MINUTES OF THE
SENATE COMMITTEE ON NATURAL RESOURCES
Sixty-seventh Session
June 16, 1993
The Senate Committee on Natural Resources was called to order by Chairman R. Hal Smith, at 8:49 a.m., on Wednesday, June 16, 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.
Senator Dina Titus
STAFF MEMBERS PRESENT:
Caren Jenkins, Senior Research Analyst
Rayanne Francis, Senate Committee Secretary
OTHERS PRESENT:
Walter I. Leberski, Representing Self
C. Joseph Guild III, Lobbyist, Nevada Cattlemen's Association
Ned Eyre, Representing Self
Stan Warren, Consultant, Sierra Pacific Power Company
R. Michael Turnipseed, State Engineer, Division of Water
Resources, Department of Conservation and Natural Resources
Doug Busselman, Executive Vice President, Nevada Farm Bureau
Clarence Burr, Member, Nevada Farm Bureau and Owner, F. Heise
Land & Livestock Company
Stephanie D. Licht, Lobbyist, Nevada Woolgrowers Association
John W. King, Habitat Staff Wildlife Biologist, Nevada
Department of Wildlife
Robert E. Hilderbrand, Chief Safety Engineer, Safety Engineering
Division, Nevada Department of Transportation
Brian R. Hutchins, Chief Deputy Attorney General, Transportation Division, Office of the Attorney General
Chairman Smith opened the hearing on Senate Bill (S.B.) 512.
SENATE BILL 512: Provides alternative method of showing subsisting right to water livestock.
Walter I. Leberski, Representing Self, introduced himself to members of the committee. As a paralegal at a law office in Elko, Nevada, he explained that he has been involved in the adjudication of irrigation and vested stock water rights.
Mr. Leberski said it was virtually impossible to determine what the actual number of livestock and streams of use had been in 1928. Due to the fact that reliable records were not main-tained, he emphasized that it is very expensive to attempt to document the consumptive use of water by livestock by the vested 1905 date or the permit system.
Mr. Leberski said he fully supported any method of providing a more economically feasible means of documenting the consumptive use of water by livestock. He stressed this method should also be more indicative of the present water use by the range livestock industry.
Mr. Leberski commented on the fairness of the vested water right system due to the fact it recognizes an existing water right. He said the intent of S.B. 512 is to give range operators the opportunity to apply for a vested water right at a later date (1950). He said passage of S.B. 512 would provide the state engineer with more definitive information on the actual consump-tive use of water by livestock. However, Mr. Leberski cautioned members of the committee that passage of this legislation is not intended to create any new uses, only to document existing uses.
To Mr. Leberski noted that only livestock owners could utilize an alternate method for showing a subsisting water right. He recommended that livestock watering be broken into two cate-gories: 1) upon the open range (consisting of public and/or unfenced private land; and 2) fenced private property (irrigated meadows). Mr. Leberski said the justification for this proposed amendment is due to the fact that most adjudication decrees include water for livestock. He admitted that there is some confusion concerning what would be the vested stock water rights outside of the cultured area.
Mr. Leberski noted that one other concern he has with this legislation deals with the topographic map prepared by the United State Geological Survey (USGS). He recommended that these maps be prepared by a registered water surveyor in Nevada. He said this would provide further assurance that a standard, usable topographic map would be available for use by the state engineer.
Senator Rhoads assured Chairman Smith that he already has a copy of the recommended changes to S.B. 512, proposed by Mr. Leberski. He promised to provide these amendments to Ms. Jenkins when the Senate Committee on Natural Resources processes S.B. 512.
Chairman Smith noticed that Doug Busselman, Executive Vice President, Nevada Farm Bureau, had signed in on the committee guest list and inquired if he would like to present testimony on S.B. 512. Mr. Busselman addressed members of the committee from the audience and explained the Nevada Farm Bureau supports passage of S.B. 512. Clarence Burr, Owner, F. Heise Land & Livestock Company, voiced his support for passage of S.B. 512. Stephanie D. Licht, Lobbyist, Nevada Woolgrowers Association, proclaimed that the Nevada Woolgrowers Association also supports the intent and purpose of S.B. 512.
