Who really has rights to Nevada land?

By Conor Shine

Monday, Aug. 31, 2015 | 2 a.m.

The midday sun hangs high in the Amargosa Valley sky as Cuban exile turned Las Vegas pastor Victor Fuentes treks along a path near his 40-acre property.

The meandering trail follows a narrow spring-fed stream, alternating between patches of parched dirt and thick clumps of salt grass. The stream, Fuentes says, used to be his. “We needed that water to practice our faith,” he says.

Ten years after coming to this wide-open vista, he can still remember how it looked the first time he saw it. Green. Alive with flowers and trees. Peaceful ­— the type of place he fled Cuba for.

He bought it with donations from the churchgoers, named it “Patch of Heaven” and invited church summer camps to the property for campfire cookouts and singalongs as well as Bible studies and river baptisms.

“In nature, that’s how we were created,” Fuentes says. “When God wants to talk to you, he wants no distractions. This was a refuge for humans.”

But the place Fuentes is describing doesn’t exist anymore.

After half an hour’s walk, Fuentes arrives at an earthen berm that rises from the banks of the cattail-clogged stream, bending the water’s flow away from Fuentes’ property. On his side of the berm, a sloping wash lined with the husks of withered plants is carved into the dusty terrain.

On the other is the federal government, which says it needed to divert the water to protect a fragile ecosystem home to 26 endangered species, including the 3-inch-long Ash Meadows speckled dace, a grayish-green fish found only here, in a network of spring-fed creeks surrounded by the Mojave Desert.

In that one stream, all of Nevada’s complicated and contradictory relationships to public land is reflected.

Since the West was settled, private landowners have chafed at the federal government telling them how the lands and the water that runs through it can be used. The tension has fueled frequent and sometimes violent showdowns that include the Sagebrush Rebellions of the 1970s and 1990s, and the recent standoff at the Bundy ranch.

It’s a never-ending battle that pits a host of competing claims against one another: conservation vs. economic development, humans vs. the animals that have lived on the land for centuries, the rights of private citizens vs. the public good.

And the legal conflict between Fuentes and the government hinges on fundamental questions.

What are the limits of religious rights? Should the federal government or private citizens decide how land should be used? How do we allocate water when there isn’t enough to go around?

• • •

“It’s a classic debate. Why protect the tiny fish when human needs ought to come first?” says Char Miller, professor of environmental analysis at Pomona (Calif.) College and author of several books, including “Public Lands, Public Debates: A Century of Controversy.”

“But birds, fish and other species have a right to this Earth too.”

In 2012, Fuentes filed suit against the federal government, alleging an unjust taking of private property by the U.S. Fish & Wildlife Service, which manages the 36-square-mile Ash Meadows National Wildlife Refuge that surrounds his land on all sides. The suit also seeks compensation for flood damages and claims Fuentes’ First Amendment religious protections were violated.

When Fuentes and his wife, Annette, arrived in 2006, water from the nearby Longstreet Spring filled the now dry arroyo, winding through a corner of their property before feeding into a downstream reservoir left over from the ranching of previous decades. Like a modern John the Baptist, Fuentes used it to christen congregants — as well as to water his donkeys. At church-sponsored camps, children would relax on the banks or jump in to cool off between Bible studies.

But now, with the stream diverted, the grassy lawns he mowed once a week have receded into barren earth while trees withered and died. As the grass dried up, so too did the baptisms, dropping from a peak of 100 in one month to just seven in the past year, performed in a small above-ground pool at “Patch of Heaven” that Fuentes fills from a well.

Compounding the problems, the newly built channel overflowed during a massive rainstorm in December 2010, flooding the Fuentes’ property and depositing several inches of mud and rock throughout. Damages to several cabins and a mess hall totaled $86,000, Fuentes contends.

“How can you be purposely damaged and not be compensated?” he asks.

Claims and appellate courts have dismissed the claims so far, saying their challenge is too broad. The Fuenteses have appealed to the U.S. Supreme Court, drawing an amicus brief from Nevada Attorney General Adam Laxalt. The court is expected to decide in October whether it will hear that challenge.

Fuentes says his goal is to be repaid for the flood damage and, more importantly, to have the stream restored to his swimming hole and baptismal font.

But there’s only so much water to go around.

• • •

“We have the largest oasis that’s left in the Mojave Desert,” says Ben Jurand, a tour guide at the refuge.

