MINUTES OF THE
ASSEMBLY COMMITTEE ON TRANSPORTATION
Sixty-seventh Session
March 1, 1993
The Assembly Committee on Transportation was called to order by Chairman Larry L. Spitler, at 1:15 p.m., on March 1, , 1993, in Room 331 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Larry L. Spitler, Chairman
Mr. Val Z. Garner, Vice Chairman
Mr. Bernie Anderson
Mrs. Vonne Chowning
Mr. Tom Collins, Jr
Mr. Louis A. Toomin
Mr. William D. Gregory
Mr. Lynn Hettrick
Mr. James W. McGaughey
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Kerry Carroll-Davis, Senior Research Analyst, Legislative Counsel Bureau
OTHERS PRESENT:
Helen Leveille, Nevada Public Land Access Coalition
Lissa Downer
Bill Gibson
Mike Chapman, Deputy Attorney General, Nevada Department of Transportation
Don Quilici, Executive Vice President, Nevada Farm Bureau
Al Raiche, Nevada Public Lands Association
Merlin McColm, Elko County Conservation Association
William Molini, Director, Nevada Department of Wildlife
Russ Fields, Executive Director, Nevada Department of Minerals
Bill Van Bruggen, Carson Ranger District, Toiyabe National Forest
Brian Yohey
Julian C. Smith, Esq.
Lawrence "Frenchy" Montero
R. W. Marshall
T.J. Day
C. Joseph Guild, Attorney at Law
See Attached Guest List (Exhibit B)
ASSEMBLY BILL NO. 176: Requires governing body of political subdivision and attorney general, under certain circumstances, to bring action to allow access to public road.
Chairman Spitler stated A.B. 176 would be referred to a subcommittee after testimony held today. Appointed to chair the subcommittee was Mrs. Chowning. Members appointed were Mr. Hettrick and Mr. Collins.
Assemblyman Bernie Anderson, District 31, sponsor of A.B.176, explained a constituent, Mrs. Helen Leveille brought forth concerns regarding access to public roads. As a history teacher, Mr. Anderson related to problems experienced in trying to access distant and desolate areas such as driving a great distance on an isolated but public road only to confront a locked gate. Mr. Anderson stated the purpose of A.B. 176 was simply to change the wording "may" to "shall" and he explained his proposed amendment (Exhibit C). The amendment created a status difference between residents of one county or another in terms of how the value of their word was taken, and helped resolve voter verification problems for local voting offices. Mr. Anderson, from prepared testimony (Exhibit D) addressed the bill summary, merits of the bill, and probable problems which could require action from the attorney general. Mr. Anderson commended Mrs. Leveille's work on her commitment to the public access issue, and for the tedious work she accomplished in preparing the information packet (Exhibit F) distributed to committee members.
Mr. Ken Stowers, Bureau of Land Management, testified in support of A.B. 176 and explained the history of statute R.S. 2477, Section 8 of the Act of July 26, 1866, 14 Stat. 251 (Exhibit E). He explained the intent of Congress in passing that law was to authorize roads that already existed, but it did not approve new roads. He explained the criteria that had to be met for a road to have acquired status as a "public highway" under R.S. 2477. R.S. 2477 was repealed in 1976. Mr. Stowers felt it was important to examine each road's history individually.
In answering a question from Mr. Hettrick, Mr. Stowers explained if a right-of-way was created prior to being transferred into reserved status such as a national forest or private ownership, that right still existed. With no further questions from the committee, Chairman Spitler requested Mr. Stowers distribute copies of his testimony to the committee members and stated Mr. Stowers would be contacted to work with the A. B. 176 subcommittee.
