MINUTES OF THE

      SENATE COMMITTEE ON TRANSPORTATION

 

      Sixty-seventh Session

      March 25, 1993

 

 

 

The Senate Committee on Transportation was called to order by Chairman William R. O'Donnell, at 1:30 p.m., on Thursday, March 25, 1993, in Room 226 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

Senator William R. O'Donnell, Chairman

Senator Lawrence E. Jacobsen, Vice Chairman

Senator Mark A. James

Senator Leonard V. Nevin

Senator Joseph M. Neal, Jr.

Senator Thomas J. Hickey

Senator Lori L. Brown

 

GUEST LEGISLATORS PRESENT:

 

Assemblyman James A. Gibbons, Washoe County, Assembly District 25

 

STAFF MEMBERS PRESENT:

 

Paul Mouritsen, Senior Research Analyst

Terri Jo Wittenberg, Committee Secretary

 

OTHERS PRESENT:

 

Frank Daykin, Attorney and Concerned Citizen

Frank W. Lewis, Concerned Citizen

Richard C. Davis, Concerned Citizen

Lucille Lusk, Nevada Coalition of Conservative Citizens

Joe Melcher, Washoe County Recorder

Les Dunn, Lyon Country Roads Superintendent

Nancy Carr, Lyon County Recorder

Sue Beaudreu, Douglas County Recorder

Lee Smith, Speaking for Gaylan Spriggs of Rayrock Mines

Joe Johnson, Sierra Club

M. Douglas Miller, President, Nevada Miners & Prospectors Association

Ed Presley, Concerned Citizen

Juanita Cox, Concerned Citizen

Gayla Higgins, Concerned Citizen

Donald G. Strachan, Concerned Citizen

Russ Fields, Nevada Department of Minerals

Floyd Love, Concerned Citizen

Clifford Gardner, Concerned Citizen

John Hengen, Western Mining Council Incorporated

Stan Warren, Sierra Pacific Power Company

James Harding, Right of Way Engineer, Sierra Pacific Power Company

Doug Busselman, Vice President, Nevada Farm Bureau

Harry Pappas, Nevada State Rifle & Pistol Association (NSRPA) and Hunters Alert (HA)

 

Chairman O'Donnell opened the hearing on Senate Bill (S.B.) 235 and S.B. 236.

 

S.B. 235:   Provides definition for accessory roads and clarifies rights of users of such roads.

 

S.B. 236:   Makes certain changes relating to minor county roads.

 

Assemblyman James A. Gibbons, Washoe County, Assembly District 32, testified in favor of S.B. 235 and S.B. 236.  Mr. Gibbons said both of the bills come at a time when there is a definite need for a provision which will grant immunity for accessory roads.  Mr. Gibbons said the bill would grant the county immunity for maintenance or non-maintenance for the public to travel over these roads. 

 

Mr. Gibbons said the roads affected are roads which were constructed between 1866 and 1976, when the congressional law was repealed.  He said these roads are used by the public across public grounds, primarily to get to private property.

 

Senator Brown asked if the roads, which are not maintained, look accessible to the average motorist.

 

Mr. Gibbons said there was no notification as to what is, or is not, an accessory road because the definition is not in the county roadway today.  He added, if the road is defined as a county roadway it must be maintained to county standards and that is the reason for new terminology which grants an "accessory" definition road.

 

Senator Brown said she had some concerns about sovereign immunity on the bill.  She said maybe such roads, that are un-maintained, and which look like a road, could have a sign at the beginning saying that this is an un-maintained road and persons enter at their own risk.

 

 

Mr. Gibbons said that if today, a federal highway is abandoned, the right to that property goes to the county.  He added, the county oftentimes takes that highway and posts warnings where they have knowledge of the use of that roadway.  He said that many of these accessory roads have not been listed as roads on maps which have been filed in counties.  He said this bill provides for a provision to give that acknowledgment as an accessory road for a specific purpose for the public to use.