C. Joseph Guild III, Lobbyist, Nevada Cattlemen's Association, introduced himself to members of the committee and asserted the Nevada Cattlemen's Association also supports passage of S.B. 512.
Ned Eyre, Representing Self, introduced himself to members of the committee. He wondered how S.B. 512 would affect him, personally, because he owns a piece of private property through which a stream flows. He explained his cattle drink from this stream and admitted he is a little confused about how this legislation would affect his particular situation. Mr. Eyre concluded his testimony by saying he is in favor of the clarifi-cation provided within S.B. 512 and supports its passage.
R. Michael Turnipseed, State Engineer, Division of Water Resources, Department of Conservation and Natural Resources, introduced himself to members of the committee. He pointed out that in an adjudication process, the Division of Water Resources has to take just about any kind of evidence it can possibly obtain.
Mr. Turnipseed explained he is a little confused about an earlier statement made by Mr. Leberski regarding the verifica-tion of the priority of a vested water right based upon evidence dated later than 1905. Mr. Turnipseed pointed out the division is able to verify the numbers based upon information dated later than 1905. However, he said Nevada Revised Statutes (NRS) 533.325 sets forth requirements for the appropriation of water by application and permit and is the exclusive way to appro-priate water after 1905, and was codified in 1913. He said the division accepts information (on the number of livestock on the range prior to 1905) from a variety of sources; i.e., hearsay evidence, documentation from the tax assessor, etc.
Mr. Turnipseed explained that it is extremely difficult to find anyone who is still alive today that has firsthand knowledge of water rights prior to 1905. He said this presents real problems for the Division of Water Resources when attempting to date a priority back to the 1870s or 1880s.
Mr. Turnipseed said the adjudication effort has become extremely cumbersome over the last 10 to 20 years due to the fact the Division of Water Resources is now serving the United States and is faced with reserve rights for wilderness areas, national parks and Nevada indian tribes. He called attention to the fact that the adjudication process for the Humboldt River was in litigation for approximately 30 years, while the Carson River was in litigation for approximately 50 years. Mr. Turnipseed said the adjudication effort is much more difficult due to the United States Department of Justice and various reserve rights.
Mr. Turnipseed explained that the division's normal process for dealing with livestock watering rights is to ask the range user or private landowner to indicate what is the maximum number of livestock that have ever utilized the water source (prior to 1905). He continued by saying the Division of Water Resources is very seldom challenged on this information.
Mr. Turnipseed admitted that range numbers changed sometimes, usually downward. He commented that if a claimant indicated that he ranges 600 cattle, but is only allowed to range 500 cattle, the Division of Water Resources would write the pre-liminary order for 600 cattle just in case the claimant received an increase in his allotment.
Mr. Turnipseed said he has no objections to language contained in section 2, subsection 2 of S.B. 512. He asserted that marking the location of a stream on a USGS topographical map will eliminate the need for a survey tie, especially if the stream is marked within one-sixteenth of a section. He voiced confidence in the ability of division staff to determine the position of a spring when coming within one-eighth of a mile of its location.
Mr. Turnipseed concluded his testimony by stating that he does not object to receiving USGS topographical maps with marks showing where a stream enters and exits private property or an allotment.
Senator Rhoads asked if Mr. Eyre would need to acquire a stock watering permit for the stream that runs through his private property from which cattle obtain water. Mr. Turnipseed advised Mr. Eyre to acquire a vested claim if the stream or basin has not been adjudicated. He continued by saying it does not make sense to have a 1993 priority for a water permit when, undoubtedly, cattle have watered from this stream prior to 1905. He said the division would require Mr. Eyre to simply document, for the record, a right that existed prior to 1905.
