MINUTES OF THE

SENATE COMMITTEE ON NATURAL RESOURCES

Sixty-seventh Session

May 26, 1993

The Senate Committee on Natural Resources was called to order by Chairman R. Hal Smith, at 8:45 a.m., on Wednesday, May 26, 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 Mark A. James

Senator Joseph M. Neal, Jr.

Senator Dina Titus

Senator Thomas J. Hickey

GUEST LEGISLATORS PRESENT:

Assemblyman John C. Carpenter

STAFF MEMBERS PRESENT:

Caren Jenkins, Senior Research Analyst

Sherry Nesbitt, Senate Committee Secretary

OTHERS PRESENT:

Joe L. Johnson, Lobbyist, Sierra Club

Fred E. Wright, Member of the Public

M. Douglas Miller, Lobbyist, Nevada Miners & Prospectors

Association

Paul Buttari, Member, Nevada Outfitter & Guide Association

Steve Wright, Member, Nevada Outfitter & Guide Association

Gary Prunty, Member, Nevada Outfitter & Guide Association

Bill Gibson, Member, Nevada Outfitter & Guide Association

Henry Krenka, Member, Nevada Outfitter & Guide Association

Terry Crawforth, Representative, State of Nevada, Department of Wildlife

Al Boardman, Administrative Services Division Chief, State of Nevada, Department of Wildlife

Ned Ayre, Member of the Public

John Nelson, Member, Nevada Division of Environmental Protection

Jeff Harris, Coordinator, Clark County Department of Comprehensive Planning, Environmental Planning Division

David Horton, Lobbyist, Committee to Restore the Constitution

John Cobourn, Representative, University of Nevada Cooperative Extension

Jean Ford, Member, Nevada Water Forum

Senator Smith opened the hearing on Assembly Bill (A.B.) 301.

ASSEMBLY BILL 301: Revises definition of "package plant for sewage treatment" to exclude certain systems. (BDR 40-709)

Jeff Harris, Coordinator, Clark County Department of Comprehensive Planning, Environmental Planning Division, provided testimony in support of A.B. 301. Mr. Harris advised the intent of A.B. 301 is to clarify the definition of what is considered to be a waste water package plant. He further advised that during testimony before the assembly committee, language was suggested which has been inserted into the reprint of the bill. He advised one word was not inserted, and suggested this change be made. He suggested the sentence on line 13 be amended to read:

Mr. Harris pointed out that this language would change the word "individual" to "industrial."

Senator Neal referred to line 7 of the bill, and asked what would be considered a limited area.

Mr. Harris responded that typically package plants come into play on subdivisions, multiple residential lots, outside of publicly owned sewer service areas. He advised, in the case of Clark County, if there is a subdivision, for example, towards Laughlin, but not within any sewer service boundary, the boundary of the subdivision itself would be considered the limited area.

Senator Neal asked if limited area means temporary.

Mr. Harris replied this is not usually the case.

Senator Rhoads asked the definition of a leach field.

Mr. Harris advised a leach field drains the liquid fluid from a septic system.

Senator Rhoads asked for and received confirmation that this

would not pertain to a leach field for mining for gold.

Senator Smith confirmed there was no further testimony, and closed the hearing on A.B. 301.

The hearing was opened on Assembly Bill (A.B.) 476:

ASSEMBLY BILL 476: Revises and makes permanent program for issuance of restricted nonresident deer tags. (BDR 45-1552)

Assemblyman John C. Carpenter provided testimony in support of A.B. 476. He stated the bill would make permanent the issuance of deer tags for a nonresident, guided hunt. He advised the bill would make this program permanent. It restricts the number of tags to 250, or 9 percent of the deer tags issued to nonresidents during the previous year, whichever is greater. He stated the program has been successful and has helped the guides in Nevada. He stated the guides need this program to make their operations economically feasible. He advised the guides provide a service for people who do not know the area. He stated there has not been much controversy on the program, and the Nevada Department of Wildlife is in favor of the bill. He advised an additional fee is paid for this type of tag, which helps the Nevada Department of Wildlife in their funding source.