 

Frank Daykin, Attorney and Concerned Citizen, spoke in favor of S.B. 235.  Mr. Daykin said most of the roads that S.B. 235 would cover are not very inviting because the distinction here is that minor county roads are those which have been used more extensively by the public.  He added, accessory roads may have come into being in the past primarily for private access to some particular mining claim, pasture or the like, and usually do not look nearly that much maintained.  Mr. Daykin said the rule in Nevada is, unless it is paved or looks as if it has been graveled, a person takes it at their own risk.

 

Senator Hickey asked who would determine the classification of an accessory road.

 

Mr. Daykin said it would be determined by whether the road exists under the Act of 1866, which was repealed in 1976.

 

Senator Hickey said, in effect, this law would change what congress has done.  He then said if the permanent closing of an accessory road deprives a private owner of property access over public property, the public agency which closes the road shall pay the private owner just compensation for his loss. 

 

Senator Hickey asked what the qualifications were for closing this type of road.

 

Mr. Daykin said a fire protection entity can close a road temporarily and a board of county commissioners can close a road whenever the public welfare requires.

 

Chairman O'Donnell asked if private land would be affected by the either of these bills.

 

Mr. Daykin said these bills would have no effect on private lands and would only apply to public lands.

 

Mr. Daykin gave a short narrative of his history in the Nevada legislature.

 

 

Mr. Daykin said S.B. 236 deals with Nevada Revised Statutes (NRS) 40317 which lays out three of the classifications of public roads. 

 

Chairman O'Donnell asked if Mr. Daykin was referring to S.B. 235 or S.B. 236.

 

Mr. Daykin said he was mentioning S.B. 236 to lead into S.B. 235.

 

Mr. Daykin continued, saying the first two of those three classifications, the main county roads and the ordinary county roads, have existed for a long time.  He said the third class, minor county roads, was added in 1979.  He said the criterion for being a minor county road, is that it was not important enough to be either a main or an ordinary county road.  He said there was evidence of continued public use.  He said the fourth category has been added because under the Act of 1866, while these roads were made open to the public, the public did not necessarily use them.  

 

Mr. Daykin said S.B. 235 would provide that all legally existing roads are covered.  He added, under this bill, state and local governments do not have a duty to maintain these accessory roads and a private owner may use it at any time and it can be closed temporarily for emergency but permanently, only upon compensation, unless there is another way to the land to which it gave access.  He said the last provision of S.B. 235 is a declaration that the public interest is served by keeping accessory roads open because, among other things, they provide access for fire equipment and access for law enforcement officers.  Mr. Daykin said the accessory roads also enhance the taxable value of the private property they serve.

 

Senator Nevin asked if this bill would affect utility roads which run alongside the utility poles and structures.

 

Mr. Daykin said that if the pole road was put in before 1976 if might be one of these accessory roads, but it is much more likely to be a road over an easement that was obtained from the United States or from the other landowners and in that case, this bill would not affect it at all.

 

Senator Brown said she does see a problem and a need which is trying to be addressed by these two bills.  She said she does want that problem to be corrected.  Senator Brown did say she had a problem with sovereign immunity.  She asked if the bill simply said that the state has no duty to maintain these, without saying "and is immune from an liability," wouldn't the court then look at whether there was an obvious danger that any reasonable person would have not gone on that road.

 

Mr. Daykin said the state can have negligence only if they have a duty and if they have no standard of maintenance, the arguable question would be, even though there was no standard, did the state have some sort of duty to maintain if it was there.

 

Senator James asked why the state needed the immunity.  She asked if people were suing the state after these roads are opened up.

 

Mr. Daykin said district attorneys are very wary of any possible liability and the express declaration of immunity lays that to rest. He added, if the bill did not make the express declaration, the cases could probably be successfully defended, but it costs public money to defend a case.  He said, that is the logical explanation for wariness that he does not share.

 

Senator James said this lets a person make a motion to dismiss, as opposed to a summary judgement or a trial.