Senator Rhoads asked if S.B. 512, with the proposed amendments, would streamline the process for the Division of Water Resources. Mr. Turnipseed replied this bill would have the effect of clarifying what evidence can be used in the adjudi-cation effort to verify numbers of livestock. Senator Rhoads asked Mr. Turnipseed if he supports passage of S.B. 512. Mr. Turnipseed admitted that he feels the division is already doing everything set forth in S.B. 512, but wondered why the priority date of 1950 has been included in section 2, subsection 1(c). This matter concerned Mr. Turnipseed, because this language is adverse to language contained in statute dealing with appropria-tions. However, he continued by saying he does not object to verifying pre-1905 livestock watering rights with 1950 numbers.
Senator Neal assumed S.B. 512 had been drafted to address some kind of problem and asked what was this problem. Mr. Turnipseed replied by saying he does not see a problem in the division's adjudication process, other than the fact that he is unable to assign employees to the task due to budget cuts. He explained approximately 50 adjudications are ongoing, of which four or five were active up to 1 year ago, when the remaining two employees retired and the positions were cut out of the division's budget.
Senator Neal asked Mr. Turnipseed why he needed S.B. 512 in the first place. Mr. Turnipseed emphasized that he had not requested the bill and mentioned that he really does not feel that it is imperative to pass S.B. 512 out of the committee. However, he called attention to the fact that S.B. 512 does clarify the criteria to be used when verifying livestock numbers on the range, as well as listing various alternatives on how to verify the numbers provided. Senator Rhoads emphasized he had just completed a subsisting water right process. He remarked the existing routine was so costly and time-consuming that he welcomed any method that would simplify and streamline the process.
Referencing language contained in section 3 of S.B. 512, Mr. Turnipseed said the Division of Water Resources is restricted from going back and changing a decree. He said this was especially true in situations where adjudications were complicated enough; i.e., Humboldt, Carson and Truckee Rivers. In these situations, livestock watering rights were not adjudicated, so a statement was included making it clear that, if the claimant had irrigation rights, the right to range livestock also existed.
Stan Warren, Consultant, Sierra Pacific Power Company, intro-duced himself to members of the committee. He explained he had recently spoken with Mr. Leberski about a concern the company had with S.B. 512. Mr. Warren said the Sierra Pacific Power Company's concern was centered on possible conflicts with the Ore Ditch Decree. He pointed out the Ore Ditch Decree sets forth all of the livestock watering rights in its general provisions. Also, the Truckee River is fully adjudicated, because the tribe was granted nearly all of the appropriated water under the negotiated settlement. As a result, he pointed out there is no remaining water in the Truckee Basin for stock rights.
Mr. Warren suggested that the language contained in section 4 of S.B. 512, be amended with language suggested by the Sierra Pacific Power Company (Exhibit C).
Chairman Smith informed those in attendance that he intended to reschedule S.B. 512 to an upcoming work session. Mr. Warren apologized for not having an expert witness at the day's hearing, but offered to provide more detailed information at the upcoming work session.
Senator Neal asked what basin did the Ore Ditch Decree cover. Mr. Warren replied by saying the decree covered the general Washoe Valley area, because the Ore Ditch is just off of the Truckee River.
In response to Senator Neal's earlier question, Mr. Turnipseed said the Ore Ditch Decree is a lawsuit that was initiated by the United States against the Ore Ditch Water Company et al. He continued by saying this suit named every water user on the Truckee River in the State of Nevada. He said the federal court outlined all of the water rights on the Truckee River in Nevada. As far as stock watering, a general provision exists (similar to the Humboldt) that an individual with irrigation rights also has the right to water livestock. Senator Neal assumed that it does not prevent the watering of livestock. Mr. Turnipseed explained the problem is that it does not quantify actual livestock numbers, what priority dates exist or the sources from which the livestock can water.
Chairman Smith closed the hearing on S.B. 512 and opened the hearing on S.B. 516.