Fred Wright, Member of the Public, provided testimony in support of A.B. 476. Mr. Wright advised that, while he is a lobbyist for Nevada's Wildlife Coalition (NWC), he was testifying on his own behalf. He advised that he had heard no opposition to the bill from NWC. A copy of Mr. Wright's verbatim testimony is attached as Exhibit C. Mr. Wright explained, by way of clarification, that the entire bill is italicized because it has not been codified. He stated the changes are the elimination of references to the hunting seasons of 1990, 1991, 1992 and 1993, thereby making the provisions permanent. He also referred to lines 18 and 19, stating the number of tags issued would not exceed 9 percent of the tags issued to nonresidents during the previous year, or 250 tags, whichever is greater. He advised this is a change from previous language stating "15 percent" and "whichever is lessor." He advised this is not significant when the history is reviewed. Under the old formula, the maximum number of tags available was 250 in any one year, and even under the new formula the maximum number of tags available is 250. He advised in 1988, there were 3,516 nonresident tags, the highest number issued since the quota system was established. Therefore, the change in formula has no effect until the deer population increases.

Senator Neal asked Mr. Carpenter if this bill was important to him.

Mr. Carpenter replied it is important both to the area in which he lives, and to the guides. He is therefore supporting it because he believes in what it does.

Terry Crawforth, Representative, State of Nevada, Department of Wildlife, stated the department is in support of A.B. 476.

Senator Smith asked what was the amount of revenue this program raised for the department during the past several years.

Mr. Crawforth replied the revenue had been fairly consistent over the 1990 through 1993 period. He stated the program had generated $87,280 for the state.

Paul Buttari, Member, Nevada Outfitter & Guide Association, provided testimony in support of A.B. 476. Mr. Buttari provided the committee with copies of licensing forms from the states of Montana and Idaho. A copy of these forms is attached as Exhibit D. Mr. Buttari stated he provided these applications to point out why a program such as is provided in A.B. 476 is needed in Nevada. He advised that since the quota system was established in Nevada, where everyone must draw, the hunters many of whom are nonresidents contact guides to be assured they will able to go hunting. He advised other states also have quotas. However, he pointed out Montana's 1993 application states 5,600 tags are issued through outfitters to nonresidents, 33 percent of the big game combination tags in that state. He pointed out the 2,000 tags issued to deer outfitters also make up 33 percent of the tags in that state. Therefore, not only does Montana have more tags available, but a much greater opportunity. He stated the guides in Nevada are asking for 9 percent of the deer tags, which will help. He advised that rather than being greedy and asking for more, the outfitters wished to attempt to improve the situation from that in which they are currently working. He advised 9 percent is the average of the last 4 years, the 250 tags made up of the nonresident deer quota. He referred to page 2 of the Idaho regulations, and pointed out that 2,500 nonresident deer tags are allocated for 1993 through the outfitter program in that state, 16 percent of the total deer tags in that state. Of a total of 11,000 elk tags, 2,500 nonresident tags are allocated to outfitters. This amounts to 23 percent of the total elk tags. Mr. Buttari recalled that the original program, provided a sunset provision, giving the program a chance to work. He advised the program has worked, but guides are still working against allocations from other states. He stated this is why some outfitter tags should be available to nonresidents, to improve their odds. This would not take away from the resident quota of tags, but rather would all come out of the total nonresident tags.

Steve Wright, Member, Nevada Outfitter & Guide Association, provided testimony in support of A.B. 476. Mr. Wright advised he is the owner and operator of Secret Pass Outfitters in Ruby Valley, Nevada. He stated he has been in the guide business for approximately 35 years, and has seen all of the phases the industry has gone through. He advised the advent of the draw system for nonresident tags crippled his operation. He stated that in the time since the draw system began, he has had to sell over half of his horses, previously used for the hunting operation. He advised many guides went out of business during that period of time, some of whom were the best guides in the state. He recalled that the original provision, from which A.B. 476 evolved, was a real advantage to his operation. His operation is now getting back into full swing. His is a family operation which will be taken over by one of his sons. He advised much of his clientele went elsewhere when the draw system was instituted. He estimates 60 percent of the hunters were lost, because the chances of drawing in were so slim. He stated A.B. 476 will stabilize the guide industry and put it back on track.

Gary Prunty, Member, Nevada Outfitter & Guide Association, testified in support of A.B. 476. He agreed with all previous testimony. He stated his father has been an outfitter since 1941 and Gary and his brother have been assisting their father for the past 20 years. He advised that, not only do the hunters coming into the state provide revenue through purchased tags, but also in terms of lodging, food, hunting supplies, and entertainment.

Senator Rhoads asked if there was a big deer kill because of the harsh winter.

Mr. Prunty stated the deer herd above his ranch goes into Idaho during bad winters. He advised they have had more trouble with predators than weather.

