MINUTES OF THE
SENATE COMMITTEE ON NATURAL RESOURCES
Sixty-seventh Session
March 5, 1993
The Senate Committee on Natural Resources was called to order by Chairman R. Hal Smith, at 8:35 a.m., on Friday, March 5, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator R. Hal Smith, Chairman
Senator Dean A. Rhoads, Vice Chairman
Senator Ernest E. Adler
Senator Thomas J. Hickey
Senator Mark A. James
Senator Joseph M. Neal, Jr.
COMMITTEE MEMBERS ABSENT:
Senator Dina Titus
GUEST LEGISLATORS PRESENT:
Assemblyman Joseph E. Dini Jr.
STAFF MEMBERS PRESENT:
Caren Jenkins, Senior Research Analyst
Rayanne Francis, Senate Committee Secretary
OTHERS PRESENT:
Gordon Depaoli, General Counsel, Walker River Irrigation
District
Jim Weishaupt, Manager, Walker River Irrigation District
Alan H. Glover, Lobbyist, Nevada Power Company
Doug D. Busselman, Lobbyist, Nevada Farm Bureau
Gary L. McCuin, Secretary, Central Committee of Nevada State
Grazing Boards (Reno)
Joe L. Johnson, Lobbyist, Sierra Club/Toiyabe Chapter
Chairman Smith opened the hearing on Assembly Joint Resolution (A.J.R.) 10.
ASSEMBLY JOINT RESOLUTION 10: Memorializes California to recognize Nevada irrigation districts as public entities.
Assemblyman Joseph E. Dini Jr. briefly explained the purpose of A.J.R. 10, and concluded by saying the following presenters would provide more detail on the subject.
Gordon Depaoli, General Counsel, Walker River Irrigation District, introduced himself to members of the committee. Mr. Depaoli's testimony is contained in Exhibit C.
Senator James asked if a similar situation had ever occurred in another state. Mr. Depaoli replied he was not aware of any other states which had enacted a law recognizing out-of-state irrigation districts.
Jim Weishaupt, Manager, Walker River Irrigation District, introduced himself to members of the committee and said he was aware of reciprocal language, in irrigation district statutes and water laws, for the creation of storm drain facilities. Mr. Weishaupt's further testimony is contained in Exhibit D.
Senator Neal said he noted a comment had been made with reference to the Walker River Irrigation District's inability to perform its public duty, due to the financial burden of litiga-tion costs. He asked how much money had been spent in court to date, and wondered how passage of A.J.R. 10 could eliminate further litigation. Mr. Depaoli responded by saying passage of A.J.R. 10 in Nevada, and the enactment of corresponding legislation in the State of California, would clarify which laws (in California) the district must be in compliance. He concluded by saying this resolution would also provide the district with concise direction on how to protect itself from potential tort liability resulting from recreational accidents in the State of California.
Mr. Depaoli described a situation which resulted in great expenditure on the part of the Walker River Irrigation District. He explained, in 1988, the Bridgeport Reservoir had been dewatered to allow inspection of the dam's outlet tube. Subse-quently, the district was sued by the State of California based upon its claim that the district had not complied with certain provisions of the California Fish and Game Code (which applied to private persons--not public entities). Mr. Depaoli commented the district was charged and convicted of this crime in the State of California. He said a fairly accurate estimate of the district's total cost of litigation would be in excess of $700,000. Mr. Depaoli concluded his testimony by stating this situation would not have taken place if legislation recognizing the district as a public entity had been in place at the time the Bridgeport Reservoir had been dewatered.
Senator Neal inquired if the State of Nevada recognized the district as a public entity. Mr. Depaoli affirmed the district was viewed to be a public entity within Nevada. Senator Neal said he was at a loss to understand why the State of California would not view the district to be a public entity. Mr. Depaoli pointed out the language contained in California statutes (defining "public entity" and "person") were not precise in setting forth the acceptance of a public entity from another state and recognized to be a public entity in that state.