SENATE BILL 516: Clarifies provisions related to liability for certain damages caused by herding or grazing livestock or domestic animals.
Doug Busselman, Executive Vice President, Nevada Farm Bureau (NFB), introduced himself to members of the committee. He explained the NFB had requested this piece of legislation and Senator Lawrence E. Jacobsen had kindly sponsored its introduction.
Mr. Busselman pointed out the NFB has been most directly involved in developing the language contained in section 2, subsections 2, 3 and 4 of S.B. 516. He suggested that the words "or open range" in subsection 2 (line 3) and subsection 4 (line 13) be deleted from the bill. He said the justification for this amendment is based upon a problem that had been taking place in "non-open range" areas near Gardnerville, Nevada.
Mr. Busselman said the intent of the bill is to relieve the owner or operator of a ranch from being liable for injury or damages resulting from collisions between motor vehicles and domestic animals. He continued by explaining various ranchers, in the Gardnerville area, are having serious problems with individuals who are letting cattle roam onto roadways by cutting fences or opening gates.
Mr. Busselman pointed out S.B. 516 is attempting to add gates and cattle guards to the same type of liability protection afforded open range situations. At this point, Mr. Busselman introduced Clarence Burr, Member, Nevada Farm Bureau and Owner, F. Heise Land & Livestock Company, to members of the committee.
Mr. Burr drew attention to the fact that he is a fourth generation rancher in the Carson Valley. In the early 1930s, Mr. Burr said his family had donated an easement through their ranch to the State of Nevada upon which State Route 88 was constructed. One of the conditions for granting this easement was the requirement that the state build and maintain fences along State Route 88. Mr. Burr said this was accomplished and there have been relatively few problems over the years.
Mr. Burr explained that, approximately 4 years ago, the animal rights people became active in the Carson Valley. He said 23 gates, located on private property, were opened in a period spanning 10 days. He emphasized the fact that he had been one of the victims of this trespass. Mr. Burr explained a local veterinarian had assisted in the birth of a calf at approxi-mately 10 p.m. in the evening. However, sometime during the night (after the veterinarian had left the field and closed the gate), this gate had been opened again and Mr. Burr's cattle had wandered onto the highway. At 3 a.m. the following morning, a young individual ran his vehicle into these cattle. This individual was badly injured and collected $1 million from Mr. Burr's insurance company.
Mr. Burr said his insurance company had not required that he put padlocks on his gates, but he is doing it anyway. He said locking the gates is a good preventative measure but, unfor-tunately, local fishermen no longer have access to the river running through his property. Mr. Burr insisted it should not be necessary for ranchers to put locks on their gates just because "wackos" find it necessary to open gates for the pleasure of turning livestock out on the highway.
Mr. Burr state he knew of three other incidents that had taken place on State Route 88. He said one instance had taken place at a veterinary hospital 1 mile down the highway from his ranch. He continued by saying the gates to pens housing several horses were opened. Another incident involved one of Mr. Burr's close neighbors, whose gate was opened four times. He said after the second incident, his neighbor installed a lock on the gate. The third time the gate was opened, it was physically lifted off of its hinges. The fourth time the wire around the hinges was removed.
Mr. Burr said a serious problem exists with people who insist on allowing other peoples' cattle to roam free. However, this situation presents a detriment to individuals driving along the highway, as well as to the ranchers who are trying to stay in the cattle business. He explained the insurance companies place a $50,000 cap on a rancher's fences, and Mr. Burr sincerely hopes that gates and cattle guards would be included in this liability clause.
Mr. Busselman said another problem the ranchers in the Carson Valley have encountered is packs of dogs running through privately owned pastures. He stressed the fact that a cattle guard is not going to stop frightened cattle that are being chased by a pack of dogs. He encouraged members of the committee to include gates and cattle guards in the provisions contained in statute by passing S.B. 516.
