in State v. Hallock, 14 Nev. 202

(1879), is also very important in this regard. There this Court said: "It is true that the constitution does not expressly inhibit the power which the legislature has assumed to exercise, but an express inhibition is not necessary. The affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power in the legislature to establish a different policy. 'Every positive direction contains an implication against anything contrary to it which would

frustrate or disappoint the purpose of that provision. The frame of the

government, the grant of legislative power itself, the organization of

the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance.' People v. Draper, 15 N.Y. 544." (Emphasis from original.) (Bold & underlined emphasis is that of Appellants)

7. RESPONDENT MISSTATES THE APPLICATION OF FEDERAL LAW, HAS MISCONSTRUED THE HISTORY OF WATER LAW AS APPLIED TO THE UNIQUE TRACTS OF LAND IN THIS CASE. I. The Historical Significance of the Lands South of the 37 TH Degree

Latitude in Nevada has been completely ignored; ii. The Inapplicability of the application of the Desert Land Act of 1877

To the Appellants' water and land rights iii. The Inapplicability of Federal Acquiescence.

Starting with the Desert Land Act of 1877, this Act has no application on the

water rights that are being discussed here because these water rights involve areas of

land that were not Federal Public Lands in 1877. In 1866 Congress ceded the land

South of the 37 th Latitude to the State of Nevada (formerly a remnant of the Arizona

Territory). This area of land completely encompasses Clark County and the Southern

tip ofNye County. The demarcation of the 37 th Latitude line is approximately 6 miles

North of Beatty, Nevada.

In the Congressional Act of 1866 there is not one word about any federal

reservations of public land or water. Further, the Act does not state that the lands

ceded to Nevada were ceded under the same terms and conditions as lands in the

Enabling Act. There is no legal authority to support that these conditions are even

- 12 -

applicable to the 1866 Act. Therefore, the lands upon which the Appellants property

sat, in 1867, were exclusively Nevada lands - not Federal Public Lands. As Federal

law can only apply to federal land, the Desert Land Act of 1877 only applied to the

federally reserved lands North of the 37 th Parallel and within the State of Nevada.

As such, the Respondent's constant reference to the Desert Land Act of 1877

are inapposite to the case at bar and have nothing to do with the water rights of the

Appellants. The Respondents use of the Desert Land Act as authority regarding the

severance of the water from the land is inapposite and constitutes mere speculation

as it relates to Appellants' Land which at that time was not subject to the Desert Land

Act of 1877. Repeal of Nevada's common law doctrines is mere speculation by the

Respondents.

Speculation as to the repeal ofthe common law is insufficient for a finding that

it has been repealed. "Of course, purpose to repeal the common law should not be

merely a matter of speculation." Cf West Indies v. First Nat'l Bank, 67 Nev. 13,214

P.2d 144 (1950). Currently, the Respondent's assertions are unsupported as the land

and water rights in question were ceded to the State of Nevada 1866, approximately

ten years prior to the Desert Land Act, which Respondents allege to have severed the

water from "federal" land.

It is without question that the courts of this State are without the lawful

- 13 -

authority to make any changes in the common law of the State. This authority lies

only with the State Legislature, whose authority is only limited by the State

Constitution and the Enabling Acts, e.g., setting forth that the Legislature may make

no laws which are repugnant to "the principles of the Declaration of Independence."

See Enabling Act of 1864.

Many state judges adopt a stricter standard toward delegations that do their •

federal confreres. In some states, the law is still where it was at the time of the

Panama and Schechter cases; in others, the judges even talk in terms of a rigid maxim

against delegation of an essentially legislative function (e.g., Stephens v. Stewart, 165

S.E.2d 572, 576 (Ga. App. 1968). Cf. State v. Cutright, 266 N.W.2d 771 (Neb. 1975),

or the power to make law (e.g., People v. Tibbitts, 305 N.E.2d 152, 155 (Ill. 1973);

State v. Sargent, 449 P.2d 845 (Ore. 1969)). Cited from Schwartz, ADMINISTRATIVE

LAW, §2.12 (1982). It is the Appellants' contention that not even the Legislature can

invade their common law right to their percolating water. All of the trappings of

transferring their case to a legislative court, such as the State Engineer's

administrative hearing process, are missing, e.g., incorporation, meeting the

definitions set forth in NRS 533.010 et seq. and NRS 534.010 et seq., operating in

a fashion that would trigger the Public Rights Doctrine.