From a distance, Ash Meadows looks like a mirage, an improbable shimmer of green. Approaching on a lonely road off Nevada State Route 160 heading out of Pahrump, the ash and mesquite trees testify to the presence of the largest wetland in Southern Nevada — an environment unlike any other in the world.

“It’s a pretty surprising place,” says Jurand, who calls it a “gem” in the desert. “There are clear turquoise blue pools with vegetation all around them; springs and trees that look like they belong in the Caribbean.”

But the plants, fish and insects that inhabit Ash Meadows have been under attack for more than a century, first by human development and more recently by invasive crayfish, mosquitofish and noxious weeds. Before settlement of the valley, the dace swam in waters fed by 10 springs. By 2009, they were fighting off invasive bullfrogs and other fishes in just two. The goal of the Fish & Wildlife Service is to restore the range of the dace as much as possible.

“A lot of the area was pretty much destroyed,” Jurand said. “The effort has been to restore these natural systems to function on their own.”

Human activity in the area dates thousands of years and includes Nomadic natives, Southern Paiute and Western Shoshone, and European settlers who mined borax and raised cattle after arriving by railroad in the early 1900s.

By the 1960s, ranchers were draining the groundwater at an alarming rate and a peat mine destroyed several marshes in Ash Meadows, wiping out a swath of wetlands that had been home to migratory birds. Bulldozers from the Spring Meadows Ranch knocked down sand dunes for concrete irrigation ditches and large reservoirs. Up sprang 12,000 acres of alfalfa.

Special attention fell on the decreasing water level at Devil’s Hole, an aquifer-fed pool that has carved out a 500-foot deep limestone cavern. In that pool lives the endangered Warm Springs pupfish, one of the world’s rarest fish, whose population has declined from 550 in the early 1970s to only about 65 today. After the pupfish’s plight made it an icon of the conservation movement, the Department of Interior won a Supreme Court decision against Spring Meadows Ranch in 1976 to protect the fish, effectively ending agricultural operations in the area.

The land became a refuge when an environmental group, Nature Conservancy, bought it from a real estate development company in 1984 and turned it over to the Fish & Wildlife Service.

But a dozen parcels totaling less than 1,000 acres remained in private hands, including what became the embattled Fuentes property.

As all of that was happening, though, Fuentes was on the other side of the continent. He was dreaming of a new life, unaware of the incendiary Western property rights issues in which he’d later become embroiled.

• • •

Victor Fuentes had been swimming in the open ocean for several hours when he worried he’d never return to dry land. Earlier that night in January 1991, Fuentes and three friends had jumped into the Atlantic Ocean from Tres Piedras beach near his hometown of Santiago, Cuba, in a bid for freedom.

With the Soviet Union on the brink of collapse in the late 1980s, food and work became scarce and unsteady. Fuentes worked as a butcher but decided to flee after a friend who was a police officer began begging for scraps. If government workers couldn’t make it, how would he? Making matters worse, Fuentes’ mother was stricken with multiple sclerosis, and doctors in Cuba said they couldn’t help her.

Fuentes took a desperate gamble, leaving behind his wife and joining friends to make a 7-mile swim to American-controlled Guantanamo Bay.

When they reached the beach — after a torturous journey that left one friend in need of surgery after choking on a jellyfish — they stumbled upon a group of U.S. military personnel in a pickup truck.

Within a week, Fuentes settled in Las Vegas and got a job washing dishes at the King 8 Hotel, a gritty gambling hall in the shadow of the Strip. There, Fuentes caught the eye of a desk clerk from Michigan, whom he later married. After only a few months in Las Vegas, Fuentes, desperate for money to bring his mother over, began driving cars loaded with cocaine from Northern California to Las Vegas.

His conversion tale: Arrest, prison, bible. After his release, he landed a job as an assistant pastor at a Baptist church, and eventually he started his own nondenominational congregation, Ministerio Roca Solida. After that came his marriage to Annette, followed by a celebratory dinner at a local Subway and a happy life raising their two children. (His mother died before she could emigrate.)

And then Fuentes discovered “Patch of Heaven,” which he bought in 2006 for $500,000, using money donated by a congregant.

Fuentes installed plumbing, air conditioning and electricity, allowing the property to host groups of 50 at a time. Everything he needed to carve out a spiritual retreat was there — including water from the stream.

• • •

“Absent checking the government at every turn, you wind up with despotism,” says Fuentes’s attorney Joe Becker.