Mrs. Helen Leveille, Nevada Public Land Access Coalition, testified in support of A.B. 176. She stated she had presented an informational packet (Exhibit F) which contained documentation from various state agencies. She then discussed the history of several specific roads in areas considered public lands and problems that arose trying to access those lands. Mrs. Leveille relayed several experiences people encountered in seeking governmental intervention to gain access to public lands and the results received. Using maps as a visual aid (Exhibit G), Mrs. Leveille explained roads in several counties where people approached the county commissions to discuss the accessing problems. She also presented various deterrents such as steel spikes, broken steel ream bars, etc. placed on public roads by private landowners to discourage access to the public roads. She stated her coalition simply sought access to public roads that passed through private lands and enforcement of the laws. Mrs. Leveille expressed her concerns with private landowners taking laws into their own hands and cited several examples.
Mr. Collins asked if criminal proceedings were placed on private landowners who, in violent terms, denied access to public roads or against the public for trespassing on private lands. Mrs. Leveille stated there were currently cases in court and there were several complaints filed. In her contest over a Humboldt County road, she expressed distress that she, the public, had to bring suit against a private landowner to gain access to a county road. She felt the suit should have been brought by the county as the public paid money to maintain roads. She felt the attitude of private landowners was that of immunity to the law.
Mr. Garner requested statistical information regarding the Department of Wildlife's practice of seasonal road closures for wildlife protection and questioned how the coordination of such closures would be met.
Lissa Downer, Nevada All State Trail Riders Association, read from prepared testimony (Exhibit H) in support of A.B. 176.
Bill Gibson, a licensed guide for Elko County, testified in support of the bill. He stated they operated under special use permits from BLM, U.S. Forest Service - Ruby Mountain District, also from the Unites States Fish and Wildlife Service on Ruby Lake. Mr. Gibson expressed his concerns with County Road Number 714 in Elko County. He stated expenditures for maintenance of the road were paid by Elko County. The road serviced mining claim interest, recreation enthusiast, ranches and an Indian reservation. Mr. Gibson stated two years ago the reservation claimed no prescriptive easement existed on the road. Mr. Gibson stated this meant the public who sought access across the reservation had to have the access deeded or be given permission to cross. Mr. Gibson stated this conflicted with the county funds expended on that same road. He cited instances of confrontations with tribal members on County Road 714 and voiced concern for safety of people trying to access the road. To help remedy the situation, Mr. Gibson stated they approached the county commission and tribal court; however, were unsatisfied with the results. A temporary restraining order was placed on tribal members, however, the order was lifted without Mr. Gibbons' knowledge or notification from the court. He voiced concern for the condition of the road as vandalism was taking place.
Mike Chapman, Deputy Attorney General, Department of Transportation, stated his department reviewed the bill draft and felt a clarifying amendment (Exhibit I) was needed so the language of the act was not construed to interfere with his Department's statutory duty.
Don Quilici, President, Ormsby Sportsman Association read from prepared testimony (Exhibit J) in support of A.B. 176.
Doug Busselman, Executive Vice-President, Nevada Farm Bureau stated they had not taken a position on the bill, however, they felt action was needed and proposed several amendments in his prepared testimony (Exhibit K).
Al Raiche, Nevada Public Lands Association, testified in support of A.B. 176. His perspective for support dealt with action by a previous legislature. Mr. Raiche stated money was allocated for purchasing access through private to public lands. He felt an amendment could be made to establish widths of rights-of-way of the counties in 1936 by the federal government. He stated the purpose of the request in 1936 was to designate county roads. Federal funds were also administered for management of roads. Mr. Raiche expressed concern public access should have already been established.
Merlin McColm, Elko County Conservation Association, read from prepared testimony (Exhibit L) supporting A.B. 176. He stated his association was also a member of the Nevada Coalition for Wildlife.