As the United States Supreme Court has held that the adjudication of water

- 14 -

rights is properly classified as an in rem proceeding. See Nevada v. United States, 463

U.S. 110, 143-44, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983); Colorado River Water

Cons. Dist. v. US., 424 U.S. 800, 819, 96 S.Ct. 1236,47 L.Ed.2d 483 (1976) (treating

pending state court action as a proceeding in rem); [T]he United States Supreme

Court has "recognized that actions seeking the allocation of water essentially

involve the disposition of property and are best conducted in unified proceedings."

(Discussing two cases in separate states involving the same water rights). Colorado

River Water Cons. Dist. v. US., 424 U.S. 800, 819, 96 S.Ct. 1236, 47 L.Ed.2d 483

(1976)(treating pending state court action as a roceedin in rem). And, Nevada law

treats water rights as real property. See Application of Filippini, 66 Nev. 17, 22, 202

P.2d 535, 537 (1949).

Under doctrine of separation of powers the independence of one branch from

the others and requirement that one department cannot exercise powers of the other

two is fundamental in our system of government. Const. Art. 3, §1; art 4, §1 et seq.;

art 5, §1 et seq; art 6, §1. The District Court has original jurisdiction over disputes

involving real property and the Engineer cannot share this power by conducting

hearings on real property rights regarding water. The Engineer's practice violates the

separation of powers doctrine.

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8. THE UNENFORCED, GROSSLY INEFFICIENT AND WASTEFUL APPLICATION OF PRIOR APPROPRIATION AND BENEFICIAL USE IN NEVADA WATER LAW. I. The inadequacy of the Respondent's Evolution of Prior

Appropriation (Due To the Non-Applicability of the Desert Land Act of 1877 To the Lands Below the 37"' degree Latitude).

Prior appropriation is the bastard child of the Desert Lands Act of 1877. This

Act was passed as it directly related to commercial development of the desert. It had

nothing to do with private land or domestic wells. The Act of 1877 only applies to

lands lying above the 37 th Degree of Latitude. South of that line of demarcation lies

Nevada Public Land. In 1877 the Appellants land was not federal land and therefore

the 1877 Act cannot be presumed to have severed the water from the land. Simply,

the Federal Government can only severe the water from their land, not the State's.

Currently, the Engineer exercises this water authority over numerous pieces of

commercial property in Nye County. Many of these properties lie dormant and still

retain their commercial irrigation water rights. The method of retention is beneficial

use. These properties must use a minimum amount of water to show beneficial use.

Unfortunately the only beneficial use that is obtained from pumping water from these

commercial wells is the retention of their water rights. This water is pumped, at

night, to the surface. It is not used for any other purpose than maintaining their well

permits and either evaporates or seeps back into the ground. This practice, which is

-16-

promulgated by the prior appropriation and beneficial use doctrines currently

employed, has done nothing but damaged the water table in the Pahrump Valley.

Others who have applied for and received commercial water usage permits

from the Engineer have yet to commit their permits to beneficial use and yet they

continue to maintain them. How is that possible? In some cases it has been as much

as 15 or 20 years and the Engineer continues to renew these permits, without showing

beneficial use. Under this so-called capture rule, it is said that "First in time, first in

use" is the golden rule. However, it appears that this rule is no rule at all. For those

who are in favor with the Engineer they get an extension. For those that are not in

favor with the Engineer, they needlessly pump water to the surface merely to show

that they pumped x-amount of water and no beneficial use is demonstrated - except

to keep the well permit.