Stephanie D. Licht, Lobbyist, Nevada Woolgrowers Association, introduced herself to members of the committee. She said the association supports the intent of S.B. 516. She recognized the fact that a serious problem exists with individuals who own fields near urban areas and highways. She also noted that, with increases in population, there is increased pressure to utilize public lands for recreational purposes. Thus, there is a higher incidence of gates being left open unintentionally. She also noted that fence wires sometimes break in colder weather when individuals attempt to crawl through fences by stretching the wires.
Ms. Licht admitted the sheep business is slightly different, because herders are almost constantly guarding and watching the herd. However, some of these herders own cattle and/or utilize horses when tending the sheep herd. She concluded her testimony by saying the Nevada Woolgrowers Association is in favor of S.B. 516, because sheep herders suffered some of the same kinds of consequences as ranchers, whether intentional or unintentional.
Senator Neal noticed that the bill would exempt the owner of livestock from any liability if the livestock caused an accident on a roadway. He asked how could the legislature protect the motoring public who may be unaware that livestock may be on the road. He wondered if S.B. 516 would have the effect of shifting the liability issue from the rancher to the State of Nevada. Ms. Licht recommended that Mr. Guild answer Senator Neal's question.
Mr. Guild responded to Senator Neal by saying the original language contained in section 2 of S.B. 516 had been in existence for approximately 100 years. This law set forth that the owner of sheep or cattle on the open range would not be liable for an injury or damage accident. He continued by saying that proposed language in section 2, subsection 1 of S.B. 516 also deleted the element of "duty," which is one of the elements of the formula for determining finding negligence in the state's tort law. Mr. Guild said this particular amendment would create a strict liability situation. He stated he was somewhat confused about why the language "has the duty" was deleted from subsection 1.
Senator Neal said he has been led to believe that the main thrust of the bill is to deal with keeping animals in fenced pastures. He asked who would be responsible for an accident involving a vehicle and a cow from an adjoining field with an open gate. Who would be responsible for the damages--the driver's auto insurance company or the rancher's insurance company? In answer to that question, Mdr. Guild explained that he had experienced problems similar to Mr. Burr's. He continued by saying he had been a rancher in Carson Valley and had someone tamper with and open one of his gates. One of his prize registered Angus cows, valued at $6,000, had been hit by a motorist. He remarked that the vehicle was severely damaged and the driver was able to collect from Mr. Guild's insurance company. Mr. Guild insisted that the gate had been tampered with, but pointed out that he was unable to prove that this gate had not been negligently left open by a ranch employee.
Mr. Guild called attention to the fact that S.B. 516 is attempting to deal with situations over which the rancher has no control. He emphasized that a provision in section 2, sub-section 3 of S.B. 516 would remove the rancher's liability exemption if it could be proven that he/she negligently allowed a domestic animal to wander onto a roadway. He continued by saying section 2, subsections 2 and 4 focused upon situations where someone else is responsible for releasing domestic animals on a roadway.
Senator Neal asked how could it possibly be determined whom had opened a gate on private property. Mr. Guild admitted this was a good question. However, he insisted that if there is no duty or requirement to put a padlock on each gate, at least the rancher would be able to point to some evidence that another individual tampered with the gate or fence. Senator Neal said if the gate is not locked, how could anyone prove who left the gate open. Mr. Guild said he is aware that a definite problem exists and is not aware of any other way to deal with this dilemma.
Mr. Guild said he was aware of another problem, which involved damage to the private property of a rancher on the open range. He said this situation had been prompted by an accident that had taken place near Austin, Nevada. He continued by explaining four to five head of cattle had been killed by a drunk driver. Mr. Guild remarked the rancher was not liable for the damage to the drunk driver's vehicle, however, the rancher was unable to collect $6,000 for his damaged property--the dead cattle. In an effort to deal with this problem, Mr. Guild recommended that section 2, subsection 1 of S.B. 516 be amended by adding language after the word "highway" (line 26). Specifically, he requested the following amendment, "but may collect damages from a person who negligently harms his property or person." He said this language would expand the existing 100-year-old law by allowing the rancher to sue for negligence when a driver kills his cattle or damages private property on the open range.