Senator Neal asked if the State of California would treat the State of Nevada as a private person or corporation. Mr. Depaoli replied by saying, in certain situations, the State of Nevada would probably be treated as a private corporation. Senator Adler noted the State of California does not recognize Nevada's sovereign immunity. He continued by saying if an employee of the State of Nevada was involved in an auto accident inside of the state, the insurance liability would be limited to $50,000. However, he said if this same state employee was involved in a similar accident in the State of California, the insurance liability would be unlimited.
Chairman Smith called for action on A.J.R. 10.
SENATOR HICKEY MOVED TO DO PASS A.J.R. 10.
SENATOR JAMES SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
Chairman Smith opened the hearing on Senate Joint Resolution (S.J.R.) 11.
SENATE JOINT RESOLUTION 11: Urges Congress and President to adopt legislation authorizing transfer of specified system for transmission of electricity to Colorado River Commission.
Alan H. Glover, Lobbyist, Nevada Power Company, introduced himself to members of the committee. He mentioned the Nevada Power Company (NPC) was one of five power utilities transporting electricity via the Colorado River Commission. Mr. Glover testified the NPC fully supported passage of S.J.R. 11.
Chairman Smith called for action on S.J.R. 11.
SENATOR HICKEY MOVED TO DO PASS S.J.R. 11.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
Chairman Smith opened the hearing on S.J.R. 13.
SENATE JOINT RESOLUTION 13: Urges Congress and Bureau of Land Management to expedite creation of certain programs for managing population of wild horses and burros on public lands.
Doug Busselman, Lobbyist, Nevada Farm Bureau, introduced himself to members of the committee. He mentioned the Nevada Farm Bureau (NFB), the Nevada Cattlemen's Association and a number of wild horse advocacy groups supported passage of S.J.R. 13. He explained all of these groups had worked with the Bureau of Land Management (BLM) in the development of a strategic wild horse management plan which was being launched as a pilot program in the State of Nevada.
Senator Neal asked how passage of S.J.R. 13 would enable the BLM to control the reproduction rate of wild horses and burros in northern Nevada. Mr. Busselman explained the pilot program currently being designed involved the injection of a birth control hormone into female wild horses and burros. He continued by saying injection of this hormone would be effective for a period of 1 year. Mr. Busselman said it was hoped that further research will increase the effectiveness of the hormone for a full 2 years.
In response to further questions by Senator Neal, Mr. Busselman stated the program's focus was based upon a 100 percent gathering of all wild horses and burros in a known grazing area. At that time, he explained the foals would be separated from the herd and put up for adoption. In an attempt to control the wild horse and burro population, he clarified a certain percentage of the mature females would be injected with the birth control hormone.
Gary L. McCuin, Secretary, Central Committee of Nevada State Grazing Boards (Reno), introduced himself to members of the committee. He testified the central committee supported passage of S.J.R. 13. However, he did recommend the resolution be amended with language including the United States Forest Service (USFS) due to the fact that the wild horse and burro population was also increasing on USFS land.
Joe L. Johnson, Lobbyist, Sierra Club/Toiyabe Chapter, intro-duced himself to members of the committee. He testified the Sierra Club supported passage of S.J.R. 13. He concluded by saying this resolution protected the interests of the industrial groups, as well as interests of wild horse advocates.
Senator Neal asked if the State of Nevada was presently engaged in a program to control wild horse and burro populations. Mr. Johnson replied by saying the purpose of S.J.R. 13 was to encourage the continuance of the existing program. Senator Rhoads explained the BLM's program was experimental and will expire within a certain period of time. He said it was hoped that passage of this resolution will result in additional funding for the program, so roundups and birth control treatments can take place on an annual basis. Senator Rhoads concluded his testimony by saying the previous method of population control (adoption program) had not been effective.
Chairman Smith asked Senator Rhoads if he would agree to Mr. McCuin's request to amend S.J.R. 13 to include the USFS. Senator Rhoads agreed the USFS should be amended into the first resolve on page 1, line 26.