Henry Krenka, Member, Nevada Outfitter & Guide Association, provided testimony in support of A.B. 476. He advised his business is Hidden Lake Outfitters in Ruby Valley, Nevada, and he has been in the guide business since 1981. He stated many of his hunters quit putting in for Nevada tags because the chances of drawing were so slim. These people put in for tags in other states. Mr. Krenka advised that in the past year, he began to get some of these hunters back. He was able to prove that Nevada had a system which was beginning to work. He stated his hunters spend between $2,500 and $2,700 per trip. This is for gasoline, licenses, outfitting fees, and other expenses.

Bill Gibson, Member, Nevada Outfitter & Guide Association, provided testimony in support of A.B. 476. He pointed out that Nevada resident hunters are completely unaffected by this proposal, as it applies only to nonresident hunters. He advised the guided nonresident tag concept has been proven to work. He stated the association has had much input from state agencies, the guides and their clients. This program solves problems for the guides and their clients. He stated the program has generated approximately $25,000 additional dollars each year for the Department of Wildlife. This is money over and above what is received for a resident deer tag. He stated a license and tag usually costs approximately $250. Through this program, the cost is $350. He stated the additional $100 goes to the Department of Wildlife and was built in from the beginning, to offset any possible costs generated by the program. He advised he is already booking hunters for the 1994 and 1995 season, based on the success of the program. He advised that written contracts between hunters and guides have been built into the program as concessions. Also, the guides must now keep daily logs for the Department of Wildlife to show who is with the guides, where they are going, and what they are harvesting. He advised a mandatory liability insurance clause was included in the program, as was first aid training for guides and sub-guides. He stated these were all good faith concessions that members of the guide industry members made with the Department of Wildlife in order to get the guided tag program. He stated it would be very unfair to take the program away from the guides and keep everything else in place.

Ned Ayre, Member of the Public, testified in support of A.B. 476. He advised he has been involved with hunting all of his life, and has been a hunter safety instructor in Nevada since the inception of that program. He stated he has always felt that anything which can be done to foster quality hunting in Nevada is a good thing, and believes A.B. 476 fosters quality hunting. He stated these provisions allow someone to take the time to find the animal that person wants, which is very important.

Senator Smith confirmed there was no further testimony regarding A.B. 476, and closed the hearing.

The hearing was opened on Senate Joint Resolution (S.J.R.) 27.

SENATE JOINT RESOLUTION 27: Proposes to amend ordinance of Nevada constitution to repeal disclaimer of interest of state in unappropriated public lands. (BDR C-1002)

Senator Dean Rhoads advised that Senator Adler introduced S.J.R. 27. Senator Rhoads stated the disclaimer clause was passed in 1865. The 25,000 Nevada residents at that time had to put this clause into the constitution in order to become a state. He advised when the Sagebrush Rebellion was in progress, the disclaimer clause was a weak selling point to convince the general public, outside of Nevada, that Nevada meant business. He stated it is the desire of the proponents to put this measure on the ballot and let the people vote to amend the constitution. This would not mean the state can automatically go through with the Sagebrush Rebellion, but it will greatly help. Ultimately, the federal legislation disclaimer language must be removed from the act. He advised this would send a signal to Congress and to America that Nevada is dissatisfied with having the disclaimer clause on record.

M. Douglas Miller, Lobbyist, Nevada Miners and Prospectors Association, provided testimony in support of S.J.R. 27. Mr. Miller stated there are certain conditions with which the state of Nevada has been struggling for the past 25 or 30 years. He stated his belief that it is time Nevada becomes a first class state, and in doing so, the state must assume certain obligations. He advised the disclaimer clause has caused the state a lot of embarrassment. He advised it was never intended to become a part of the acceptance of Nevada as a state. He stated the sovereignty of the state of Nevada is paramount. He advised he has worked for this and has been part of the Sagebrush Rebellion for many years. He stated that to become a first class state, now is the time for the legislature to move in this direction. He advised it is important that Nevada rid itself of the federal government in matters of our livelihood. He read from S.J.R. 27, at line 21:

WHEREAS, The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states;

Mr. Miller advised this is an important statement. He further read:

WHEREAS, The exercise of dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous and debilitating hardship upon the people of the State of Nevada;

Mr. Miller stated this has been going on for years, and it is time Nevada assumes its obligation and take a position. He read from Article 10 of the Bill of Rights:

The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.

Mr. Miller advised the process this follows would be from the Nevada legislature to the United States Congress, and then back to the people. The people will then have the opportunity to vote regarding whether to remain a second class state or to become a first class state.

Senator Neal stated the language in the resolution reads "forever disclaim." He stated the word "forever" seems to indicate there is no option.