The Engineer has spoken publically several times in Pahrump and gives

speeches about water conservation. Yet, mean while, he is allowing wasteful and

damaging practices to be done and committed by the commercial sector. Not one of

those people are using the water connected to their permits for subsistence and

because of the inefficient, improperly managed and granting of special privileges

where they are inappropriate. In the end the practices of the Engineer have rendered

the statutes null and void, having reverted to a non-republican form of government

-17-

called "the good old boy system." That is the current water law in Nevada, not the

Statutes that are being alleged by the Respondent.

9. THE COMMON LAW IS NOT ELIMINATED UNLESS SPECIFICALLY ABROGATED BY THE LEGISLATURE.

This Court has previously stated that when the Legislature has not stepped in

to address a particular question, that the Court "may look to the common law for an

answer," See Vansickle v. Haines, 7 Nev. 249,285 (1872) (stating that the common

law, "so far as it is not repugnant to or inconsistent with, the constitution or laws of

the United States, or the laws of the territory of Nevada, shall be the rule of decision

in all courts of this territory. . . . [The common law] should remain in force until

repealed by the legislature" (internal quotations omitted)). Merlino v. State, 131

Nev. Adv. Opn. 65 (Appeals Ct. 2015). The modern conflict between emerging

public policy and the common law was addressed eloquently and succinctly in the

case of Sanford v. Sanford, 694 NW 2d 283 (S.D S.Ct. 2005), a case that also

addressed the issue of the judicial abrogation of common law within this same

conceptual paradigm, to wit:

In Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610, we were asked to abolish the tort of alienation of affections as it had been abolished in a large majority of the states. The tort had been viewed by Justices of this Court in a previous case as "[an] archaic holdover[ ] from an era when wives were considered the chattel of their spouse." Id. ¶ 17,589 N.W.2d

- 18 -

at 615 (quoting Hunt v. Hunt, 309 N.W.2d 818, 821 (S.D.1981)). However, in Veeder we declined to abolish this tort as its source was a statute, not case law:

The "public policy" argument of Kennedy cannot be supported by our system of law the sovereign power is expressed by the statutes enacted by the legislature. SDCL 20-9-7 which authorizes Michael's cause of action in this case is such a statute. Under SDCL 1-1-24 the common law and thus an abrogation of the common law are in force except where they conflict with the statutory will of the legislature as expressed by SDCL 1-1-23. . . . As no constitutional defects are claimed . . ., we are compelled to leave the cause of action intact and instead defer to the legislature's ability to decide if there is a need for its elimination. "[W]e are not legislative overlords empowered to eliminate laws whenever we surmise they are no longer relevant or necessary." Veeder, 1999 SD 23, if 23, 589 N.W.2d at 616 (quoting IN RE CERTIFICATION OF QUESTIONS OF LAW (Knowles), 1996 SD 10, ¶ 66, 544 N.W.2d 183, 197).

Here, the Appellant's argue that the State has made multiple legal assumptions in

assuming the elimination of the common law that are patently incorrect. Let's talk

about those. The Respondent alleges that there has been a repeal of the common law

definition of percolating water - by implication. Repeals by implications are not

favored.

10. WATER LAWS OF THE DIFFERENT STATES ARE ONLY HIGHLY DISTINGUISHABLE WITH REGARD TO LANDS ABOVE THE 37TH LATITUDE IN NEVADA.

The Respondent leaves out several very important elements in their conclusions

- 19 -

that the laws of others states are inapplicable. First, other States have been in

existence far longer than Nevada's Court. Second, Nevada has historically been the

least populated state in the continental United States. Third, many of the other states

have appellate courts, Nevada has only recently amended its Constitution to adopt

one. Fourth, since Nevada has been so unpopulated, the Appellate courts of this State

have not had the volume to present many of the issues that appeared in other states.

It is also more than a little disturbing that the Respondent ignores the fact that

many of other States do not currently have large tracts of federal lands or federal land

patents, as California, Nevada, and Arizona did. Because Nevada is the one of the

few states left that has allowed the Federal Government to own most of their land, 45

the State has been applying federal law that is inapplicable to the lands situate South

of the 37th Latitude and federal cases which are based upon lands which were within

the geographical boundaries of the 1877 Desert Lands Act.