William Molini, Director, Nevada Department of Wildlife, introduced Mr. Jim Jeffress, fuel biologist responsible for wildlife management in Humboldt County. Mr. Molini emphasized the NDOW strongly supported the concept of A.B. 176 and contributed documents which showed the need. Mr. Molini saluted the tenacity and energy exerted by Mrs. Leveille, a private citizen. Mr. Molini agreed with Mr. Garner's concerns about the language of the bill as written. He explained thirteen state-owned wildlife areas were managed by NDOW for waterfowl or shorebird protection as well as public recreational uses. Mr. Molini explained seasonal closures of roads were necessary. His concern with the bill dealt with the signature petition requirement which he felt that could cause county commissions to sue NDOW to forcefully open a road. Mr. Molini also explained the BLM and Forest Service temporarily closed roads for resource protection. Mr. Molini expressed his pleasure with having the bill referred to the subcommittee. He then discussed his proposed amendment (Exhibit M).
Mr. Collins clarified with Mr. Molini the reasons and areas the Department of Wildlife seasonally closed roads. Mr. Molini stated the bill would not affect those actions.
Mr. Anderson addressed Mr. Molini's proposed amendment regarding petition signatures needed to bring action for public road access. Mr. Anderson stated after introducing the bill, concerns were voiced by several county registrars of voters regarding verification of voters. He had already proposed an amendment addressing the petition signature requirement.
Mr. McGaughey remarked that Mr. Molini's proposed amendments were similar to the bill as already written. Mr. Molini explained the difference was the addition of the petition which acted as a triggering process for action. He explained once the county commission received the petition, the proposed language mandated a public hearing be held. Action to open and maintain the road would be mandated only if the public hearing proved merit. Mr. McGaughey stated according to testimony heard, county commissions were already contacted with grievances but did not take action. Mr. McGaughey felt frustration with the county commissions and lack of action from county commissions brought forth the bill. Mr. McGaughey expressed concern the Department of Wildlife's proposed amendment conveniently allowed counties to sidestep their jurisdiction. Mr. McGaughey stated the intent of the bill directed action be taken. Mr. McGaughey requested an amendment be prepared that somehow would provide the framework to state specifically why road closures were needed. Mr. Molini agreed and offered to work on such an amendment.
Mr. Collins expressed concern that the state's right for seasonal closure of roads risked misinterpretation. He cited examples of sheepherders closing roads for lambing or cattle ranchers closing roads for calving. He stated to avoid confusion, environmental laws already written seemed adequate to allow such closures. Mr. Molini replied the area was vague and he would work on language.
Russ Fields, Executive Director, Nevada Department of Minerals, was pleased A.B. 176 was referred to a subcommittee. Wishing to address Section 2 of A.B. 176, Mr. Fields stated closure of roads by governmental agencies concerned him. He urged pursuance of hearings before county commissions. He supported the concept that if a county commission hearing proved need for public access, action requested by the counties would be mandated by the attorney general. He felt this would put power and responsibility back to counties and also implement a public filtering process before the action went to the attorney general.
Mr. Collins felt if the attorney general had taken action against counties who did not respond to citizen requests in previous instances, there would be no need for this bill.
Answering a question from Mr. Toomin, Mr. Fields stated as grievances against the federal government occurred with road closures, a mechanism should be in place to determine grounds for bringing a suit and then seeking action from the attorney general to carry out the suit.
Bill Van Bruggen, Lands Officer, Carson Ranger District, Toiyabe National Forest testified in support of A.B. 176. He expressed views of the Toiyabe National Forest by reading documentation (Exhibits N and O) that had been sent to Mrs. Leveille.
Richard Lassen, Reno, Nevada, felt clarification was needed on the definition of public roads and explained his proposed amendment (Exhibit P).
Brian Yohey, Landowner, Warm Springs Valley, testified in opposition to the bill. Counterpointing Mrs. Leveille's testimony, he addressed actions taken by the county commissioner's regarding the Winnemucca Ranch road. He stated the Bureau of Land Management has said land use as written today is outdated and could not be controlled.
