The Committee on Constitutional Amendments was called to order at 3:30 p.m., on Thursday, April 1, 1999. Chairman Robert E. Price presided in Room 1214 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Robert E. Price, Chairman

Mr. Harry Mortenson, Vice Chairman

Mr. Bernie Anderson

Mr. Greg Brower

Mr. Don Gustavson

Ms. Sheila Leslie

Ms. Kathy Von Tobel

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Richard Finn, professor at Western Nevada Community College, was searching for revenue alternatives after a grim discussion with the governor on the upcoming budget shortfall. The measure was one of the ideas Mr. Finn had to get more funding for the community colleges without increasing taxes. He acknowledged it was difficult to change the constitution. Mr. Finn wanted to reduce the tax burden on Nevadans, but help the community college students at the same time. He was concerned students needed the newest technology available. According to Mr. Finn, all fees acquired would be devoted to student services. Fees would be distributed according to geographic area. In other words, fines imposed would be devoted to the school served by that county. Mr. Finn said that would be the fairest way to distribute funds because funds would be proportional to the number of students. He stressed the demographic makeup of typical community college students. According to Mr. Finn, the schools were attended by Nevadans exclusively. In addition, many of the criminals were from other states, and they would be funding education for Nevadans. Mr. Finn reiterated technology was very important. He said the measure created a $10 fee for each crime to be paid to community colleges and stated no fiscal impact had been created. Mr. Finn said the average age for a community college student was 36 years old. He reiterated the measure did not increase tax burden and did not carry a "north-south" disparity problem. He made concluding remarks about the constitutional amendment process and reiterated his support for the resolution and forcing criminals to help pay for Nevada’s community colleges.

Mr. Anderson said he had chaired a legislative subcommittee on fees, fines, and forfeitures during the interim. Under Article 11, section 3 of the Nevada Constitution, all fines collected by the state were pledged for educational purposes. A school fund was set up with those fines and only the interest from that account could be spent. He said jurisdictions were losing anywhere from $2 to $8 million annually in that fund. He asked Mr. Finn if he had examined those issues when drafting the proposed legislation. Mr. Finn responded he had discussed the issue with many state officials. He felt the community colleges had fewer funding mechanisms than other types of schools. He said the best way would be to change the constitution, by using the resolution, to create a new revenue source for community colleges.

Mr. Anderson stated programs like that had been added to the judicial system in the past, and the bench was reluctant to impose the fees because they did not benefit from them. He asked how the fee would be collected, and at which court levels. Mr. Finn replied all three court levels would be responsible for imposing the fines. He acknowledged collection of the fines would be difficult at first.

Mr. Anderson asked if Mr. Finn had reviewed the subcommittee’s report on fees, fines, and forfeitures or the report drafted in the 1997 session by Senator Adler. Mr. Finn said he had spoken with Senator Adler about the resolution but had not reviewed the subcommittee’s report.

Ms. Von Tobel asked in which areas the funds would be used. Mr. Finn replied the funds would be used specifically for student services.

Ms. Von Tobel suggested Mr. Finn speak with the Board of Regents. They recently had an excess of revenue in student fees, but wanted permission to spend the funds in other areas. Mr. Finn said he was aware of the problem.

Ms. Leslie asked if Mr. Finn had considered putting nonsupplementation language into the bill. She asked if he was afraid the legislature would displace other revenue for the community colleges. Mr. Finn felt the legislators would not "rob" the community colleges to appropriate funds in other areas.

Ms. Leslie acknowledged funds would go to the community colleges no matter what, but clarified she was concerned the funds might be used as a replacement for the existing community college portion of the budget. Mr. Finn opined the community colleges could be trusted to appropriate the funds properly.

Mr. Anderson did not think Ms. Leslie was concerned about the discretion of the community college in spending the money, but rather the legislature would treat the money generated by the fee as a replacement for the usual budget. Mr. Finn said he understood the issue but did not feel legislators would risk their political careers by not appropriating money fairly. He said the intent of the bill was to upgrade student services and keep technology up to date in the colleges.

Ms. Leslie responded the issue was a real problem in the legislature and the budget process. She advised Mr. Finn it would be wise to include language to prohibit the legislature from using the funds as replacement dollars.

Damita Jo Halcromb, Western Nevada Community College student body president, stated the school was in need of more funding for student services. She urged the committee to support the resolution.

Chairman Price closed the hearing on A.J.R. 16.

David Horton, chairman of the Committee to Restore the Constitution, expressed his thanks to the committee for "trying to make Nevada a 100 percent state." Mr. Horton submitted a prepared copy of his testimony, which he read into the record (Exhibit C). In that statement, Mr. Horton described the history of the Federal Government’s control over public lands. He referred to the Legislative Workshop on Nevada’s Public Lands in his testimony, and submitted a copy of the workshop document for the record (Exhibit D). Mr. Horton argued President Jackson had vetoed federal control over public lands during his presidency. He continued the Federal Government had reversed its policy; and although it only owned 5 acres in Nevada, had taken control over most of Nevada. Mr. Horton also argued Nevada was obligated to enforce its own constitution when violated by the Federal Government.