Senator Neal emphasized that open range carries with it a duty to warn. He asked Mr. Guild if he was saying that signs would also be posted on the roadways near fenced pastures. Mr. Guild responded by agreeing that some kind of warning duty be imposed upon the rancher, at his/her expense. He guessed this sign could indicate to the passing motorist that the surrounding fences are maintained by the rancher.
Senator Adler said he did not understand why a rancher could not receive compensation for dead animals from a negligent motorist. Mr. Guild explained that existing language in NRS 569.450 restricts a rancher from collecting damages. He said the duty, in a non-open range situation, falls upon the rancher to keep his domestic animals away from the highway. He said if others maliciously open gates or cut fence wires the rancher cannot collect for the loss of his cattle. Of course, Mr. Guild said the obvious, practical problem is to locate and prosecute the individual(s) responsible for causing the accident.
Senator Adler stated he was surprised that Mr. Guild had not been successful in obtaining compensation from the drunk driver who had killed his prize cow. Mr. Guild explained that the rancher was ultimately responsible for keeping his cattle off of the roadway. He said if the drunk driver had negligently allowed the cattle out onto the road by running over the fence line, then the rancher would have legal grounds for suing for damages.
Senator James said he was unable to locate language contained in S.B. 516 prohibiting a rancher from collecting damages. He read aloud section 3, subsection 1 of S.B. 516 and assumed a rancher would be able to sue for damages. Mr. Guild said he was referring to the original language contained within section 2, subsection 2 and 3 of S.B. 516. He pointed out the longer he looked at the bill, the more concerned he became about the way this bill had been drafted.
Senator James asked if Mr. Guild felt that the owner of the domestic livestock was liable for an accident, but there was no liability incurred by the driver of the vehicle that hit the livestock. Mr. Guild explained that, when his cow had been hit and killed, his experience with the way the law worked was that the word "negligent" was not taken into consideration. Due to this fact, it was a strict liability situation and Mr. Guild had been liable for the accident.
Considerable discussion ensued regarding the interpretation of the language currently contained in statute and the manner by which S.B. 516 would change this interpretation. Senator James stated he feels the driver should also be held accountable for possible negligence. In his case, Mr. Guild said he had be unable to prove that he had not caused the accident by leaving his gate open. Senator James stressed comparative fault should definitely be a consideration.
Senator Hickey assumed the liability issue revolved around the fence or gate. He said he is familiar with similar law regarding ranchers and railroads. He wondered if a similar situation could not be worked out where the entity responsible for the fence would also be responsible for the cattle. As far as the railroads are concerned, the legal theory is that if the railroad put up the fence or gate it is also responsible for any cattle that wandered onto a right-of-way. Senator Hickey concluded his statement by recommending that this is a much simpler method of determining who is liable for accidents.
Mr. Guild said this theory may have worked in earlier days, but ranchers in the Carson Valley have people who are opening gates and cutting fences. Senator Hickey asserted the railroad also used the claim that people were cutting fences in order to graze their cattle in adjoining ranges.
John W. King, Habitat Staff Wildlife Biologist, Nevada
Department of Wildlife (NDOW), introduced himself to members of the committee. He said the NDOW supports the intent of S.B. 516, but mentioned the department is concerned about a deletion in section 3 (line 20). He explained this change removed the reference to "cultivated" lands, which would apply to any land in the State of Nevada.
In reference to the amended language contained within section 3, subsection 2, Mr. King said this language could present some problems. He continued by saying the Bureau of Land Management (BLM) or United States (U.S.) Forest Service could have a fenced allotment upon which a rancher is allowed to graze his cattle. He stressed this means that the court could not require the state to ensure that the rancher keeps his livestock within the designated fenced area. Mr. King explained the NDOW is also concerned about possible disease problems if domestic sheep and Big Horn Sheep are allowed to interact.
