William Jacob SITZ, appellant and cross-appellee, v. Ellen Katherine SITZ, appellee and cross-appellant.
*472 Barry D. Geweke, of Stowell, Kruml, Geweke & Cullers, P.C., L.L.O., for appellant.
Cheryl C. Guggenmos, of Guggenmos & Peterson, Broken Bow, for appellee.
*473 HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
After 10 years of marriage, William Jacob Sitz sought a dissolution of his marriage to Ellen Katherine Sitz and a division of the marital property. William and Ellen had a premarital agreement, and this appeal concerns the effect of such agreement upon the division of the property.
In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be affirmed absent an abuse of that discretion. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
The premarital agreement stated that William and Ellen wanted to "set apart" the property that was accumulated by each of them prior to their marriage. The parties disclaimed any right of inheritance or any interest in the property of the other that was accumulated prior to the marriage. Each party represented that they had made full disclosure of all property they currently held. The agreement provided that property then held in the individual names of each party would remain their sole and separate property. The agreement, which was offered at trial, contained attachments that purportedly listed the property of the parties at the time of the marriage.
William and Ellen married on June 3, 1995. This was a second marriage for both, and no children were born of the marriage. Thereafter, William remained employed selling animal health supplies and Ellen continued to work as a family counselor. In November 2001, Ellen and a colleague opened their own business, Sandhills Center for Services, Inc. (Sandhills Services). An exhibit that purported to compare the parties' W-2 income showed that in 2005, Ellen earned $30,146 and William earned $122,242. The 2005 end-of-year balance sheet of Sandhills Services indicated that the business had a negative equity of $31,551.
At trial, Ellen claimed that the premarital agreement was not enforceable because it did not disclose the ranch owned by William, a Pfizer annuity, and a property settlement debt to William's first wife. The trial court found that even if William's property statement did not disclose ownership of the ranch, there was no doubt that Ellen was aware William owned the ranch. The court also concluded there was no evidence to suggest that Ellen would have refused to sign the agreement had she known the ranch was to be considered premarital property.
At the time of the marriage, William had a Pfizer annuity with a vested accrued monthly benefit of $1,269 that would commence when he turned age 65. William stated he was not aware of the annuity when the premarital agreement was executed. The property settlement debt from William's previous marriage was approximately $33,750, which the trial court found to be a relatively small percentage *474 of his premarital estate. Although the Pfizer annuity and the property settlement debt owed by William were not disclosed in the agreement, the court determined that the nondisclosure of these facts did not result in the agreement's being unenforceable.
The trial court awarded the ranch to William subject to all encumbrances. The court concluded that Ellen was not entitled to a share of the increased value of the ranch because it was premarital property and there was no evidence that her contributions to managing and operating the ranch resulted in an increased value.
Evidence was presented concerning improvements to the ranch that were made with assets earned through the effort of both parties during the marriage. The improvements were valued at approximately $32,500, and the trial court awarded Ellen a percentage of these improvements.
The trial court determined that the $1,269 monthly benefit from the Pfizer annuity was premarital property. However, during the marriage, William earned an additional monthly benefit of $2,549. The court awarded Ellen one-half of the benefit earned during the marriage ($1,274 per month) to begin when William turned 65. William was ordered to prepare a qualified domestic relations order to effectuate the above transfer of the annuity.
A Pfizer savings plan was included in William's property statement attached to the premarital agreement. The approximate value of the savings plan on the date of the marriage was $28,631. The trial court awarded William this amount and the interest on such amount as premarital property. Because the court had no evidence as to earnings on the investment, the court applied a rate of return of 6 percent per year and determined that the approximate earnings on that investment during the marriage were $52,563. The value of the savings plan as of December 1, 2005, was $371,817.
The record showed that during the marriage, contributions to the Pfizer savings plan were made by William's employer and through deductions from his paychecks. The trial court held that earnings and benefits earned through employment were marital property. It deducted the above-described $52,563 to obtain the marital value of the savings plan, which the court found was $319,254. Ellen was awarded $159,627, or one-half the net value of the savings plan. William was ordered to prepare a qualified domestic relations order to reflect that division.
The other assets divided between the parties are not at issue, except for a Dodge truck. The parties were ordered to pay their individual debts incurred since December 1, 2005. Each party was ordered to indemnify and hold harmless the other party for such liabilities and all debts encumbering property received by each party.
William was ordered to pay $13,939 to the clerk of the court as a property settlement, to be payable to Ellen at $583 per month commencing on the first of each month beginning May 1, 2007, until paid. The trial court ordered William to pay alimony of $750 per month commencing May 1 for a period of 24 months. The alimony would terminate upon the death of either party or Ellen's remarriage. William was ordered to pay $5,000 in costs within 120 days of the entry of the decree, as well as $5,000 of Ellen's attorney fees in addition to any temporary allowance of such fees taxed as additional costs.
William claims the trial court erred (1) in awarding Ellen $159,627 of his Pfizer *475 savings plan, (2) in awarding her a portion of his Pfizer annuity, (3) in finding that Ellen was entitled to one-half the value of the improvements to the ranch, (4) in finding that Sandhills Services had a "negative marital value" for purposes of asset division, (5) in ordering William to pay a property settlement judgment of $13,939, (6) in ordering him to pay $750 per month in alimony for 24 months, and (7) in ordering him to pay $5,000 of Ellen's attorney fees.
Ellen cross-appeals, claiming the trial court erred in failing to consider William's use of marital funds to pay his first wife a $33,750 property settlement award as a credit to Ellen's marital assets.
There are two principal issues for our resolution: What assets should the trial court have treated as marital property, and did the court make a fair and equitable division of the marital property? Under Neb.Rev.Stat. § 42-365 (Reissue 2004), the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006). In the case at bar, the value of the assets is not in dispute.
William asserts that the intent of the premarital agreement was that Ellen would not share in the benefits of his Pfizer savings plan. He argues that because the savings plan was described in the premarital agreement and because the Uniform Premarital Agreement Act describes "property" as an interest, present or future in real or personal property, including income and earnings, all increases in value of the Pfizer savings plan should not be considered marital property. See Unif. Premarital Agreement Act, 9C U.L.A. 39 (2001). We disagree.
The definition of "property" in the Uniform Premarital Agreement Act is simply a definition of the term as it is used in the act. However, that definition was not incorporated into the parties' premarital agreement. The premarital agreement stated that the parties agreed to disclaim any right to or interest in property accumulated "prior to" the marriage. The agreement said nothing about property acquired during the marriage, and the record reflects that the parties combined their incomes in a joint account and acted as if both parties had a right to the money.
As a general rule, all property accumulated and acquired by either spouse during the marriage is part of the marital estate, unless it falls within an exception to the general rule. Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998). William's contributions to the savings plan were made with deductions from his Pfizer paycheck, which was marital property. Accordingly, the contributions to the savings plan made during the marriage and the returns earned during the marriage were subject to division by the trial court. Thus, because the court merely awarded Ellen one-half of the benefits earned during the parties' marriage, we find no abuse of discretion.
