By Mark Waite

Ministerio Roca Salida failed to establish jurisdiction in federal court in a lawsuit claiming damages from a water diversion project that caused flooding on the Patch of Heaven retreat at Ash Meadows National Wildlife Refuge and failed to show grounds for relief against the defendants, the U.S. attorney’s office claims.

The Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation agreed to represent pastor Victor Fuentes of Ministerio Roca Salida in a lawsuit against the U.S. Fish and Wildlife Service and Ash Meadows National Wildlife Refuge Manager Sharon McKelvey. The suit claims Victor and Annette Fuentes bought 40 acres at Ash Meadows in 2007 for $500,000, then built a dining room, cabins and bunk houses for $700,000, only to encounter severe flooding from three and a half inches of rain in December 2010, three weeks after the U.S. Fish and Wildlife Service rerouted a stream to its original path to help the speckled dace, an endangered fish.

Besides heavily damaging structures, the suit claims rerouting the channel deprived the church resort of a water source.

The plaintiffs bear the burden of establishing the jurisdiction of the subject matter in federal courts, Assistant U.S. Attorney Patrick Rose states in his Nov. 20 motion to dismiss the fish and wildlife service and McKelvey as defendants.

“Also the United States’ sovereign immunity is a question of the court’s subject matter jurisdiction,” Rose said. “Under the principle of sovereign immunity, the United States may only be sued where it has expressly consented to such suit by statute.”

The U.S. sovereign immunity applies to suits against federal agencies and federal employees in their official capacity, the suit states. A plaintiff must allow the court to infer the defendant is liable for the misconduct, he said.

“An agent or officer of the government cannot be held liable for acts performed on behalf of the government,” Rose said in his motion.

Without an implied or express granting of authority to sue the agency, the district court lacks jurisdiction to enter a judgement against the fish and wildlife service, Rose said. The plaintiffs failed to name the United States, the only proper defendant under the Federal Tort Claims Act, he said.

Roca Salida claimed a violation of their right to free exercise of religion under the First Amendment. The church practiced baptisms on the stream that was diverted.

“This court does not have subject matter jurisdiction over such a claim that is purportedly founded on the Constitution,” the U.S. attorney’s office said.

Allegations the defendants violated their water rights duplicates the takings claim, the government argues. When it comes to a request for an injunction to restore their water, Rose said, “the Fifth Amendment does not limit the government’s power to interfere with property rights but rather secures compensation where interference amounts to a taking.”

But the Federal Tort Claims Act provides for monetary damages, not equitable relief, the government claims.

Rose said the Supreme Court ruled a plaintiffs complaint must contain sufficient, well-pleaded facts to make it plausible, not pleading facts consistent with liability with legal conclusions added about a conspiracy, willful and malicious action taken on account of a person’s religion, race and/or national origin.

The federal government attorney argued water in Nevada belongs to the public and water rights merely consist of the right to beneficial use. A water right is a state administrative grant that allows the use of a specific quantity of water for a specific beneficial purpose if water is available free from other claims, the motion states.

Rose said Ministerio Roca Salida can’t claim title to the desert stream, the water rights only consist of the right to appropriate to a beneficial use a quantity of water.

In response, NPRI attorney Joseph Becker said the U.S. government substituted the United States itself for McKelvey as a defendant, the same day Rose filed his motion to dismiss the complaint. Becker said the United States is the appropriate defendant for the takings claim.

The Roca Salida suit states Fuentes is a Cuban refugee who swam seven miles in the ocean to escape Fidel Castro’s regime. Fuentes was harmed when the U.S., the fish and wildlife service and McKelvey, without due process, confiscated their water rights by way of the water diversion project.

“The government now hopes to evade or delay liability for its actions behind the cloak of sovereign immunity and by claiming that the vagaries of Solid Rock’s original complaint are such that the government is somehow deprived of fair notice as to why it is being used,” Becker states.

He said the doctrine of sovereign immunity is like believing the king or dictator can do no wrong — like the regime Pastor Fuentes escaped — which has no place in a constitutional republic. The doctrine of sovereign immunity doesn’t bar a claim for injunctive relief against a federal officer who violated a duty imposed by federal law while acting in their official capacity, he claims.

Becker argues the federal government in its motion to dismiss the defendants, construed the claims and requested relief in a narrow way to argue for dismissal on jurisdiction.

The federal government committed a permanent taking of Fuente’s water rights by carrying out the deficient water diversion project that flooded his property, Becker argues.

Roca Salida claims $86,639 in damages. But the plaintiffs weren’t required to specify an amount of the takings in this case, Becker said, the court needs to determine a legal issue whether a taking occurred and whether public use justifies the use of eminent domain. The statute of limitations could run out on the takings claim before the amount of damages is known, he said.

Becker argues U.S. code gives the court jurisdiction over federal agencies over declaratory and injunctive relief for constitutional violations committed by agencies and their employees.

The Roca Salida suit was amended to include the Administrative Procedures Act and the Mandamus Act, which authorizes actions in district court to compel an officer or employee of the U.S. or any agency to perform a legal duty owed to the plaintiff.

‘This court has the authority to declare unconstitutional actions as such and enjoin their continuance,” Becker said.

Becker said he amended his complaint to specify how the water diversion project was defective; specified Roca Salida’s vested water rights; added an allegation of the defendant’s failure to obtain U.S. Army Corps of Engineer permits and said in their water impact statement to the Nevada Division of Water Resources the plaintiffs excluded any indication of Ministerio Roca Salida.