Chairman Smith called for action on S.J.R. 13.
SENATOR RHOADS MOVED TO AMEND AND DO PASS S.J.R. 13 AS AMENDED.
SENATOR HICKEY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE. SENATOR NEAL ABSTAINED FROM THE VOTE.)
* * * * *
Chairman Smith opened the hearing on A.J.R. 5.
ASSEMBLY JOINT RESOLUTION 5: Urges Congress to expedite ratification of amendments to Tahoe Regional Planning Compact made by State of California and adopted by Nevada Legislature.
Chairman Smith stated the resolution was rather straight-forward and called for action on A.J.R. 5.
SENATOR HICKEY MOVED TO DO PASS A.J.R. 5.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
Chairman Smith opened the hearing on S.J.R. 14.
SENATE JOINT RESOLUTION 14: Urges Congress to limit acquisition of privately owned land by the Federal Government and to return public land to private ownership.
Senator Rhoads explained one-third of the United States (U.S.) is owned by the federal government. He remarked, for the last year, he has maintained an ongoing file of the various private land acquisitions in the U.S., by federal agencies. He explained the Interior Appropriations Committee (IAC) appropriated $350 million for the express purpose of buying private lands. Senator Rhoads emphasized the IAC normally purchases private land through third-party groups. He said it was rumored the IAC buys between 2,500 to 1,000 acres of private property each day. He said he knew of a 300,000 acre ranch, located in New Mexico, which the IAC had purchased in a single transaction.
Mr. Busselman explained the NFB supported passage of S.J.R. 14. He continued by saying the increased ownership of land and water rights within Nevada, by the federal government, diminished local and state control of its natural resources. He stated when federal agencies acquire private lands in a particular county in Nevada, the NFB felt comparable property (in the same county) should be released for private ownership. Mr. Busselman concluded his testimony by saying the NFB was especially interested in seeing the federal government get out of the business of acquiring land in the State of Nevada.
Senator Neal inquired if Mr. Busselman knew of any particular situations where the federal government had recently acquired private land in Nevada. Mr. Busselman admitted he knew of one situation in the Elko area involving the Ruby Valley marsh system. He continued by explaining private property in this area had been acquired by a federal agency for inclusion in a federal reserve. Mr. Busselman continued by saying another situation was developing in Fallon which involved the purchase of water rights by the federal government for the Stillwater Wetlands Project.
Senator Neal inquired if the land purchased by the federal government had taken place under the authority of the Eminent Domain Act. Mr. Busselman explained the Nature Conservancy organization had been involved in the purchase of private property for resale to the federal government.
Senator Neal asked if the essence of the resolution was to also prevent the purchase of private lands by a private entity for resale to the federal government. Mr. Busselman said he believed this statement was correct.
Senator Adler had mixed feelings concerning this issue. He continued by saying he was against a net loss of private land in the State of Nevada. He explained he was not concerned about the exchange of land, due to the fact a portion of the exchanged lands were for wildlife purposes. However, in these instances, he felt the federal government should be required to release comparable land for private purposes. Senator Adler emphasized the federal government should actually be required to release a larger portion of land for the private sector than what was being acquired. He explained an arrangement such as this would have the effect of increasing Nevada's tax base. He concluded by saying he would support such an amendment to the resolution reflecting this approach.
Mr. Busselman voiced his support of such an amendment. He clarified a major NFB policy opposed a net loss of private property in the State of Nevada. He continued by saying the Senate Committee on Natural Resources may also want to consider amending language into the resolution restricting the purchase of water rights by the federal government.
Chairman Smith closed the hearing on S.J.R. 13 and recommended it be held for additional review during an upcoming work session.
Chairman Smith opened the hearing on S.J.R. 15.
SENATE JOINT RESOLUTION 15: Urges Congress to require Secretary of the Interior to consider certain economic factors in determining whether to list species of wildlife as being endangered or threatened and in developing recovery plans for endangered or threatened species of wildlife.