William argues that the trial court erred in awarding Ellen a portion of the Pfizer annuity. He again relies upon his interpretation of the word "property" in the premarital agreement as meaning present or future property and argues that the annuity was his property at the time of *476 the marriage and that any increase in value during the marriage should be his sole property. As pointed out above, the premarital agreement did not allow each party to keep the benefits earned through his or her employment during the marriage. Therefore, the general rule regarding the division of retirement plans applies.
Pursuant to Neb.Rev.Stat. § 42-366(8) (Reissue 2004), retirement plans are to be included in the marital estate. In the case at bar, the marital estate included only that portion of the pension plan earned during the marriage. (The amount of the pension plan that was earned prior to the marriage was set aside to William.) William earned an additional $2,549 in monthly benefits through his employment during the marriage, and this money was subject to division by the trial court in accordance with the same principles applied to the savings plan because it was marital property. The court awarded one-half of the additional $2,549 to Ellen. The court's division of this benefit was not an abuse of discretion.
William argues that the trial court erred in finding that Ellen was entitled to one-half the value of the well that was added to the ranch and one-third of the value of the improvements made to the home located on the ranch. He claims that because Ellen did not contribute any of her earnings toward these improvements to the ranch, she should not share in the value of the improvements to his premarital property. These improvements were paid for with funds earned during the course of the marriage and were therefore marital property that was subject to division. Ellen made no claim to the increase in value of the ranch as a whole, and we cannot say that the trial court abused its discretion in making this small award regarding improvements to the ranch.
Evidence at trial showed that the ranch was worth approximately $332,000 in June 1993, and in December 2005, the value had increased to $800,000. Ellen did not seek a share of the increase in this value because it was basically an increase in the value of the land. She did, however, seek a share of the value of the improvements placed on the property during the marriage that were paid for with funds out of the parties' joint checking account. Included in these improvements were the cost of a new well at $10,000 and improvements to the home of $22,500, which included new carpet, linoleum, curtains, wallpaper, interior paint, a patio door, a bay window, a front door, a lower door, bathroom tile, kitchen cabinets, a deck, underground sprinklers, and landscaping. It was admitted at trial that the joint checking account was used to pay for these improvements and other assets, including a boat and trailer, an International tractor and dual loader, a Honda all-terrain vehicle, an antique John Deere tractor, a Harley-Davidson motorcycle, and a John Deere riding mower. The trial court did not abuse its discretion in awarding part of the value of the improvements to Ellen.
William argues that the trial court erred in finding that Sandhills Services had a "negative marital value" for purposes of the property division. The business was marital property, and the court did not abuse its discretion in considering the negative value of the property in making its distribution of marital assets between the parties. At trial, Ellen produced a balance sheet for Sandhills Services that showed a negative total equity of $31,551. This negative value was obtained from the corporation's accountant, who had *477 been subpoenaed to testify. There was no evidence as to an alternate value for the corporation, and accordingly, the court used that as the value of this marital asset.
William claims that the trial court erred in awarding the property settlement judgment of $13,939 to Ellen, because the court included the value of improvements to the ranch at $32,500 and the negative value for Sandhills Services of $15,776, which we have decided above. William contends an additional error occurred when the court included the value of a 1996 Dodge Ram truck in dividing the marital estate. He claims that because the ranch purchased the truck, the truck should not be included as part of the marital estate.
However, the record reflects that Ellen assisted William in the operation of the ranch and that the parties' shared in the ranch's profits or losses. Accordingly, because the truck was purchased with money that otherwise would have been distributed to the parties through profits, it was within the trial court's discretion to consider the truck property acquired with marital assets and subject to the division of the marital estate.
William argues that the trial court erred in ordering him to pay $750 per month in alimony for 24 months. This argument has no merit. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006). In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criteria is one of reasonableness. Id.
The record reflects that in 2005, Ellen earned $30,146 while William earned $122,242. Ellen had moved from Kearney, Nebraska, to Loup County to live on the ranch. She invested time in assisting with the ranch and supporting William's career. The substantial disparity in the parties' income, combined with the support Ellen provided to the ranch and William's career, demonstrate that the trial court's award of alimony was reasonable under the circumstances.
William argues that the trial court abused its discretion in awarding Ellen attorney fees. In an action for dissolution of marriage, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and general equities of the case. Id. We conclude the trial court did not abuse its discretion in ordering William to pay $5,000 in attorney fees.
Ellen assigns on cross-appeal that the trial court erred in failing to credit her for William's premarital debt paid with marital funds. She asserts that although she brought debt into the marriage and that that debt was paid with marital funds, her debt was disclosed in the premarital agreement, thereby making payment of her premarital debt with marital funds significantly *478 different than the payment of William's premarital debt.
Both parties had premarital liabilities that were paid from marital funds. The record shows that the trial court excluded all premarital debt from its calculations, regardless of the parties' disclosure. We conclude that the trial court did not abuse its discretion in not allowing Ellen to receive a credit in the amount of the marital funds used by William to pay his undisclosed premarital debt.
Finding no merit to the errors assigned on appeal and cross-appeal, we affirm the judgment of the district court dissolving the marriage, dividing the property between the parties, and awarding alimony and attorney fees.


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matches: V. V. V. V. V. V.


WALKER RIVER IRRIGATION DISTRICT; Nevada Department of Wildlife; Fenili Family Trust, c/o Peter Fenili and Veronica Fenili, Trustees; Six N Ranch, Inc., c/o Richard and Cynthia Nuti; Michael Nuti; Nancy Nuti; Ralph E. Nuti; Mary E. Nuti; Lawrence M. Nuti; Leslie Nuti; Mica Farms, LLC, c/o Mike Faretto; John and Lura Weaver Family Trust, c/o Lura Weaver, Trustee; Smith Valley Garage, Inc., c/o Dan Smith and Shawna Smith; Donald Giorgi; Lorie Mcmahon; Merle Mcmahon; Centennial Livestock; Lyon County; Annett’s Mono Village; F.I.M. Corporation; R.N. Fulstone Company; James T. Fousekis, Trustee; Chris H. Gansberg, Jr.; Faye E. Gansberg; Todd Gansberg; Hunewill Land & Livestock Co., Inc.; David Sceirine; Pamela Haas; Virginia Lake Mutual Water Company, Defendants-Appellees.
Appellants: Mineral County, Nevada and Walker Lake Working Group, Sean A. Rowe, Mineral County District Attorney, P.O. Box 1210, Hawthorne, NV 89415, Simeon M. Herskovits, Advocates for Community & Environment, P.O. Box 1075, El Prado, NM 87529-1075, Attorneys for Mineral County, Nevada and Walker Lake Working Group.
Before: A. Wallace Tashima, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.
Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, we respectfully certify to the Supreme Court of Nevada the question of law set forth in Section III of this order. The answer to the certified question may determine an issue pending before this court and its resolution will have significant implications for Nevada state water law. There is no clearly controlling precedent in the decisions of the Nevada Supreme Court.
We hold Mineral County’s public trust claim for the reallocation of the waters of Walker River and the Takings Clause claim in abeyance pending the result of certification.