Mr. Miller replied this is the reason for the resolution. The word "forever" can be changed. The state is guaranteed certain rights in the United States constitution. Nevada has never been given these rights. He stated it is up to the legislature to demand and stand for the things the citizens of Nevada believe the original constitution meant. He stated Nevada is about 20 years late in progress. It is time for the state to assume its obligation. He advised the Sagebrush Rebellion was attempted several years ago. He stated S.J.R. 27 could correct some of the things in which previous attempts have failed.

David Horton, Lobbyist, Committee to Restore the Constitution, provided testimony in favor of S.J.R 27. He advised he is legal counsel for the Committee to Restore the Constitution. He responded to Senator Neal's question by stating the language "forever disclaim" is one of the things requiring some action to be taken. He advised "forever disclaim" is a nullity. One of the problems with the present language of the territorial ordinance is that it attempts to change Article 1, Section 8, Clause 17, an express provision of the United States Constitution. This attempt is made by an agreement between the people of the territory of the state of Nevada and the Congress. He stated a case recited in the Nevada Revised Statutes (NRS), Pollard vs. Hagen, states this language which was put into the admission act of Alabama and Mississippi was held to be void. When those states were asked to forever disclaim all title to the unappropriated public lands, and the states agreed, a question came up as to whether there was constitutional authority to violate Article 1, Section 8, Clause 17. This section restricts the federal agencies to those specific areas in addition to the District of Columbia which are purchased with the consent of the legislature in the state in which the same shall be for the erection of forts, arsenals, dockyards and other needful buildings. He stated S.J.R. 27 is a bit of legal housekeeping. A nullity appears in the territorial ordinance and focus on the words "forever disclaim" is important from the standpoint of defending Nevada's position with regard to public lands. He referred to a treatise written in 1977 by attorney Harry Swainston, which referred to Pollard vs. Hagen relating to the equal footing doctrine. Mr. Swainston wrote concerning the problem of trying to represent the state of Nevada with the presence of the embarrassment of the territorial ordinance. Mr. Horton advised that, even though there is an express United States Constitution decision saying that such language is a nullity, the state has lost cases because of its presence. He advised the constitutional amendment procedure was suggested as a way to correct this. In 1955 Rene Lamere, a Senator from Battle Mountain, proposed a change in the territorial ordinance. The mechanism which was settled upon at that time was the constitutional amendment procedure. Mr. Horton advised the territorial ordinance was amended in 1955. He related other example of the ramifications of Congress ignoring the limits of its authority, attempting to expand this authority into unconstitutional areas. Mr. Horton advised there is precedent and specific authority for Nevada to remove from the territorial ordinance the disclaimer clause. He suggested that in addition to the recitals in S.J.R. 27 from page 1 from line 21 through 28, it may be counterproductive to begin by saying the state has a strong moral claim to the unappropriated public lands. He advised the state actually has a constitutional duty to enforce its sovereign control over those public lands. He stated reference to Pollard vs. Hagen appears in various statutes. He suggested if a position is to be taken regarding removal of the disclaimer clause, it might be worthwhile to take a strong position saying the state has a legal right, rather than a moral claim. This would convey the impression that there is a legal basis for the measure. He suggested dropping the first 20 lines on page 1 of the resolution. He further stated other language would improve the resolution. He referred to obtaining the consent to enforce the constitution. He advised there was a measure in the 1991 legislative session which passed the senate. The original request of that resolution was to remove the disclaimer clause. What came from legislative drafting and what passed the senate was a request asking permission from congress. He stated this appears to him to be incongruous. He suggested on page 2 of S.J.R. 27, lines 26 through 30 and lines 37 through 42 should be amend out. He stated if congress wanted to fix this, they would have done so long ago. He advised it is up to Nevada to clarify the law when it is confused by the people of the territory of Nevada, doing something for which they had no authority. He advised Congress could not bind Nevada then, and cannot bind Nevada now. He suggested his proposed amendments would give the resolution a better structure and make it easier to understand.

Senator Neal stated his concern regarding the procedure, and asked why it would be necessary to have this resolution go to a vote of the people and then send it to Congress.

Mr. Horton replied that this is what is proposed in S.J.R. 27, however, it is completely unnecessary.

Senator Adler advised he spoke with the bill drafters regarding this resolution. He referred to the Nevada constitution, which reads, "with the approval of Congress."

Senator Neal asked if the people vote before the resolution is sent to Congress for approval.

Senator Adler replied the people must vote for the language to be taken out of the constitution. The resolution is then submitted to the United State Senate. He recalled Mr. Horton's argument which is that because the language is unconstitutional in the first instance, a vote of the people removes it automatically.