Referring to earlier statements made by the NFB, Mr. King said the NDOT was not particularly concerned about possible liability problems with cultivated private lands. However, the NDOW still has major concerns with expanding this language to include public lands.
Robert E. Hilderbrand, Chief Safety Engineer, Safety Engineering
Division, Nevada Department of Transportation (NDOT), introduced himself to members of the committee. He explained S.B. 516 would directly affect the NDOT due to the fact it maintains fences along many of the state's highways.
Mr. Hilderbrand admitted he understands the state's ranchers have good intentions when requesting the introduction of S.B. 516. However, he said the NDOT is concerned about the far-reaching ramifications of passing S.B. 516, as written. He continued by saying the question had already been asked as to "who will be liable should an animal be hit on the road" regarding fenced rights-of-way.
Mr. Hilderbrand said the NDOT has entered into many cooperative agreements with ranchers, the BLM and the U.S. Forestry Service. He explained one of the stipulations, incorporated in these types of agreements, is to outline the specific responsibilities of each party. He continued by saying the rancher is typically responsible for maintaining his/her side of the fence line, while the NDOT would be responsible for the road side of the fence line. In other words, if NDOT maintenance crews damage a fence or if a car crashes into one, it is the NDOT's job to repair the fence. He drew attention to the fact that S.B. 516, as written, would force liability upon any person who negligently allows livestock onto a road.
Mr. Hilderbrand emphasized the fact that the NDOT does not have any problem with the existing open range law. He said if open range ranchers are concerned about not being able to obtain compensatory damages from the operators of vehicles which damage or kill their domestic animals, why not address this specific issue in a bill. Mr. Hilderbrand stated he fells it is inappropriate to have open range laws apply to fenced areas.
Mr. Hilderbrand said NDOT agreements sometimes involve ranchers who volunteer their time and effort into the construction of fences. He said this allowed the NDOT to stretch the taxpayer's dollars and install more fences. He continued by saying the opinions of state's ranchers are divided on this fencing issue. Mr. Hilderbrand said half of the state's ranchers swear by the fencing projects, the other half swear at them.
Mr. Hilderbrand said the NDOT's main objection to the passage of S.B. 516 is centered upon the liability issue. He admitted that any person who negligently allows a domestic animal on a roadway should incur liability for their action. He stressed that he does not know what definition judges and juries utilized when making decisions on the "negligence" issue. He recognized that the "animal rights activists" are causing problems by cutting fence lines and opening gates. However, he insisted that if S.B. 516 were enacted, as written, the resulting problems for the ranchers, NDOT and the taxpayers would be more than anyone could have possibly anticipated.
Mr. Hilderbrand admitted that he does not have any recommenda-tions on a better way to deal with these problems, but insisted that making a major revision to the existing statutes is not a cure-all. He admitted that the times have changed and much of the existing language contained in statute is dated. However, he stressed that S.B. 516 is going to create just as many problems as it intended to change.
Mr. Hilderbrand hoped that members of the Senate Committee on Natural Resources would take this matter under careful consideration before enacting S.B. 516.
Senator Hickey asked who owned and maintained the fences that were in the rights-of-way. With the exception of the interstate system, Mr. Hilderbrand replied by saying the ranchers are responsible for maintaining these fences. He continued by saying the fences and gates on the interstate system are owned and maintained by the NDOT, and all of the gates are locked. Senator Hickey asked who built these fences. Mr. Hilderbrand responded by saying the NDOT builds the fences. He continued by saying, in most cases, the state provides the supplies and constructs them. Of course, he pointed out the agreement with the other party (BLM, U.S. Forest Service or the owner of the grazing allotment) can all be fashioned differently. Normally, the owner of the property, through which the fence runs, is responsible for its maintenance and repair.
Senator Hickey asked what was the NDOT's normal procedure for fences running through public lands. Mr. Hilderbrand said the NDOT would enter into some sort of agreement with whomever was responsible for the property. Senator Hickey asked if these parties would be responsible for the fences once they are constructed. Mr. Hilderbrand said many of these fences are actually constructed by the BLM.