The circumstances here are virtually identical to those that led to the Nevada Supreme Court’s decision in Mineral County v. Nevada Department of Conservation & Natural Resources, 117 Nev. 235, 20 P.3d 800, 802–05 (2001), in which Mineral County and the Walker Lake Working Group (the “Working Group”) brought essentially the same suit as this one. In Mineral County, the Nevada Supreme Court ultimately declined to exercise jurisdiction in light of the federal district court’s continuing and exclusive jurisdiction over the Walker River Basin litigation. See id. at 807. We reproduce the relevant background here in brief.
The Walker River Basin covers about 4000 square miles, running northeast from its origins in the Sierra Nevada Mountains in California before turning south and ultimately flowing into Walker Lake in Nevada. The first quarter of the basin lies in California, and California accounts for a majority of the precipitation and surface water flow into the basin. The vast majority of the water is consumed across the border in Nevada.
Walker Lake is about 13 miles long, five miles wide and 90 feet deep—a large lake by most any measure. But its size and volume have shrunk significantly since they were first measured in 1882. By 1996, Walker Lake had retained just 50 percent of its 1882 surface area and 28 percent of its 1882 volume. Today’s Walker Lake also suffers from high concentrations of total dissolved solids (“TDS”)—meaning it has a high salt content, low oxygen content and a high temperature.
These conditions have drastically degraded the lake’s environmental and economic well-being. The high TDS concentrations have proven so inhospitable to fish species that, according to Mineral County, much of the lake’s fishing industry “has been eliminated for the time being.” Walker Lake’s decline also threatens its status as an important shelter for migratory birds, and it has “drive[n] away the many Nevadans and other Americans who used Walker Lake for recreational enjoyment and economically productive activities.” Although the parties dispute the cause of Walker Lake’s troubles, it seems clear that upstream appropriations play at least some part, together with declining precipitation levels and natural lake recession over time.
In an effort to protect and rehabilitate Walker Lake, Mineral County intervened in the long-running litigation over water rights in the Walker River Basin. That litigation began in 1902, when one cattle and land company sued another in the United States District Court for the District of Nevada over appropriations from the Walker River. After considerable back and forth in state and federal court—including a Supreme Court decision holding that the Nevada federal court had prior, exclusive jurisdiction over the action, see Rickey Land & Cattle Co. v. Miller & Lux, 218 U.S. 258, 262, 31 S.Ct. 11, 54 L.Ed. 1032 (1910)—the case ended in 1919.
Five years later, the United States brought a new action in Nevada federal court, seeking to establish the water rights of the Walker Lake Paiute Tribe. After 12 more years of litigation—bringing us to 1936—that proceeding resulted in the Walker River Decree. The Walker River Decree adjudicated the water rights of hundreds of claimants under the doctrine of prior appropriation.1 The Decree also created the Walker River Commission and the United States Board of Water Commissioners. The federal district court in Nevada has maintained jurisdiction over the Decree and its administration ever since.
In 1987, the Paiute Tribe intervened in the Walker River litigation to establish procedures for reallocating water rights under the Decree. Since that proceeding’s conclusion in 1988, the Nevada State Engineer reviews all applications to change allocations under the Decree in Nevada, subject to review by the Nevada federal district court. It appears that Nevada’s prior appropriation law, which has largely been codified, governs the Engineer’s decisions and the district court’s review. See, e.g., Nev. Rev. Stat. § 533.370; see also Greg Walch, Water Law: Treading Water Law—A Nevada Water Rights Primer, 6 Nev. Law. 18, 18 (Nov. 1998) (discussing the history of prior appropriation and its codification in Nevada). Next, in 1991, the Paiute Tribe and the United States sought recognition of the Tribe’s right to a certain additional amount of water from the Walker River, under a principle that Native American tribes have superior water rights based on their relationship to the federal government. That case is pending before this panel. See United States v. Walker River Irrigation Dist., No. 15-16478.
In 2015, the district court dismissed the amended complaint in intervention. First, the district court held Mineral County lacked standing to assert its public trust claim. It concluded Mineral County’s claim “was based purely on a parens patriae theory” of standing—i.e., that Mineral County did not assert any of its own interests, only those of its citizens—and that a county lacks the ability to sue as parens patriae.
Notwithstanding its conclusion on standing, the district court also addressed the merits of Mineral County’s public trust claim. It concluded the public trust doctrine may factor into future allocations of water, but that using the doctrine to reallocate rights already adjudicated under the Decree would constitute a taking and require just compensation. Invoking the political question doctrine, the court concluded it lacked authority to order Nevada to effectuate such a taking. The district court also held, without analysis, that Walker Lake is not part of the Walker River Basin under the Decree, and therefore that the Decree prohibits allocating any water specifically to the lake.
Mineral County timely appealed. We have concluded the district court erred in dismissing the amended complaint in intervention for lack of standing.3 The remaining issue—whether the Walker River Decree can be amended to allow for certain minimum flows of water to reach Walker Lake—depends on whether the public trust doctrine applies to rights previously adjudicated and settled under the doctrine of prior appropriation and permits alteration of prior allocations.4 This is an important question of Nevada water law we believe should be decided by the Nevada Supreme Court.
Lawrence, although formally recognizing the doctrine for the first time, traced public trust principles in Nevada law back to the state’s founding, concluding the doctrine was “based on a policy reflected in the Nevada Constitution, Nevada statutes, and the inherent limitations on the state’s sovereign power.” Id. at 613. The court also noted it had applied public trust principles in several of its earlier decisions. One of those decisions, Mineral County v. Nevada Department of Conservation & Natural Resources, appears to be particularly relevant here.
Mineral County involved the very case now under consideration, filed by Mineral County and the Working Group directly in the Nevada Supreme Court while the county’s motion to intervene in this case was pending. Although the Nevada Supreme Court dismissed the action based on the federal court’s prior exclusive jurisdiction, two aspects of Mineral County are relevant here. First, the Nevada Supreme Court effectively invited the federal court to certify the public trust question at issue here. See Mineral County, 20 P.3d at 807 n.35 (“[Mineral County and the Working Group] argue that if their motion to intervene in the federal court is eventually granted, they will seek to have this court decide the scope of the public trust doctrine pursuant to the federal abstention doctrine. If the federal court reviews this question, it can certify a question regarding the public trust doctrine pursuant to NRAP 5; therefore, the issue need not necessarily be addressed via the extraordinary remedy of a writ.”).
Although the original objectives of the public trust were to protect the public’s rights in navigation, commerce, and fishing, the trust has evolved to encompass additional public values—including recreational and ecological uses. Additionally, although the original scope of the public trust reached only navigable water, the trust has evolved to encompass non-navigable tributaries that feed navigable bodies of water. This extension of the doctrine is natural and necessary where, as here, the navigable water’s existence is wholly dependent on tributaries that appear to be over-appropriated.