 

Frank W. Lewis, Concerned Citizen, spoke from prepared testimony (Exhibit C) in favor of S.B. 235 and S.B. 236. 

 

Chairman O'Donnell asked what if Mr. Lewis had called the phone number listed on the sign which had announced the road was closed.

 

Mr. Lewis said he had called and had reached the naval base outside of Fallon.  He also said the Navy had gone two times before Congress to get an additional 80,000 acres of land for the base.  He said on those two occasions Congress turned them down and said they could not have the land.  He said, the Navy then went to the Bureau of Land Management (BLM) and requested the land and the BLM then closed 80,000 acres of BLM land.

 

Mr. Lewis added, that after the closure, he called the BLM and asked them what would happen if he crossed the BLM land to get to his property.  The BLM told him he could be arrested, fined or put in jail; whatever they decided to do to him.

 

Chairman O'Donnell asked if there was anyone in the audience from the United States Navy.  No one was present.

 

Senator Hickey asked how other states have dealt with this road closure problem.

 

 

Mr. Daykin said there was a wide range of ways that other states had dealt with this.  He said some have done nothing at all.  He added, Utah had processed a number of applications to designate these accessory roads and have them mapped.  He said Oregon had already designated a map of around 700 roads.

 

Chairman O'Donnell asked who owned the property that was closed by the BLM.

 

Mr. Lewis said this property was owned by the BLM.

 

Richard C. Davis, Concerned Citizen, spoke from prepared testimony (Exhibit D) in favor of S.B. 235 and S.B. 236. 

 

Mr. Davis also submitted the Esmeralda County Master Plan (Exhibit E) for the committee's review.

 

Senator Nevin asked what Nevada could do to supersede any federal law or guidelines.

 

Chairman O'Donnell said the bill requires the attorney general to file an action to require a hearing.

 

Lucille Lusk, Nevada Coalition of Conservative Citizens, spoke in favor of S.B. 235 and S.B. 236.  Ms. Lusk said her organization supported these bills as a matter of principle.  She said the intent of the United States Constitution was that private property should be held inviolate.  She added, when the federal government comes in and infringes on that right by denying access, that is an infringement.

 

Ms. Lusk said these accessory, or minor roads need to be designated under Nevada law and S.B. 236 provided for that designation.  She also said she supports the liability immunity part of the bill.

 

Joe Melcher, Washoe County Recorder, spoke from prepared testimony (Exhibit F) in opposition to S.B. 236.

 

Senator Nevin asked what the cost would be to the county recorders to handle the added recording responsibilities for these maps.

 

Mr. Melcher said he did not have any idea how much this would cost the county.  He said if the maps come in at a certain size and condition, the costs would be minimal.

 

Les Dunn, Lyon Country Roads Superintendent, spoke in opposition to S.B. 236.

 

Nancy Carr, Lyon County Recorder, spoke in opposition to

S.B. 236.

 

Sue Beaudreu, Douglas County Recorder, spoke in opposition to S.B. 236.

 

Senator Brown asked if any of the opponents had any proposed amendments to help make this bill acceptable to them.

 

Mr. Dunn said he did not have any suggestions, but it would be possible to meet with the BLM and come back with some possible answers.

 

Mr. Melcher said that if a standard could be established, such as a specific size and type of paper, he would be happy to consider those changes.

 

Lee Smith, speaking for Gaylan Spriggs of Rayrock Mines, said they were in favor of S.B. 235.

 

Joe Johnson, Sierra Club, spoke in favor of S.B. 235 and

S.B. 236.  Mr. Johnson said he also had a suggested amendment to S.B. 235.

 

Chairman O'Donnell asked Mr. Johnson to work out the language of the amendment and get it to the committee as soon as possible.

 

The committee discussed S.B. 235 and S.B. 236 and questioned

Mr. Lewis and Mr. Johnson.