What is particularly disturbing to the Appellants is that many of the decisions

of this Court, which the Respondent is attempting to apply to this case, are from water

4

Approximately 86% state wide and 96% in Clark County - where there is no federal land, pursuant to the 1866 Act. How did that happen? Somebody needs to go to jail.

Hawaii protested the ownership of large tracts of land in Hawaii and the locals convinced the Federal Government to return most of it. Perhaps because there is actually very little land in Hawaii. Only Nevada has been a sucker for over a 150 years.

- 20 -

rights issues North of the 37 th degree Latitude (which is the geographical area that the

1877 Desert Land Act affected). South of the 37 th parallel, it did not apply. These

cases are clearly distinguishable and inapplicable to the circumstances of this case.

II. THE RESPONDENT CONTINUES TO IGNORE THE VERY SPECIFIC ARGUMENTS OF THE APPELLANTS RELATING TO NON-COMMERCIAL NON-ARTESIAN PRIVATE WELLS OWNED BY PERSONS NOT DELINEATED IN THE DELEGATING STATUTE, LE., "NATURAL PERSON" AND/OR "INDIVIDUAL."

The beginning of any inquiry into the authority of any administrative agency

is an examination of the delegating authority. In this case, it is an examination of the

definition of the term "person" as defined in those Statutes. See Statutes NRS

533.010, et seq. and NRS 534.010, et seq. Not included in those statutes, in the

definition of "person" are "natural person" and/or "individual." The Appellants are

both natural persons and/or individuals. As such, they are not named in the Statutes

and are not subject to the regulatory powers of the Engineer.

However, there are entities which are named in NRS 534.014 which state the

extend and authority of NRS 534.014, which are "any municipal corporation, power

district, political subdivision of this or any state, or an agency of the United States

Government." The question then arises, "Can these entities own private wells?" The

Answer to this question is, "Yes." So, to more succinctly answer the question, "Does

- 21 -

the Engineer have jurisdictional authority over domestic wells?" The Answer is,

"Yes." But, not because they are domestic wells, but because of who their owners

or operator are, that being "persons" named and defined in the Statute. The Engineer

does not specifically have jurisdiction over domestic wells - per se.

Private persons are not subject to the police powers of the State unless they

engage in a privileged activity, such as a commercial business which is open to the

general public or through the act of incorporation. If their business is not open to the

public then the police powers end, unless you are a corporation. Once a private

person engages in either of these privileged activities they effectively waive their

right to privacy and are then subject to regulation. Neither of these legal principles

apply in this case because both of the Appellants have not engaged in any activity

which would subject to them to same. Private citizen means just that - "Private."

12. THE APPELLANTS' ARGUMENT VII IS RELEVANT AND DOES NOT VIOLATE THE NRAP BECAUSE THE ENABLING ACT REQUIRES THE STATE AND THE FEDERAL CONSTITUTION REQUIRE THE FEDERAL GOVERNMENT TO GUARANTEE THE INHABITANTS OF THE STATE OF NEVADA A "REPUBLICAN FORM OF GOVERNMENT."

The Respondent's Counsel makes a lot of assumptions regarding the

correctness and applicability of the Appellants' arguments in Section VII of their

Opening Brief. However, the Respondents ignore the fact that, "Mong-lived and

-22 -

wide-spread usage alone does not insulate administrative system from meritorious

attack. Lewes Dairy, Inc., v. Freeman, 401 F.2d 308, certiorari denied 89 S.Ct. 1187,

394 U.S. 929 22 L.Ed.2d 455 (C.A. Del. 1968).

Essentially, Appellants' argument involves legal issues which are esoteric,

hyper-technical and deal with issues not taught in law school. As such, they appear

foreign to Respondents' counsel and perhaps even this Court. However, the

Appellants assure this Court that the issues contained in Section VII have been fully

vetted by them and they sincerely believe them to be both legally and intellectually

accurate and worthy of consideration.