... [T]he existence of the public trust doctrine in Nevada appears to be beyond debate. ... This court has itself recognized that ... public ownership of water is the most fundamental tenet of Nevada water law. Additionally, we have noted that those holding vested water rights do not own or acquire title to water, but merely enjoy a right to the beneficial use of the water. This right, however, is forever subject to the public trust, which at all times forms the outer boundaries of permissible government action with respect to public trust resources. In this manner, then, the public trust doctrine operates simultaneously with the system of prior appropriation.
If the current law governing the water engineer does not clearly direct the engineer to continuously consider in the course of his work the public’s interest in Nevada’s natural water resources, then the law is deficient. It is then appropriate, if not our constitutional duty, to expressly reaffirm the engineer’s continuing responsibility as a public trustee to allocate and supervise water rights so that the appropriations do not substantially impair the public interest in the lands and waters remaining.
Id. at 807–09 (footnotes and internal quotation marks omitted). No Nevada Supreme Court decision has formally adopted Justice Rose’s concurrence, but Lawrence discussed it as persuasive authority in the development of Nevada’s public trust law. See 254 P.3d at 610–11.
In light of Lawrence, all parties agree the public trust doctrine exists in Nevada. They disagree, however, over the doctrine’s scope and whether it permits reallocation of rights settled under the separate doctrine of prior appropriation by the Walker River Decree. No controlling Nevada precedent reconciles these doctrines, and the parties advance conflicting proposals.
Mineral County, for example, contends the public trust doctrine requires the State Engineer to reconsider previous allocations and, in doing so, to reserve a specified minimum flow for Walker Lake regardless of any other rights or considerations. Although Mineral County points to a number of general principles suggesting the public trust doctrine applies to Walker Lake in some form, it has not presented authority for a version of the doctrine that holds absolute supremacy over the competing doctrine of prior appropriation.
The Lyon County appellees sit at the opposite end of the spectrum. They contend, essentially, that once water rights have been adjudicated and settled by decree, they are vested and no longer within the purview of the public trust doctrine. Lyon County is correct that Nevada considers water rights settled by decree “vested.” See Nev. Rev. Stat. § 533.090 et seq. (entitled “Adjudication of Vested Water Rights”). Nevada law refers to water rights settled by decree as “final” and “conclusive,” id. § 533.210, and the Nevada State Engineer—charged with administering Nevada’s statutory water law—may neither “carry out his or her duties ... in a manner that conflicts with any ... decree or order issued by a state or federal court,” id. § 533.0245, nor authorize any change in water use that “is inconsistent with any applicable federal or state decree,” id. § 533.3703. There is, moreover, significant authority stressing the importance of finality in the adjudication of water rights. See, e.g., Arizona v. California, 460 U.S. 605, 620, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (“Certainty of rights is particularly important with respect to water rights in the Western United States. ... The doctrine of prior appropriation ... is itself largely a product of the compelling need for certainty in the holding and use of water rights.”).Lyon County’s position nonetheless appears to suffer from the same shortcoming as that of Mineral County. It does not explain why the public trust doctrine must completely yield to the doctrine of prior appropriation (or, more precisely, to the decrees resulting from adjudications under the prior appropriation doctrine and Nevada’s statutory water law). The principles of finality on which Lyon County rests are encapsulated in Nevada’s statutes and endorsed by the Supreme Court, but it is not clear they would compel Nevada to conclude that rights already adjudicated are exempt from the public trust.
the most fundamental tenet of Nevada water law [is that] “the water of all sources of water supply within the boundaries of the state whether above or beneath the surface of the ground, belongs to the public.” Indeed, even those holding certificated, vested, or perfected water rights do not own or acquire title to water.
Desert Irrigation, Ltd. v. Nevada, 113 Nev. 1049, 944 P.2d 835, 842 (1997) (alteration omitted) (quoting Nev. Rev. Stat. § 533.025). Based on this statement, Justice Rose concluded in Mineral County that even “those holding vested water rights” hold “[t]his right ... forever subject to the public trust.” 20 P.3d at 808. Quoting Justice Rose, Lawrence said the same thing in its exposition of the public trust doctrine (albeit without holding that vested water rights are subject to the public trust). See 254 P.3d at 611; see also Mineral County., 20 P.3d at 808–09 (Rose, J., concurring) (opining that “the public trust doctrine operates simultaneously with the system of prior appropriation” and urging the Nevada Supreme Court “to expressly reaffirm the [Nevada State] [E]ngineer’s continuing responsibility as a public trustee to allocate and supervise water rights [pursuant to the public trust doctrine]”). Thus, Nevada might not altogether exempt vested, adjudicated rights from the public trust doctrine.
Under Justice Rose’s view, that water rights have been settled by adjudication and decree may be relevant to balancing the public trust doctrine against competing principles of Nevada water law. But it does not necessarily mean the public trust—itself a fundamental principle of law—cannot disturb them.
This case brings together for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes. Ever since we first recognized that the public trust protects environmental and recreational values, the two systems of legal thought have been on a collision course. They meet in a unique and dramatic setting which highlights the clash of values. Mono Lake is a scenic and ecological treasure of national significance, imperiled by continued diversions of water; yet, the need of Los Angeles for water is apparent, its reliance on rights granted by the board evident, the cost of curtailing diversions substantial.
... The prosperity and habitability of much of this state requires the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use relating to the source stream. The state must have the power to grant nonvested usufructuary rights to appropriate water even if diversions harm public trust uses. Approval of such diversion without considering public trust values, however, may result in needless destruction of those values.
We conclude that whether, and to what extent, the public trust doctrine applies to appropriative rights settled under the Walker River Decree is an open question. Because this question has significant implications for Nevada’s water laws and because we cannot be certain how the Nevada Supreme Court would resolve this matter, certification on this question of law is appropriate.
Mineral County’s appeal presents an open and important question under Nevada law that may be determinative of an issue essential to the resolution of the claims raised in the present case. We therefore respectfully request that the Supreme Court of Nevada accept and decide the question certified. “We recognize that the [Nevada Supreme] Court may, in its discretion, reword the certified question.” Progressive Gulf Ins. Co. v. Faehnrich, 627 F.3d 1137, 1140 (9th Cir. 2010). We further agree to abide by the decision of the Nevada Supreme Court as specified in Rule 5 of the Nevada Rules of Appellate Procedure, which states “[t]he written opinion of the Supreme Court stating the law governing the questions certified ... shall be res judicata as to the parties.” Nev. R. App. P. 5(g).
In light of our decision to certify the issue set forth above, the submission of this appeal for decision is withdrawn, and all further proceedings in this case before our court are stayed pending final action by the Supreme Court of Nevada, save for any petition for rehearing regarding this order or the concurrently filed memorandum disposition. The Clerk is directed to administratively close this docket, pending further order. The Clerk of this court shall forward a copy of this order, under official seal, to the Supreme Court of Nevada, along with copies of all briefs and excerpts of record that have been filed with this court. The parties shall notify the Clerk of this court within 14 days of any decision by the Nevada Supreme Court to accept or decline certification. If the Nevada Supreme Court accepts certification, the parties shall then notify the Clerk of this court within 14 days of the issuance of the Nevada Supreme Court’s opinion.
Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, we include here the designation of the parties who would be the appellants and respondents in the Nevada Supreme Court, as well as the names and addresses of counsel.
Under the doctrine of prior appropriation, “[t]he first appropriator of the water of a stream passing through the public lands ... has the right to insist that the water shall be subject to his use and enjoyment to the extent of his original appropriation, and that its quality shall not be impaired so as to defeat the purpose of its appropriation.” Lobdell v. Simpson, 2 Nev. 274, 277–78 (1866) (quoting Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 153–54 (1858) ).
Under the public trust doctrine, states hold navigable waterways within their borders in trust for the good of the public. See Lawrence v. Clark County, 127 Nev. 390, 254 P.3d 606, 607 (2011); see also Mineral County, 20 P.3d at 807 (Rose, J., concurring) (“In its most fundamental terms, the public trust doctrine provides that ... all of a state’s navigable waterways are held in trust by the state for the benefit of the people and that a state official’s control of those waters is forever subject to that trust.”).
In a concurrently filed memorandum disposition, we hold Mineral County has standing to assert its public trust claim. Furthermore, we have concurrently decided that Walker Lake is within the Walker River Basin. See United States v. U.S. Bd. of Water Comm’rs, No. 15-16316.
We hold the subsequent takings claim in abeyance pending the result of certification.
This test appears to be of limited relevance here because it addresses alienation of trust lands. The issues here involve the scope of the public trust doctrine and its relationship to the doctrine of prior appropriation and Nevada’s statutory water law.
Lyon County and the Nevada Department of Wildlife (NDOW) also suggest Nevada law already incorporates the public trust doctrine by requiring that appropriated water be put to a “beneficial use.” The Nevada Supreme Court has not yet considered this question. As in National Audubon, “no responsible body has ever” expressly considered the public trust in making allocation decisions. Nat’l Audubon, 189 Cal.Rptr. 346, 658 P.2d at 728; see also Mineral County, 20 P.3d at 808 (Rose, J., concurring) (“If the current law governing the water engineer does not clearly direct the engineer to continuously consider ... the public’s interest in Nevada’s natural water resources, then the law is deficient.”).
If the Nevada Supreme Court determines the public trust doctrine applies and allows for reallocation of rights settled under the doctrine of prior appropriation, it may wish to answer a further question: does the abrogation of such adjudicated or vested rights constitute a “taking” under the Nevada Constitution requiring payment of just compensation?


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Inter-IKEA Systems B.V., Olof Palmestraat 1, NL-2616, The Netherlands.
Representatives: Fross Zelnick Lehrman & Zissu, P.C., attn: Angela Kim, 866 United Nations Plaza, New York, NY 10017, USA.
Polanski, U1. Dietla 13/2, Krakow, 31-031, Poland.
7 East Redwood Street, Third Floor, Baltimore, MD 21202, USA.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the Center) by e-mail on November 21, 2000, and a hardcopy was received by the Center on November 22, 2000. The Center acknowledged the receipt of the Complaint on November 24, 2000.
On November 28, 2000, the Center sent to BulkRegister.com, Inc. a request for verification of registration data. BulkRegister.com, Inc confirmed to be the Registrar, and that Polanski is the Registrant of the domain name <ikeausa.com> and informed that the current status of the domain name is Registrar LOCK.
The Center verified that the Complaint satisfied the Rules and the Supplemental Rules and that payment was properly made. The Panel is satisfied that this is the case.
On December 1, 2000, the Complaint was properly notified in accordance with the Rules, paragraph 2(a), and the administrative proceedings commenced. Since no communication was received from the Respondent within the time limit set, on December 27, 2000, the Center sent a default notification to the Complainant.
On January 15, 2001, the Center notified the Parties that an Administrative Panel, composed of a single member, Dr. Gerd F. Kunze, had been appointed and that the Panelist had duly submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the Center.
No further submissions were received by the Center or the Panel, the date scheduled for issuance of the Panel�s decision was therefore January 28, 2001.
The Complainant is an internationally active company in the field of home furnishing and household wares. The founder of the company started to use the trademark IKEA in 1950 and published the first IKEA catalogue in 1951. Since then the business has grown and today the Complainant has 155 furnishing stores in 29 countries, including Poland and the United States. In Poland the first IKEA store was opened in 1990 and today 8 outlets, including one in Krakow, exist in the country. In the USA, the first outlet was opened in 1985 and in 1990 a success story article about IKEA in "Money" mentions that since then 6 outlets were opened all over the country. As can be seen from other articles submitted by the Complainant, its IKEA business is well implemented in the US market. In 1999 Complainant's sales of IKEA furnishings and accessories totaled over US $ 8 billion.
The Complainant is the owner of over 1200 trademark registrations for the wordmark IKEA and a design mark combing the word IKEA with graphical elements, in more than 70 countries, including Poland (the oldest dating back to 1983) and the United States (since 1986), and covering a wide range of products and services. Exhibit C to the complaint provides a data bank printout providing a partial listing of Complainant's IKEA trademarks worldwide and Exhibit D provides for copies of the registration certificates of the Patent Office in Poland. The trademark is principally being used for furnishing and accessories and related services.
These facts are evidenced by the attachments to the Complaint and, in the absence of any submission of the Respondent to the contrary, the Panelist is satisfied that the documents submitted by the Complainant truthfully reflect the factual circumstances of the case.
The Complainant administers a sophisticated and informative website under the general domain name <ikea.com> (providing a link to the countries where the Complainant operates) and a website, specifically directed to US-customers under the domain name <ikea-usa.com>. On Complainant's websites the trademark "IKEA" is shown prominently.
On November 10, 2000, the Complainant, through its agents, issued a cease and desist letter to the Respondent and to Respondent's listed administrative/technical contact Victor Lashenko (and to Ron Benitzhak, the administrative contact of the domain name CASSAVA.NET, owned by Cassava Enterprises Ltd.; see below "Respondent"). No response was received from the Respondent.
On September 2, 2000, the Respondent registered, the domain name <ikeausa.com>. with BulkRegister.com, Inc. This domain name was, at least until November 6, instantly connecting its user to the Casino on Net virtual gambling site, operated by a company called Cassava Enterprises Limited. The Complainant has submitted, as exhibit K, attached to its complaint, a print-out of the on-line gambling website that the domain name <ikeausa.com> resolved to.
At least since November 15, 2000, the domain <ikeausa.com> resolves to an error page. Consequently, the domain name has been locked following Complainant's cease and desist letter.
Complainant submits that (1) the domain name <ikeausa.com> is identical or confusingly similar to a trademark or service mark, in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; (3) the domain name was registered and is being used in bad faith.
The Respondent has failed to submit any statement. He has therefore not contested the allegations of the Complaint.
3) the domain name has been registered and is being used in bad faith.
Complainant's trademark IKEA is, at least in the main commercial languages, an invented word with no meaning and therefore inherently distinctive. Complainant's trademark registrations of the word IKEA in Poland and in the USA evidence that he has exclusive rights in that word in these countries, as in many others. To the knowledge of the Complainant no other person has registered trademark rights in the word IKEA for whatever goods or services.