 

M. Douglas Miller, President, Nevada Miners & Prospectors Association, said he was in favor of S.B. 235 and S.B. 236. 

Mr. Miller said

 

Ed Presley, Concerned Citizen, said he was in favor of S.B. 235 and S.B. 236.  Mr. Presley submitted a newspaper article (Exhibit G) for the committee's review. 

 

Juanita Cox, Concerned Citizen, said she was in favor of S.B. 235 and S.B. 236.  She said that since Nevada is a sovereign state it must send a clear message to the United States Government that Nevada intends to stay that way.

 

Gayla Higgins, Concerned Citizen, said she was in favor of S.B. 235 and S.B. 236.

 

Donald G. Strachan, Concerned Citizen, said he was in favor of S.B. 235 and S.B. 236.  Mr. Strachan said there are Government Services Agency (GSA) maps available for $2.50 which can be submitted to the county recorders.

 

Senator Nevin asked if these roads were designated on these GSA maps.

 

Mr. Strachan said that until recently these roads had be designated, but that recently the GSA had been removing roads from these maps.

 

Russ Fields, Nevada Department of Minerals, said he was in favor of S.B. 235 and S.B. 236.

 

Floyd Love, Concerned Citizen, said he was in favor of S.B. 235 and S.B. 236.

 

Clifford Gardner, Concerned Citizen, said he was in favor of S.B. 235 and S.B. 236.

 

John Hengen, Western Mining Council Incorporated, said he was in favor of S.B. 235 and S.B. 236.

 

Stan Warren, Sierra Pacific Power Company, said he was in support of S.B. 235.  Mr. Warren said he did have a suggested amendment to the bill.

 

Chairman O'Donnell asked Mr. Warren to get a copy of the proposed amendment to the committee as soon as possible.

 

James Harding, Right of Way Engineer, Sierra Pacific Power Company, discussed the proposed amendment to S.B. 235.

 

Doug Busselman, Vice President, Nevada Farm Bureau, said he was

in favor of S.B. 235 and S.B. 236.

 

Harry Pappas, Nevada State Rifle & Pistol Association (NSRPA) and Hunters Alert (HA), submitted a proposed amendment

(Exhibit H) to S.B. 235.

 

Chairman O'Donnell closed the hearing on S.B. 235 and S.B. 236 and opened the hearing on Senate Joint Resolution (S.J.R.) 12.

 

S.J.R. 12:        Urges Federal Government to recognize rights of users of certain roads over public lands.

 

No one had anything to add to this resolution since most of the areas had already been covered while discussing S.B. 235 and S.B. 236. 

 

Chairman O'Donnell closed the hearing on S.J.R. 12.

 

 

Chairman O'Donnell then drew attention to two bill draft requests (BDRs) requiring committee introduction.  He passed out copies of the BDRs for review and proceeded to read each BDR by number and summary:

 

BDR S-813:        Transfer ownership and responsibility for maintenance of 6-Mile Canyon Road to Department of Transportation.

 

      SENATOR NEVIN MOVED FOR COMMITTEE INTRODUCTION OF BDR S-813.

 

      SENATOR JAMES SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATORS HICKEY, JACOBSEN AND NEAL WERE ABSENT FOR THE VOTE.)

 

      * * * * *

 

BDR S-1171:       Require redesign and reissuance of license plates for motor vehicles.

 

      SENATOR NEVIN MOVED FOR COMMITTEE INTRODUCTION OF BDR S-1171.

 

      SENATOR JAMES SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATORS HICKEY, JACOBSEN AND NEAL WERE ABSENT FOR THE VOTE.)

 

      * * * * *

 

 

There being no further business, Chairman O'Donnell adjourned the meeting at 4:45 p.m.

 

                                        RESPECTFULLY SUBMITTED:

 

 

 

                                                             

                                             Terri Jo Wittenberg,

                                             Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                     

Senator William R. O'Donnell, Chairman

 

 

DATE:                                

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Senate Committee on Transportation

March 25, 1993

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