Senator Rhoads explained this resolution had come about based upon the state's prior experiences with the inclusion of the Desert Tortoise, Lahontan Cutthroat Trout and Cui-ui on the endangered species list. He mentioned other states are also considering legislation similar to S.J.R. 15.
Senator Rhoads emphasized the importance of considering the economic impacts of adding another species to the endangered species list. He stressed developers in Clark County paid dearly for the listing of the Desert Tortoise.
Mr. Busselman voiced the NFB's support of S.J.R. 15. He mentioned the NFB was involved in a national effort to bring about "reasonable changes" to the Endangered Species Act while congress considered its re-authorization. He said Senator Reid was a member of the committee addressing the issue.
Mr. Johnson said the Sierra Club objected to the first resolve contained in S.J.R. 15 (beginning on page 1, line 25). When determining whether or not a species was threatened, he empha-sized the economic impact should not be taken into considera-tion. Mr. Johnson continued by saying the Sierra Club did not object to the second resolve contained in the resolution (page 2, line 6), and agreed the recovery plan should include an economic analysis of the listing's impact on local economies. He stressed that, until a recovery plan was prepared, it was unreasonable to expect a determination be made regarding the economic impact on local economies.
Mr. Johnson said the first resolve of the resolution sets forth the expectation that a recovery plan would need to precede the actual listing of a species on the endangered species list. Based upon this statement, he said the Sierra Club would like to request that the Senate Committee on Natural Resources delete the first resolve from S.J.R. 15.
Senator Neal assumed the Sierra Club's request to delete the first resolve was based upon the fact the economic impact would be the controlling factor on whether or not the species was added to the endangered species list. Mr. Johnson said the basis of the Sierra Club's request concerned the emphasis placed on the economic factor. For example, he pointed out that stressing the economic importance of a species would equate to "what is the worth of the last pair of bald eagles in existence?" He said it was inappropriate to place such a burden on whether or not a species was added to the list.
Senator Adler agreed with Mr. Johnson from the perspective that identification of a species based upon the economic impact would focus all of the federal resources on the rural areas of Nevada. He explained an endangered species in a rural area would receive more protection than the same species in an urban area, due to the higher economic impact in the urban area.
Senator Adler agreed that placing the primary emphasis on whether or not to list an endangered species based upon economic issues could cause more problems. Mr. Johnson said the economic effects of listing a species on the endangered list should not a factor. He stressed the actual risk to the species should be at the forefront.
Senator Hickey called attention to the fact that S.J.R. 15 was simply a resolution. He emphasized the listing of the Spotted Owl on the endangered species list had far-reaching financial impact on the logging communities in Washington and Oregon. He agreed the Spotted Owl was indeed an endangered species, but stressed the economic impact of listing this species had not been fully explored prior to its inclusion on the endangered species list.
Senator Hickey said the economic impact language contained in the first resolve of the resolution may be overstated, but emphasized some kind of economic consideration should be made. Mr. Johnson agreed and clarified economic issues would be addressed in the second resolve contained in S.J.R. 15.
Senator James remarked profound consequences stemmed from the actual listing of an endangered species. He specified current law prevents any individual from "taking" an endangered species once it had been listed. Senator James explained "taking" was defined as prohibiting an individual from even breathing on the listed species. He stressed that, until a habitat recovery plan was adopted and accepted pursuant to the law, no one could change or affect the species' habitat in any way. Senator James clarified the following activities would stop immediately: 1) construction; 2) economic development; 3) razing; etc. He agreed the present language of the first resolve could be fine-tuned. However, he emphasized that the Endangered Species Act, in its present form, was not pro-active or anticipatory enough to balance out the danger to the species with the economics of shutting down all activities adjacent to the species' habitat.