As the Appellants demonstrated in their Opening Brief the United States

Supreme Court has made it clear that the application of the use of legislative courts

with regard to the private citizens of a State is inappropriate. Clearly, legislative

court are only appropriate for federal territorial citizens, maritime law and the

military. Administrative proceedings are legislative proceedings. Therefore, these

proceedings only provide due process protections under the penumbra of the 14 th

Amendment. This quintessentially eliminates all protections guaranteed under the

Bill of Rights. The Appellants are natural persons and private citizens of the State

of Nevada and cannot be forced to waive any Constitutional Rights in order to

exercise their First Amendment Right (to redress the government for grievances).

- 23 -

Any attempt by the State government, such as forcing the Appellants into a

legislative court (administrative hearing), which diminishes their legal standing under

the Constitution and does so by forcing the Appellants to waive their Fourth, Fifth

and Sixth Amendment rights in order to be heard - is unconscionable.

This illegitimate requirement forces the Appellants to waive personal

jurisdiction, which is the core of their argument regarding the Engineer's authority.

Why would they surrender to the Engineer's authority when they are not named as a

"person" in the statutes granting the Engineer his powers. The United States Supreme

Court in US. v. Simmons, 390 U.S. 377, 393-94 (1968), found it "intolerable' that

'one constitutional right should have to be surrendered to assert another."

This is especially cogent when the Appellants are not a "person" defined in the

statutes authorizing and providing powers to the Engineer. Clearly, this is an attempt

by the Appellants to educate and convince this Court that there is a complete lack of

understanding by the legal community regarding the dichotomy between legislative

and judicial court proceedings - and the rights associated with them. The Appellants

refused to be coerced into waiving a right to exercise a right and stand firmly upon

their position. Their position is not frivolous, it is an argument for "the extension,

modification, or reversal of existing law or the establishment of new law;" This case

is no different than Trujillo v. State, 117 Nev. 75 (2013). In that case the State

-24 -

laughed at• Trujillo's counsel and argued that his arguments regarding the

Unconstitutional elimination of the Writ of Error Coram (a common law writ) were

frivolous, as this Court held in 1955, in the Bigness case that it was archaic and

eliminated it from the Courts' Constitutional authority. The only difference between

this case and Trujillo is that Trujillo was represented by an attorney. Here the

Appellants arguments, supported by federal decisions, have flown under the radar of

the judiciary for over 100 years (See the Insular Cases). The time has come for the

Courts investigate this substantive and valid issue of law.

It is interesting that the Respondents merely dismiss the arguments in this

section and fail to respond to the administrative over reaching of the district court's

original jurisdiction regarding matters involving real property. The Respondents'

counsel has cited to no Constitutional or statutory measure or other construct which

permits or constitutes a waiver of the district court's original jurisdiction over these

matters. Generally, courts are very jealous regarding the usurpation of their power

and authority. As this Court is acutely aware that water rights are real property,

supporting this usurpation would be a direct violation of the Nevada Constitution and

consequently this panels' own official oaths. Although the lower court has already

acquiesced to this position, this panel should take pause and consider ultimate

conclusion of this course of conduct. The State Legislature, purposely and

-25-

intentionally removed the Appellants from the Engineer's authority by removing the

terms "natural person" and "individual" from the delegated authority of the Engineer.

Therefore, the Engineer cannot violate the original jurisdiction of the district court

through the waive of his administrative wand create some ad hoc legislation that

grants him over persons specifically removed from his jurisdictional authority.

The State's position would be repugnant to the principles of the Declaration

of Independence and thus a nullity. [See 13 UNITED STATES STATUI ES AT LARGE, pp.

30-32 (1864). Chapter XXXVI, § 4; Nevada's Enabling Act] Declaring that "the

Constitution, when formed, shall be republican, and not repugnant to the

Constitution of the United States, and the principles of the Declaration of

Independence. The principles ofthe Declaration of Independence embody the liberty

of the individual above governments right to control and regulate the citizenry.