Furthermore, IKEA is a well-known trademark in many countries of the world, including the USA. Not only is the Panel personally convinced that IKEA is a well-known trademark, the Complainant has also submitted extensive evidence to prove the wide reputation of the mark. The Respondent has not contested this evidence. It has also been recognized in earlier panel decisions that the trademark IKEA is well-known (see Inter-IKEA-Systems B.V. v. McLaughlin Mobility, case No. D2000-0499; Inter-IKEA-Systems B.V. v Technology Education Centre, case No. D2000-0522; Inter-IKEA-Systems B.V. v Hoon Huh, case No. D2000-0438; Inter-IKEA-Systems B.V. v Evezon Co.Ltd, case No. D2000-0437). Furthermore, in a landmark decision dated June 20, 2000 (submitted by the Complainant as exhibit B to his Complaint), the Beijing Intermediate People's Court recognized for China that IKEA is a well-known mark and ordered the cancellation of the domain name <ikea.com.cn>, registered by a Chinese company.
The domain name "ikeausa" is not identical to trademarks of the Complainant, but integrates in its entirety the wordmark IKEA followed by the letters "usa", which are generally being understood as an abbreviation for the United States of America. In this domain name the generic tld indicator "com" is added, which cannot be taken into consideration when judging confusing similarity. The combination of a trademark with a geographical name is common practice for many domain names and does not exclude confusing similarity (see e.g. Wal-Mart Stores Inc v. Walmarket Canada, D2000-0150 relating to the domain name <walmartcanada.com>).
Obviously, the Complainant is not active in gambling activities. However, when judging confusing similarity, even under traditional trademark law standards, the difference between the activities of the Complainant and the use of the domain name <ikeausa.com> which the Respondent made, would not exclude confusion in view of the fact that the Complainant's mark is so well-known. Confusing similarity is even more evident, when considering the particular circumstances of use on the Internet. People in the USA, who are searching for the Complainant�s IKEA business related website, may expect to find it under its principal identifier "IKEA" combined with some geographical indicator, such as "usa". They may therefore type the sequence "ikeausa" and will be led to the Respondent. Furthermore, it must be taken into consideration that the Complainant is running a website in the USA under the domain name <ikea-usa.com>. A person intending to access the Complainant's website under that domain name, needs only to inadvertently omit the hyphen "-", in order to be misdirected to the gambling website of Cassava Enterprises (which normally may be accessed by using the domain name <entercasino.com>). At present, when attempting to find the Complainant in the USA and misspelling its domain name into <ikeausa.com> the actual or potential client will be informed that there is no website existing under that term. He may become discouraged and not search any further for Complainant's website.
In conclusion, the Panel is satisfied that the domain name <ikeausa.com> is confusingly similar to trademarks in which the Complainant has rights in many countries, including Poland and the USA.
In view of these findings, the Panel sees no need to decide whether the principles of the US Anti-Cybersquatting Consumer Protection Act and jurisdiction of US-courts under this act should be applied in this case.
As said before, the Respondent's domain name <ikeausa.com> is not a descriptive word, in which the Respondent might have an interest. The Complainant has not consented to the Respondent's use of the domain name. Simple stocking of the domain name by the Respondent, as this is the case at present, does not create any right or legitimate interest in the domain name.
Furthermore, none of the circumstances listed under 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are given. The Respondent has never used the domain name in connection with a bona fide offering of goods or services, and he has not demonstrated any preparations for such use. The prior use of the domain name as a link to a website for gambling activities cannot be considered to be a bona fide use, since the Respondent did not use himself his domain for a website relating to any - gambling - activities, rather used the domain name as a link to misdirect potential users of the IKEA website to the website of Cassava Enterprises. Such use cannot be considered to be a fair non-commercial use either. No doubt, the Respondent is not known at all under the name <ikeasusa.com>, since he never became active under that name.
Therefore, in the absence of any submission of the Respondent, the Panel concludes that the Respondent has no rights or legitimate interests vis-a-vis the Complainant in the domain name <ikeausa.com>.
For a Complainant to succeed, the Panel must be satisfied that a domain name has been registered and is being used in bad faith. Even if the Respondent has not responded to the Complaint, the Complainant has to prove under the Policy that the Respondent has registered and is using the domain name in bad faith.
The Respondent has not attempted to sell the domain name to the Complainant and, at present does not actively use it.
The Complainant, in his Complaint, has put forward a number of arguments speaking in favor of bad faith.
Given the fame of the IKEA mark and also the activities of the Complainant in Poland, including a furnishing outlet in Krakow, it is inconceivable that the Respondent was unaware of the Complainant before registering <ikeausa.com>. Furthermore, it can be considered to be common knowledge of Internet users that the abbreviation "USA" stands for "The United States of America". It can therefore reasonably be excluded beyond any doubt that the Respondent created a fantasy name, which happened to consist of the word "ikea" and the letters "usa".
The Respondent did and does not exercise any activity of his own under the domain name <ikeausa.com>. Instead he was employing that domain name to intentionally divert and attract consumers seeking Complainant's US-website to a virtual casino gambling site. In the absence of any submission of the Respondent to the contrary this must be considered to be for commercial gain. Thus the Respondent was pursuing an activity which falls under item 4b) iv) of the Policy, i.e. he attracted internet users to an on-line location, by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation, or endorsement of that website or location. This leads the Panel to the conclusion that the Respondent registered and was using the domain name <ikeausa.com> in bad faith.
Since, following the Complainant's intervention the Respondent ceased using the domain name, it must furthermore be proven that Respondent continues using the domain name in bad faith.
In that context, it has been convincingly argued in Telstra Corporation Limited v. Nuclear Marshmallows (case No. D2000-0003), that inaction of the Respondent is within the concept of 4a(iii) of the Policy. In this context it is important that the Respondent failed to respond to the cease and desist letter of the Complainant, informing him of the rights of the Complainant in his mark IKEA and stating that Respondent�s use and registration of the <ikeausa.com> domain name violated his rights in that mark. Furthermore the Respondent failed to respond to the Complaint in this proceeding.
However, the Respondent has shown in the past a clear intention to make a bad faith use of this domain name. Therefore the Respondent has not contented himself in simply registering (stocking) the domain name <ikeausa.com>.
The Panel agrees with the Complainant's argument, that there is no reason to believe that the Respondent intends to permanently cease using the domain name <ikeausa.com>. It is indeed likely that the Respondent's server is only temporarily down or the link temporarily cut, pending the outcome of the present dispute.
Furthermore, even if in the future the Respondent were passively holding the domain name <ikeausa.com>, this behavior would, under the circumstances of the case, amount to bad faith use.
The Respondent has incorporated in its entirety the Complainant's well-known mark in his domain name, just adding the letter sequence "usa". Additionally, this domain name is very similar to the domain name <ikea-usa.com> which the Complainant has registered before the Respondent and is using as a website addressed to the US-market.
Consequently, the Respondent is aware that inattentive use of his domain name by customers of the Complainant in the USA may cause detraction from the Complainant.