Brian R. Hutchins, Chief Deputy Attorney General, Transportation Division, Office of the Attorney General, introduced himself to members of the committee. He mentioned that he intended to address several problems the Attorney General's Office have with existing language in S.B. 516. He began by pointing out that section 2, subsection 2 will not require any person who owns, controls or is in possession of any domestic animal to place a padlock upon a gate. He said this is contrary to earlier testimony presented by various individuals indicating that there is a problem with unauthorized persons opening gates and allowing domestic animals onto the roadway.
Mr. Hutchins drew attention to the fact that in the latter half of section 2, subsection 2 of S.B. 516, which states that the owner of the livestock is not liable for an accident when an animal enters onto a roadway through an unlocked gate. He said the language in this subsection is somewhat misleading. He continued by pointing out that the language in section 2, subsection 3 of S.B. 516 conflicts with the proposed language in subsection 2.
Senator Adler admitted there is definitely a problem with the language currently drafted into S.B. 516. He pointed out the proposed language seems to set forth that if an animal wanders onto a roadway, through an unlocked gate, the rancher would not be liable. However, if an animal wanders onto a roadway, through a locked gate, the rancher would be liable. Mr. Hutchins replied by saying he was not even clear on this matter.
Mr. Hutchins commenced to review the proposed language contained in section 2, subsection 4 of S.B. 516. He explained the term "right of way" was being used in two different ways. He suggested that, perhaps, the second usage of this term should be replaced with the term "access."
Senator Hickey asked if a vehicle would have legal priority over cattle that had wandered onto a highway. Mr. Hutchins responded by pointing out the NDOT is considered to be a property owner and the purpose of fence is to preclude entry of any kind of domestic animal. He continued by saying the operator of a vehicle is allowed to seek damages from a collision with a domestic animal that has wandered onto a roadway from a fenced enclosure. Senator Hickey said the operator of a vehicle has reasonable assurance from the owner of the right-of-way that there will not be any obstructions on the state highway. He continued by saying a reasonable man would expect that cattle would not wander onto the roadway, because fences have been constructed. Mr. Hutchins replied that drivers expect that no livestock will be on the highway.
Senator Hickey asked what would happen if S.B. 516 was enacted and the operator of a vehicle hit a rancher's cow on a highway. He inquired what would be a "reasonable man's" recourse in this instance. Mr. Hutchins responded by saying the proposed changes would require that the NDOT post signs on all of the state's highways cautioning drivers that livestock may be on the roadway. Senator Hickey asked what would happen if the driver of a vehicle was killed; for instance, would the NDOT be responsible for paying damages to surviving kin. Mr. Hutchins said it was very hard to say what could develop from such a situation. Senator Hickey stressed that someone has to be responsible for ensuring that the road ahead is clear of obstacles. Mr. Hutchins said he agreed with this statement. Senator Hickey drew attention to the fact that if the owner of the livestock is not liable, the NDOT surely would be. Mr. Hutchins explained that it would be the NDOT's duty to warn, make safe and protect all drivers from obstacles that they may encounter on the state's highways. If S.B. 516 were enacted, as written, the NDOT would be responsible for any accidents resulting from livestock entering onto a right-of-way.
Chairman Smith interrupted Mr. Hutchins' testimony by recognizing that there are some definite problems with S.B. 516 in its current form. In an effort to refine proposed language, he assigned the bill to a subcommittee comprised of Senators Adler and Rhoads.
* * * * *
There being no further business before the Senate Committee on Natural Resources, Chairman Smith adjourned the hearing at 9:55 a.m.
RESPECTFULLY SUBMITTED:
Rayanne J. Francis,
Committee Secretary
APPROVED BY:
Senator R. Hal Smith, Chairman
DATE:
??
Senate Committee on Natural Resources
June 16, 1993
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