13. THE RESPONDENT'S POSITION REGARDING THE APPELLANTS' POSITIONS AS SUCCESSORS IN INTEREST TO THEIR FEDERAL LAND PATENTS IS INAPPOSITE.

The Appellants would like to incorporate, by reference, the Nevada Revised

Statutes that speak to the Federal Land Patents. Specifically, NRS 321.310 - Land

acquired by patent from Federal Government to be conveyed by patent; NRS 321.230

- Form and contents of patents; and NRS 321.330 - Record of issued patents. Of

-26 -

particular import is NRS 321.330. This statutory section states specifically that the

land conveyed by the Federal patent, must be reconveyed in FEE SIMPLE, the only

exception being the mineral rights subject to NRS 321.300. Mineral rights are not

water rights.

The Respondent has ignored this statute which basically blows his entire

argument into the wind. Just for the Respondent's benefit the Appellants has

included the definition of "Fee Simple" below.

Fee Simple The greatest possible estate in land, wherein the owner has the right to use it, exclusively possess it, commit waste upon it, dispose of it by deed or will, and take its fruits. A fee simple represents absolute ownership of land, and therefore the owner may do whatever he or she chooses with the land. If an owner of a fee simple dies intestate, the land will descend to the heirs.

http://legal-dictionary.thefreedictionary.com/Fee+Simple

That means that when the common law definition of percolating water described the

water beneath their patents as part of the land - it is still part of the land and remain,

forever, part of the land.

If the Court rules against the Appellants on this issue. They will simply sue the

State in Federal Court to enforce their contractual rights and seek damages. Any

negotiation will include the firing of those involved.

6eg

CONCLUSION

The Respondent and Respondent's counsel have ignored the law, have violated

the rights of the Appellants and have committed egregious acts of malversion against

the great citizens of the State of Nevada. This appeal must be granted and the

property rights of the Appellants, which include the percolating waters beneath their

soil, must be respected by this Court and the Respondent; or the Court will reveal that

the entire system of government in Nevada is a complete fraud.

Respectfully submitted this 12th day of May, 2017.

JO BOSTA, IN PROPER PERSON P.O. Box 42 Armagosa Valley, Nevada 89020 (775) 537-5412

FRANK MAURIZIO, INMOPER PERSON 581 West China Street Pahrump, Nevada 89048 (775) 209-5898

BOSTA, IN PROPER PERSON

FRANK MAURIZIO, IN PR R PERSON

CERTIFICATE OF COMPLIANCE

I hereby certify that I have read this appellate reply brief, and to the best of my

knowledge, information, and belief, it is not frivolous or interposed for any improper

purpose. I further certify that this brief complies with all applicable Nevada Rules

of Appellate Procedure and ADKT 0467, which requires the following (Counsel has

checked the boxes that he is in compliance with):

[x] Every assertion in the brief regarding matters in the record to be supported by a reference to the page of the transcript or appendix where the matter relied on is to be found;

[x] That the Typeface is 14 point or larger; [ ] That the Reply Brief contains [6,773 words] more/less than 7,000 words or 650

lines (monospaced) of print; [x] That the footnotes are in the same size print and typeface as the body; [ ] That the page limitation in a REPLY BRIEF of 15 pages has not been exceeded

without specifically requesting permission; [x] I understand that I may be subject to sanctions in the event that the

accompanying brief is not in conformity with the above requirements of the Nevada rules of Appellate Procedure (ADKT 0467).

[x] NON-COMPLIANCE (Any non-compliance with the requirements of ADKT 0467, has been requested by Appellant(s)/counsel to be waived in the form of a Motion accompanied with this brief). Dated this 12th day of May, 2017

-29 -

Their last known addresses.