The Respondent failed to submit any argument or evidence in favor of good faith registration or good faith plans to use the domain name <ikeausa.com>. It is difficult to imagine any plausible future active use of the domain name by the Respondent that would not be illegitimate, such as being infringement of Complainant's well-known mark or an infringement of unfair competition and consumer protection legislation.
Finally, in breach of sections 4.1 and 4.2 of its Registration Agreement with Bulkregister.com, the Respondent did not provide its full name, e-mail address or telephone number, nor did it promptly update the information provided for its administrative/technical contacts. Actually, it was not possible for DHL to deliver the Complaint since the administrative/technical contact was unknown under the address and telephone number indicated (exhibit M to the Complaint).
Taking into account these particular circumstances the Panel concludes that the Respondent's former use of the domain name followed by the present passive holding of the domain name satisfies the requirements of paragraph 4(a)(iii) of the Policy that the domain name has been registered an is being used in bad faith.
Comparable cases, where in absence of any response of the Respondent the Panel, based on the circumstances of the case, has concluded that the (not identical but) confusingly similar domain name was registered and used in bad faith are e.g. "Deutsche Bank AG v. E-business International (case No. D2000-0504), "Wright & Lato, Inc. v. Michael L. Epstein (case No. D2000-0621), Metabolife International v. Robert Williams (case No. D2000-0630), Letsbuyit.com v. Stephen Ward (case No. D2000-0680) and Pharmacia & Upjohn AB v. Dario H. Romero (case No. D2000-1273).
The Panel decides that the Complainant has proven each of the three elements of paragraph 4(a) of the Policy.
The Panel requires that the registration of the domain name <ikeausa.com> be transferred to the Complainant.

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The Postum Cereal Company and its predecessors in title have for years manufactured a cereal breakfast food to which they applied, as a trade-mark, the word 'Grape- [272 U.S. 693, 696] Nuts,' for which they secured registrations under the Trade-Mark Registration Act of February 20, 1905 (33 Stat. 727, 9 (Comp. St. 9494 )), and amendments. They filed a petition of opposition to the registration by the California Fig Nut Company of the trademark 'Fig Nuts' which that company had registered under the Act of March 19, 1920, 1, par. b, 41 Stat. 533 (Comp. St. 9516a).
Section 2 of the same act (Comp. St. 9516b) provides that when any person shall deem himself injured by the registration of a trade-mark under the act, he may apply to the Commissioner of Patents to cancel it. Upon due notice to the registrant, a hearing is to be had before an examiner of interferences in the Patent Office, with an appeal to the Commissioner. The California Fig Nut Company, the registrant, filed an answer denying that the petitioner was injured and taking issue within the averments of its petition. The examiner of interferences held against the petitioner and recommended that the registration be not canceled. An appeal was taken to the Commissioner of Patents, who affirmed the holding of the examiner of interferences.
An appeal was then taken from the decision of the Commissioner to the Court of Appeals of the District of Columbia. That court held that, under the Act of March 19, 1920, 41 Stat. 533, there was no jurisdiction given to that court to hear an appeal from the Commissioner of Patents. This holding was in accordance with a previous decision of the same court in United States Compression Inner Tube Company v. Climax Rubber Company, 53 App. D. C. 370, 290 F. 345. Accordingly the appeal was dismissed. The present appeal to this court was allowed by the Court of Appeals.
The first section provides that the Commissioner of Patents shall keep a register of all trade-marks communicated to him by the international bureaus as provided for by the convention upon which a certain fee has been paid. Paragraph (b) of section 1 provides that all other trade-marks not registerable under the Act of February 20, 1905 ( with certain exceptions not here relevant), but which have been in bona fide use for not less than one year in interstate or foreign commerce, upon or in connection with any goods of a proprietor upon which a fee of $ 10 has been paid to the Commissioner of Patents, may be registered under the act, provided that the trade-marks which are identical with the known trade-marks owned and used in interstate commerce by another, and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or deceive purchasers, shall not be placed on the register.
Section 6 of the Act of 1920 (Comp. St. 9516f) adopts provisions of certain sections of the Act of February 20, 1905, 33 Stat. 728. But those sections do not include section 9 of the older act by which provision is made for an appeal from the decision of the Commissioner of Patents to the District Court of Appeals, and for this reason the District Court of Appeals dismissed the appeal. The contention of the appellant here is that section 9 of the act of 1905 does apply to the proceeding here taken under the act of 1920, and that the Court of Appeals in holding otherwise denied a right which the appellant here is entitled to have vindicated. It asks this court to reverse the dismissal by the District Court of Appeals and in effect enforce the jurisdiction of [272 U.S. 693, 698] that court to entertain its appeal from the Commissioner of Patents.
The first difficulty the appellant has to meet is the question whether this court has jurisdiction to consider such an appeal. The argument the appellant makes is that this appeal was allowed July 1, 1924, to the judgment of dismissal by the Court of Appeals of April 7, 1924, that the Act of February 13, 1925 (43 Stat. 936, 941), amending section 250 of the Judicial Code, left the old section applicable to such pending appeal, that by the old section 250, any final judgment or decree of the Court of Appeals might be re-examined in this court upon error or appeal in cases in which the construction of any law of the United States is drawn in question by the defendant, that this appeal draws in question the construction of the Trade-Mark Act of 1920 given by the Court of Appeals, by which that court dismissed the appeal taken to it from the Commissioner of Patents, and that the dismissal from which this appeal was allowed was a final judgment under the cases of Shaffer v. Carter, 252 U.S. 37, 44 , 40 S. Ct. 221, and Baldwin Co. v. Robertson, 265 U.S. 168 , 44 S. Ct. 508. The case of Baldwin v. Howard, 256 U.S. 35 , 41 S. Ct. 405, in which certiorari to this court from a similar trade-mark proceeding was denied is explained by the appellant as resting on the sole ground that the judgment below was not a final one.
We do not think this course of argument can be sustained. Assuming for the purposes of this discussion, that the District Court of Appeals was wrong in not holding that section 9 of the act of 1905 did apply to the Commissioner of Patents' decision under the Act of 1920, even so, an appeal cannot be taken to this court to remedy the error. The decision of the Court of Appeals under section 9 of the act of 1905 is not a judicial judgment. It is a mere administrative decision. It is merely an instruction to the Commissioner of Patents by a court [272 U.S. 693, 699] which is made part of the machinery of the Patent Office for administrative purposes. In the exercise of such function it does not enter a judgment binding parties in a case as the term case is used in the third article of the Constitution. Section 9 of the Trade-Mark Act of 1905, applies to the appeal taken under it the same rules which under section 4914, R. S. (Comp. St. 9459), apply to an appeal taken from the decision of the Commissioner of Patents in patent proceedings. Butterworth v. Hoe, 112 U.S. 50, 60 , 5 S. Ct. 25; Gaines v. Knecht, 27 App. D. C. 530, 532; Atkins v. Moore, 212 U.S. 285, 291 , 29 S. Ct. 390. Neither the opinion nor decision of the Court of Appeals under section 4914 R. S., or section 9 of the act of 1905, precludes any person interested from having the right to contest the validity of such patent or trade-mark in any court where it may be called in question. This result prevents an appeal to this court which can only review judicial judgments. This court has so decided in Frasch v. Moore, 211 U.S. 1 , 29 S. Ct. 6, in an appeal as to patent proceedings, and in Atkins v. Moore, 212 U.S. 285 , 29 S. Ct. 390, as to appeals in trade-mark proceedings. This was the ratio decidendi of Baldwin v. Howard, 256 U.S. 35 , 41 S. Ct. 405, already referred to, where both appeal and certiorari were denied in a similar trade-mark proceeding.