Senator Adler advised this clause has caused numerous problems in lawsuits. Every time an attempt is made to enforce health and safety regulations on federal land, the authorities state Nevada has essentially given up its land and its ability to regulate health and safety on federal land. He advised this is a provision which has created problems with everyone from the ranchers and miners to the environmentalists and other groups.

Senator Adler read from the Nevada constitution:

In obedience to the requirements of an act of Congress the United States approved March twenty-first, eighteen hundred and sixty four to enable the people of Nevada to form a constitution and state government, this convention elected and convened in obedience to said enabling, do ordain as follows and this ordinance shall be irrevocable without the consent of the United States and the people of the state of Nevada.

Senator Adler stated the bill drafters see the language, "without the consent of the United States" as requiring the transmission of the resolution to Congress.

Mr. Horton stated he applies Pollard vs. Hagen in making his determination that transmission to Congress is unnecessary. He stated that any attempt to get the state of Nevada to agree to something which violates the constitution of the United States, even if Congress agrees, is void. For that reason, he again suggested dropping those portion of the resolution to which he previously referred.

Senator Adler agreed that lines 37 through 42 of the resolution are unnecessary. He stated that there is some controversy as to when the resolution would become effective; upon transmittal to the Senate or upon approval by the Senate.

Senator Neal asked if Senator Adler would agree with Mr. Horton's statement that Pollard vs. Hagen makes the term "forever disclaim" a nullity.

Senator Adler replied that he is not certain. He advised the bill drafters claim it does not. He advised lines 26 through 30 in the resolution may or may not matter. He suggested it might be good to leave the language in the resolution in the event the consent of Congress is required.

Mr. Horton asked if this was not done in the last legislative session.

Senator Adler agreed that the previous resolution asked for the consent of Congress. He reiterated that he did believe the resolution would need to be transmitted to Congress. He advised the attorney general's office stated, regarding the disclaimer clause, that the clause is used repeatedly by the federal government in lawsuits to attempt to limit the powers of the state to enforce any health and safety regulations in the state of Nevada.

Senator Neal stated the land cannot be taxed.

Senator Adler agreed that under this ordinance, this is correct.

Senator Smith advised a subcommittee composed of Senators Adler, Neal and Titus will pursue the resolution in some depth.

Joe L. Johnson, Lobbyist, Sierra Club, provided testimony in opposition to S.J.R. 27. He stated his opposition is not necessarily regarding the attempt of what the resolution is to do. He agreed there are probably areas needing help in allowing the state to deal with public lands. He stated his opposition has to do with practicality, as budgets are being closed the recognition that there are significant "in lieu of" taxes distributed to the counties of the state on percentages of federal land. He stated there are also significant transfers to rural county interests regarding grazing commissions, range improvement and oversight administration. He suggested processing S.J.R. 27 to culmination will incur a large fiscal impact upon the state. He stated when education is being funded at inadequate levels the question becomes that of the expenditure of federal dollars. He expressed his willingness to work with the subcommittee.

Senator Adler stated he did not believe the resolution has to do with Mr. Johnson's concern. Rather, the issue is the degree of sovereignty which has caused lost arguments over determinations of water rights and many other issues. He advised there is not a single state agency which has not had a problem whenever this claim has been asserted.

Mr. Johnson agreed and reiterated it is not a matter of the principle or the sovereignty, and indeed these issues probably need to be addressed. He stated his concern is the practical problem of funding.

Mr. Miller stated Payment in Lieu of Taxes (PILT) has to do with funds collected from the state of Nevada, from residents. He advised $20 million was collected by the Bureau of Land Management, according to that agency's records. He stated less than $7 million was returned to Nevada counties and to the PILT program. He advised, therefore, the federal government received $13 million from the state of Nevada which normally would come to the state of Nevada.

Senator Smith confirmed there was no further testimony regarding S.J.R. 27, and closed the hearing.

Senator Smith advised the committee had a request from the Department of Administration for introduction of a bill draft. He advised the bill draft has to do with fishing licenses; ascribing a fee of $15 for residents and $45 for nonresidents to have an extra pole, line and hook in the water.

SENATOR NEAL MOVED FOR COMMITTEE INTRODUCTION OF BDR 45-2047.

SENATOR TITUS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

There being no further business before the Senate Committee on Natural Resources, Chairman Smith adjourned the hearing at 9:45 a.m.

RESPECTFULLY SUBMITTED:

Sherry Nesbitt,

Committee Secretary

APPROVED BY:

Senator R. Hal Smith, Chairman

DATE:

Senate Committee on Natural Resources

May 26, 1993

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