Mr. Johnson agreed the economic consideration of whether or not to list an endangered species had its place. However, he stressed the overall economy of Las Vegas had not been hurt by listing the Desert Tortoise on the endangered species list. He admitted the process may have been somewhat expensive and painful to a select number of individuals, however, the damage was not irreparable. Senator James disagreed with this statement, and said during his campaign for the district senatorial seat, he knocked on the doors of many people who had lost their jobs as a direct result of the Desert Tortoise.
Senator Rhoads agreed with Senator James and said the real economic damage was done when the endangered species was listed. He said the Lahontan Cutthroat Trout had been added to the list approximately 10 years ago. He stressed the Secretary of the Interior was still working on the recovery plan for the species. Senator Rhoads said he had been told this species of trout would not be taken off of the endangered species list until the year 2016. He concluded his statement by saying that the Endangered Species Act, in its present form, would have the effect of crippling many industries across the U.S.
Mr. Johnson stressed an accurate assessment of the economic impact of listing an endangered species cannot be made until a recovery plan was formulated.
Senator Adler admitted there was a serious problem with using economic factors to make the determination of whether or not a particular species was endangered. He explained this further by saying the species in the urban areas will not be listed as endangered, while the species in the rural areas will be endangered. Senator Adler concluded by saying the federal bureaucrats will focus on the rural areas in Nevada, because farming and ranching interests would not be considered to be as important as the subdivisions and golf courses in the urban areas.
Senator Hickey stressed both the Summa Corporation and Yucca Mountain were seriously affected by the listing of the Desert Tortoise. However, he pointed out these entities were wealthy enough to address the problem. Senator Hickey emphasized many of the ranchers and farmers in the rural areas of the state would not have the financial resources to address these issues. He concluded by stating S.J.R. 15 attempted to deal with both the environmental and financial effects of the Endangered Species Act.
Mr. Johnson agreed with Senator Adler's earlier statement that the lesser impacted entities would not have the resources or political clout to address the adverse effects of listing a species. He doubted the Sierra Club would object to rewording the interim management aspect of S.J.R. 15 to address this problem.
Senator James said he did not believe anyone had purposely designed the Endangered Species Act to have one standard for the rich and another for the poor. He emphasized he did not believe the Sierra Club's concern was based upon the resolution's ability to address the issue equitably. Senator James said he felt the Sierra Club's concern was centered on the scientific interpretation of the status of a threatened species--without consideration to the economic impact. Mr. Johnson agreed this assessment was correct, but only with respect to the listing of the species.
Senator James admitted he was not in total agreement with the present language of the first resolve. However, he stressed the listing of an endangered species had profound consequences on economies, without respect to whether this species resided on a ranch in northern Nevada or a residential development in southern Nevada. Senator James stated that S.J.R. 15 simply urged congress to rework the Endangered Species Act, because it was not an effective law in its present form. He hoped a way could be found to empower the U.S. Department of the Interior to alert local and state governments much earlier to sensitive species and/or areas. He explained this would allow local economies to anticipate possible solutions "before the wheels of an economy come to a screeching halt" while a habitat recovery plan was designed.
Mr. Johnson declared he did not intend to suggest that the language contained in the first resolve was discriminatory.
Chairman Smith closed the hearing on S.J.R. 15. He stated both S.J.R. 14 and S.J.R. 15 would be heard again during a work session on Wednesday, March 17, 1993.
Considerable discussion ensued regarding the placement of bills on the Consent Calendar. Chairman Smith called for a motion on A.J.R. 5, A.J.R. 10 and S.J.R. 11.
SENATOR HICKEY MOVED TO PLACE A.J.R. 5, A.J.R. 10 AND S.J.R. 11 ON THE CONSENT CALENDAR.
SENATOR RHOADS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.)
* * * * *
There being no further business before the Senate Committee on Natural Resources, Chairman Smith adjourned the hearing at 9:36 a.m.
RESPECTFULLY SUBMITTED:
Rayanne J. Francis,
Committee Secretary
APPROVED BY:
Senator R. Hal Smith, Chairman
DATE:
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Senate Committee on Natural Resources
March 5, 1993
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