An amateur folk guitarist in the early 1990s who studied Austrian economics under Murray Rothbard at UNLV, Becker has spent most of his career fighting what he views as government overreach. After serving as chief legal counsel for Ron Paul’s 2008 presidential campaign, Becker relocated to Reno as the lead attorney for the newly formed Center for Justice and Constitutional Litigation, an arm of the conservative think tank Nevada Policy Research Institute.

One of the first cases to come across Becker’s desk was a plea for help from the pastor.

“I wish I could say it surprised me,” Becker says. “The case is especially poignant here in Nevada, because the government has such an unduly large presence. If anywhere somebody needs to push back against the federal government, it’s here.”

Standing at a plastic table in the dining hall at “Patch of Heaven,” Becker spreads out some of the evidence he’s collected.

On a surveying map sketched in 1881, Becker traces his finger down a dark line representing the stream as it crosses through what is now the Fuentes land. Another surveying map, this one from 1948, shows the stream along the same path. The goal, Becker says, is to prove in court that the river ought to continue to flow where it historically has.

At its core, the case largely comes down to who owns the water that coursed through Fuentes’ property. The answer is tied up in arcane statutes governing water rights in the West under the “first in time, first in right” standard.

Becker has pieced together a 100-year history using maps, land deeds and tax records to document the water rights on the property through a succession of owners, including a U.S. senator and a key figure in the second Sagebrush rebellions of the 1990s. At each step along the way, the small stream flowed through what is now Fuentes’ property.

When he bought the property, Fuentes didn’t ask about water rights. The man from whom Fuentes bought it said he had never encountered problems letting his emus, rabbits and llamas drink from the stream.

As part of their legal defense, the Fuenteses filed an application with the Nevada state engineer in 2011 seeking to prove their vested water rights, but a decision has not been issued by the office.

In court filings, Fish & Wildlife has asserted a prior claim on the water. The agency’s 2009 conservation plan included a diversion of the stream, as well as several others. Refuge managers eventually rerouted a dozen waterways.

Since 1984, the agency has acquired most of the remaining privately held parcels contained in the refuge. Today, there are only six private parcels in the refuge. The Fuenteses wonder whether the stream diversion was an unsubtle way of discouraging them from sticking it out on the land.

“Fight or leave,” as Annette Fuentes puts it.

• • •

But after more than three years of litigation, Fuentes is no closer to the water.

The case has become stuck in a legal thicket. While the main lawsuit may go to trial next year, a separate case has spun off and made its way to the U.S. Supreme Court. The law prevents a plaintiff from bringing the same case in both the U.S. District Court and the U.S. Court of Claims simultaneously, meaning that Fuentes either must ask for the stream to be restored or for monetary damages, but not both, a situation Becker said precludes him from ever being “made whole” for his suffering. Regardless of what the Supreme Court decides, it likely will be years before the dispute is resolved.

No matter what happens with the court case, though, the heart of the dispute is difficult to resolve. A Cuban exile lands in an unfamiliar and hostile landscape, where he sets about baptizing believers in a stream. But his presence puts at risk a fragile ecosystem and the animals that have called it home long before he came there. Who gets what? There are competing answers, and there might not be a way for them to co-exist.

From one point of view, that’s a tragedy. From another, that’s politics. “These lands are public and, therefore, democratic,” says Miller, the professor of environmental analysis. “They’re supposed to be fought over.”

It’s a fight that has been waged throughout the history of Nevada. And whatever the outcome of this skirmish, no truce is in sight.

• • •

“La que me salvo, me rescato,” Fuentes sings from the stage, facing the 30 people gathered in a Las Vegas middle school auditorium to join him in a Spanish-language hymn, “Te Doy Gloria.”

With his 16-year-old son playing drums, Fuentes leads the congregation through several more songs before a nearly hourlong sermon, which includes an update on the suit.

“I ask all of you to keep praying,” Fuentes says as pictures of the ranch’s former beauty are projected on a screen behind him, “because I know one day we’ll have the river back.”

Fuentes is already dreaming about a future where his days aren’t dominated by depositions and court hearings. He’s looking forward to investing even more energy into growing his flock and finding a new home for his congregation that would allow him to conduct a greater number of services.

“It’s not only about ‘Patch of Heaven.’ There are a lot of people suffering the same way we do under the arm of the government,” he says, not mentioning the speckled dace, the Devil’s Hole pupfish, and all the rest. “By winning the case, a lot of people are going to win.”