Julian C. Smith, Jr., Attorney at Law, testified in opposition to A.B. 176. Mr. Smith stated his perspective viewed the bill as simply changing language from "may" to "shall." As he listened to early testimonies from proponents of the bill, he felt their suggestions didn't seem to demand much change, thereby suggesting the law was fine as written. Mr. Smith felt procedures were already in place for lawsuits to be brought forth. He felt in all fairness, costs for lawsuits should also be absorbed by the public seeking access to the roads. He felt an injustice was done when the public's required lawsuits were financed by the state but private landowners had to pay their own expenses. Mr. Smith did express his concern A.B. 176 could be a constitutional violation.
Chairman Spitler requested Mr. Smith's participation in the subcommittee.
Answering a question from Mr. Anderson, Mr. Smith felt R.S.2477 roads were extremely complicated. He agreed the public was not adequately knowledgeable of which roads were categorized as R.S.2477 roads. Mr. Smith cited a court case he handled regarding a Humboldt County Road. He stated Humboldt County did bring suit against the BLM regarding a road, however, the case was lost, appealed, and lost again. He felt this was why counties hesitated in bringing forth suits.
Mr. Smith read excerpts from a letter written by legal representation of the Nevada Public Land Access Coalition. The letter stated A.B.176 would usurp any discretionary power boards of county commissioners possessed regarding opening of roads. Mr. Smith cited an example of a problem he felt the proposed bill would cause if the public access trail happened to be in a developed city.
Mr. Lawrence "Frenchy" Montero, Land Creek Ranch, spoke in opposition to the bill. He stated his ranch was the source of the alleged problem the proposed bill would resolve, however, he felt the issue of the bill was solely based on a personal grudge. Mr. Montero reviewed the history of his ranch and problems he encountered with the public using his ranch and roads. He also reviewed the hearings conducted with the counties. Mr. Montero stated the federal government agreed he did not have to open his road as there were established access roads already in his area. He also agreed if lawsuits were mandated, the state should pay both parties' expense. Mr. Montero understood the importance of sportsmen's contribution to the state budget and welcomed sportsmen on his land.
Mr. Hettrick requested from Mr. Montero copies of rights-of-way established in the county hearings held. Mr. Montero explained he requested cattle guards, however, the county stated they needed a right-of-way from him. He asked the county commissioners to fix his road however the county informed him road maintenance was his responsibility. He felt those replies were recorded in county commission minutes. Mr. Hettrick felt Mr. Montero should have this information documented for his own protection.
Mr. Montero, answering a question from Mr. Collins clarified neither the BLM or county claimed responsibility for roads on his ranch. Additionally, they agreed there was reasonable access to public roads without crossing Mr. Montero's ranch.
R.W. Marshall, Attorney at Law, Vargas & Bartlett, testified in opposition to the bill. As a cattle ranch owner in Reno, he was very concerned with the proposed bill's language. His concerns were based on the costs of lawsuits required by a five-signature petition as written in A.B. 176. He urged an amendment be made changing the five signature requirement. Mr. Marshall felt requiring elected local governments to take action went against good faith. He stated trusts had to be placed in local governments to make the right decisions. To make a mandatory law requiring local governments to file lawsuits would take away discretion. Another factor Mr. Marshall mentioned was A.B. 176 placed a financial burden on many agencies.
C. Joseph Guild, Attorney at Law, stated he represented the Nevada Cattlemen's Association and the Sante Fe Pacific Corporation. Mr. Guild mentioned the Sante Fe Pacific Corporation was the largest single private landowner in Nevada. He testified his organizations were opposed to the bill and he expressed his desire to work with the subcommittee.
Rob Joyner, Carson City, testified in opposition to A.B. 176.
With no further testimony on A.B. 176, Chairman Spitler again mentioned the A.B. 176 subcommittee composition.
Chairman Spitler respected the fact committee members had to, at times, testify in other committees, however, he reminded committee members he expected them to be in attendance throughout the conducted hearings.
With no further business, Chairman Spitler adjourned the meeting at 3:16 p.m.
RESPECTFULLY SUBMITTED:
Carolyn J. Harry
Committee Secretary
??
Assembly Committee on Transportation
March 1, 1993
Page 1