It was said in these cases that the appeal was denied because the action of the Court of Appeals was not a final judgment. This reason was a true one, but it should not be understood to imply that in such a proceeding, circumstances might give it a form that would make it a final judgment subject to review by this court. That is the error that the appellant here has made in pressing its appeal. Appellant relies on Shaffer v. Carter, 252 U.S. 37, 44 , 40 S. Ct. 221, holding that a judgment of dismissal for lack of jurisdiction is a final judgment for purposes of appeal. But the citation has no application in such a case as this. For here the action of the Court of Appeals in its dismissal was dealing with something which even [272 U.S. 693, 700] if it should have been received, was not in the proper sense a judgment at all. Whatever the form of the action taken in respect of such an appeal, it is not cognizable in this court upon review, because the proceeding is a mere administrative one.
See, also, Liberty Warehouse Co. v. Grannis, 273 U.S. 70 , 47 S. Ct. 282, 71 L. Ed. -, decided this day.
With this limitation upon our powers, it is not difficult to reach a conclusion in the present case. We should have had no power to review the action of the District Court if it had heard the appeal and taken administrative jurisdiction, and by the same token have now no power to review its action in refusing such jurisdiction.

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FRANCIS P. SALEMME vs. COMMONWEALTH.
Present: HENNESSEY, C.J., REARDON, BRAUCHER, & WILKINS, JJ.
PETITION for a writ of error filed in the Supreme Judicial Court for the county of Suffolk on July 3, 1975.
HENNESSEY, C.J. This is an appeal from a judgment entered by a single justice of the Supreme Judicial Court dismissing a petition for a writ of error seeking reversal of judgments of the Superior Court after trial of two indictments charging Salemme with assault, being armed with a dangerous weapon, with intent to murder (G. L. c. 265, Section 18), and assault and battery by means of a dangerous weapon (G. L. c. 265, Section 15A). Verdicts of guilty as to both indictments had been returned by a jury, and Salemme was sentenced to a term of imprisonment of nineteen to twenty years on the charge of armed assault with intent to murder and to a consecutive term of imprisonment for nine to ten years on the charge of the assault and battery with a dangerous weapon.
Before the single justice of this court the writ issued as prayed for in the petition. After the issuance of the writ the single justice, after hearing, dismissed the petition on the Commonwealth's motion. Salemme appealed. In our view the only issues properly before us are those which assert constitutional errors by alleging double jeopardy in trying Salemme on the two indictments arising out of a single act, and in imposing consecutive sentences after verdicts of guilty on these indictments.
Other errors now argued by Salemme are not properly before us. He asserts that certain testimony was erroneously admitted at the trial of the indictments. This contention, which raises no constitutional issue, was raised on appeal and was rejected by the Appeals Court (Commonwealth v. Salemme, 3 Mass. App. Ct. 102, 106-107 (1975), and this court subsequently denied Salemme's application for further appellate review. Salemme cannot seek another review of the issue by means of a writ of error.
See McGarty v. Commonwealth, 326 Mass. 413, 415-416 (1950). Similarly, Salemme's argument that there was error in the denial to him of access to a witness was a question which Salemme raised in the trial court and had legally sufficient opportunity to litigate on appeal. The writ of error will not lie to review this question. Sandrelli v. Commonwealth, 342 Mass. 129, 132, 141 (1961). Further, the record does not even adequately set forth a factual basis for this claim.
We turn now to the single issue before us: that of double jeopardy. More specifically, Salemme argues, correctly, that the Fifth Amendment to the Constitution of the United States protects against multiple punishments for the same offense. Gallinaro v. Commonwealth, 362 Mass. 728, 735 (1973). United States v. Wilson, 420 U.S. 332, 344 (1975). North Carolina v. Pearce, 395 U.S. 711, 717 (1969). He further states that the imposition of consecutive sentences as to the two offenses charged here was such a double punishment.
It is clear that both offenses arose out of a single transaction. [Note 1] That alone is not determinative, however, for a single act may be an offense against two statutes. If each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt Salemme from prosecution and punishment under the other. Kuklis v. Commonwealth, 361 Mass. 302, 306 (1972). Morey v. Commonwealth, 108 Mass. 433, 434 (1871). There is identity between two charges, which will preclude conviction and punishment for both, only if they both may be proved by the same facts. See Kuklis v. Commonwealth, supra at 306-307. Stated another way, if one offense charged is a lesser included offense within the other offense charged, punishment for both is precluded.
Applying this reasoning, it is clear that consecutive punishments could properly be imposed as to the two indictments in this case. Each offense requires proof of a fact not essential to the proof of the other offense. To support a conviction for assault with intent to murder while being armed with a dangerous weapon, it was necessary to prove beyond a reasonable doubt that Salemme committed an assault and was armed with a dangerous weapon; the weapon need not have been used and a battery need not have been committed. Commonwealth v. Williams, 312 Mass. 553, 556 (1942). Commonwealth v. Cody, 165 Mass. 133, 137 (1896). An assault occurs if there is simply an attempt or threat to do harm. Commonwealth v. Slaney, 345 Mass. 135, 138 (1962). [Note 2] It was also necessary to prove that Salemme had a specific intent, namely, to murder the victim in assaulting him. Commonwealth v. Williams, supra at 557.
On the other hand, proof of the indictment charging assault and battery by means of a dangerous weapon required a showing that a battery had been committed, in other words, that intentional force was applied against the victim, and that it was applied by means of the dangerous weapon. See Commonwealth v. McCan, 277 Mass. 199, 203 (1931).
Thus each indictment required proof of at least one fact not required for proof of the other indictment. Proof of battery was required in one; proof of intent to murder was required in the other. Consecutive sentences were properly imposed. We add, although the comment is not relevant to any issue raised in the case, that the heinous nature of Salemme's conduct was certainly such as to warrant, in justice, multiple indictments and consecutive sentences.
[Note 1] The record before us contains little by way of factual background, but we ascertain, by reference to the opinion in the prior appeal (Commonwealth v. Salemme, 3 Mass. App. Ct. 102, 106-107 ), that both convictions were based on proof that the defendant placed an explosive charge in the victim's automobile, that an explosion occurred, and that the victim suffered serious injury.
[Note 2] Although the issue is not raised here, it is also observed in the Slaney case, at 138-139, that the victim need not have been put in fear by the assault or need not have been even aware of it. This rule is peculiarly apposite in this case.

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