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that the above and foregoing Appellants

Reply Brief was submitted on May 12, 2017 and served upon the Respondent's

counsel through the United States Mail, in a postage prepaid envelope and addressed

as follows:

NEVADA ATTORNEY GENERAL ADAM PAUL LAXALT, A.G. 100 N. CARSON STREET CARSON CITY, NEVADA 89701-4717

JUSTINA A. CAVIGLIA, ESQ. DEPUTY ATTORNEY GENERAL 100 NORTH CARSON STREET CARSON CITY, NEVADA 89701-4717

JASON KING, STATE ENGINEER OFFICE OF THE STATE ENGINEER 901 S. STEWART ST., STE. 2002 CARSON CITY, NEVADA 89701- 5253

SERVICE FACILITATOR Third Party individual

LHIBIT 1

THIRTY–Mini CONGRESS. Suss. L Ca. 71, 72, 73.

a port of the -United States, via Canada, if the said produce was actually in transitu and detained by ice when the recent reciprocity treaty with Canada expired.

APPROVED, May 2, 1866.

43

CHAP. =W. —An Act to providefor the better Organization of the Pay Department of the Navy.

Be it enacted by the Senate and House if Representatives of the United States of America in Congress assembled, That, from and after the pas-sage of this act, the active list of the pay corps of the navy shall consist of eighty paymasters, forty passed assistant paymasters, and thirty assistant paymasters. Paymasters shall be regularly promoted and commissioned from passed assistant paymasters, and passed assistant paymasters from assistant paymasters, and all passed assistant paymasters authorized by this act to be appointed who have not heretofore been appointed and e0101••

missioned as assistant paymasters and all assistant paymasters hereby authorized to be appointed shall be selected from those who have served as acting assistant paymasters for the term of one year, and who were eligi-ble to appointment in the grade of assistant paymasters when they were ap-pointed acting assistant paymasters, as aforesaid ; subject, however, to such examinations as are required by law, and such as may be established by the Secretary of the Navy.

Ste. 2. And be it farther enacted; That passed assistant paymasters shall give bonds for the faithful performance of their duties in the sum of fifteen thousand dollars, and that their annual pay shall be, at sea, fif-teen hundred dollars ; on other duty, fourteen hundred dollars ; on leave or waiting orders, twelve hundred dollars.

APPROVED, May 3, 1866.

May 8,1866. See ch. 181. Post, p. 70. Pay corps of

the navy.

Appointment of paymasters, pancpd assistant paymasters, Sto.

Exszoin' ations.

Bonds and pay of passed assist-antpapnasters.

CHAP 7.X1riTi —An Act concerning the Boundaries of the State of Nevada. May 6,1866.

Be it enacted by the Senate and House of Representatives of the United Boundaries of States of America in Congress assembled, That, as provided for and con- Nava"' sented to in the constitution of the State of Nevada, all that territory and tract of land adjoining the present eastern boundary of the State of Ne-vada, and lying between the thirty-seventh and the forty-second degrees of north latitude and west of the thirty-seventh degree of longitude west of Washington, is hereby added to and made a part of the State of Ne-vada.

SEC. 2. And be it farther enacted, That there is hereby added to and made a part of the State of Nevada all that extent of territory lying within the following boundari es, to wit: Commencing on the thirty-seventh degree of north latitude, at the thirty-seventh degree of longitude west from Washington ; and running thence south on said degree of longitude to the middle of the river Colorado of the West; thence down the mid-dle of said river to the eastern boundary of the State of California; thence northwesterly along said boundary of California to the thirty-seventh degree of north latitude; and thence east along said degree of latitude to the point of beginning: Provided; That the territory mentioned in this section shall not become a part of the State of Nevada until said State shall, through its legislature, consent thereto : And provided far- state to gam ther, That all possessory rights acquired by citizens of the United States Its assent. to mining claims, discovered, located, and originally recorded in compli- Possessors' twee with the rules and regulations adopted by miners in the Pah-Rana- gr a tic,' ,Taa?g gat and other mining districts in the Territory incorporated by the valid. provisions of this act into the State of Nevada shall remain as valid sub- sisting milling claims ; but nothing herein contained shall be so construed as granting a title in fee to any mineral lands held by possessory titles in Title in fee not the mining States and Territories. &anted.

APPROVED, May 5,1866.