Mr. Horton explained A.B. 672 was the enforcement mechanism for the Nevada Public Lands Ownership Act of 1979. He said a petition was being circulated and Nevada’s citizens were becoming increasingly dissatisfied with federal control of Nevada’s public lands. Mr. Horton also covered the economic benefits he foresaw with Nevada in control of the public lands within the state. According to Mr. Horton, economic losses amounted to over $250 million per year due to federal mismanagement of Nevada’s public lands. Statistics to support that figure could be found in the workbook (Exhibit D). He felt the impact on the mining industry had been "brought to a standstill by over-regulation and interference" by the Federal Government. He referred to a letter submitted by Gene Gustin, owner of an exploratory digging company in Elko (Exhibit E). That letter stated exploratory drilling had been cut back by more than half in the last 10 years, due to federal regulations. Mr. Gustin emphasized the adverse fiscal impact rural counties suffered due to the reduction in mining revenue.

Mr. Horton again referred to the workbook (Exhibit D). He argued other states that managed public lands made money on the land, while federally managed land consistently lost money. He continued by referring to the spring 1998 issue of Range magazine (Exhibit F). An article described the benefits to the land as a result of cattle grazing. Mr. Horton stated cattle grazing on the land would control fire and erosion, increase forage, and increase water storage capacity. He referred to the case United States v. New Mexico, a decision in which the Supreme Court ruled water rights belonged to those who used the water—not to the state or Federal Government. He asserted the Federal Government had attempted to get Nevada water, in defiance of the decision. Mr. Horton also submitted a copy of "Cliff’s Book" for the committee’s review (Exhibit G). The booklet described the range fires, which had erupted because of federal mismanagement of the land. Mr. Horton concluded A.B. 672 would make Nevada a 100 percent state, rather than a 13 percent state.

Mr. Horton addressed the issue of the nuclear waste repository and its placement at Yucca Mountain. He argued using Nevada’s public lands for storage of nuclear waste violated the United States Constitution, unless the state consented. He said passage of the resolution would help Nevada fight the repository. He cited the Tenth Amendment in reserving rights to the states. Mr. Horton quoted New York v. United States, a decision in which the Supreme Court found executive agencies could not grant consent for that kind of program—only the legislature could approve. He implied passage of the resolution would not only help Nevada take control of public lands, but also enforce the United States Constitution.

Stephanie Licht, lobbyist for the Elko County Board of Commissioners, read a statement into the record from Commissioner Tony Lesperance (Exhibit H). The letter began by outlining uses of public land, including mining and livestock grazing. Mr. Lesperance said the Federal Government, in managing the land, had supported those uses until the 1960’s and 70’s, when land management philosophies began to change. It was his feeling the new managers had different academic backgrounds than their predecessors, and they were mostly from the east. In addition, Mr. Lesperance felt the environmental movement of the 1960’s was a catalyst to the change in federal land management. He stated livestock grazing and hard rock mining had declined in the last 3 decades as a result, and would continue to decline in the next century, providing only a small portion of Nevada’s economy. He said the cumulative loss for Nevada amounted to $1 billion. Mr. Lesperance referred to the reduction of mining exploration and subsequent losses in revenue.

Mr. Lesperance wrote the economic impact was hitting the rural counties most severely. With little land belonging to the state, county, or private parties, the counties were forced to diversify. He predicted the diversification would be difficult because of the fierce competition for new industry. Mr. Lesperance argued the only appropriate solution would be to convert Nevada’s natural resources into revenue. He supported public land management on the local level and urged the committee to support A.B. 672.

Mr. Horton offered to read Mr. Gustin’s letter into the record (Exhibit E). Mr. Horton said Mr. Gustin was "intimately" familiar with northern Nevada mining operations. The letter urged the committee’s support of A.B. 672.

Mr. Horton wanted to rebut arguments made by the opposition to the bill. One of those arguments was the Federal Government owned the land "fair and square." According to Mr. Horton, one of the effects of the bill would be to limit litigation to the Supreme Court. He proposed some amendments to the bill (Exhibit I). Mr. Horton also presented a summary of the changes proposed to Nevada Revised Statutes (NRS) chapter 321 (Exhibit J).

Janine Hansen, president of Nevada Eagle Forum, stated her organization supported the Nevada Public Lands Ownership Act. She acknowledged revenue problems in the rural counties. She directed the committee to page 3, line 8, to read the amount of land in Nevada being held by the Federal Government. In the bill, it was stated 86 percent of the state was under federal control. In some rural counties, the Federal Government controlled 97 to 99 percent of the land. She empathized those counties had a small property tax base. One of the benefits of the act would allow transfer of public land into the private sector, providing for additional taxation possibilities. According to Reader’s Digest, 60 percent of American’s income went to state, local, and federal taxes. She said more families were forced to seek government assistance as a result. Ms. Hansen felt the bill would return the land to its rightful owners. In the Supreme Court decision Communications v. Dowd, the court said intellectual freedom allowed the public to reexamine accepted public policies. She said government was not responsible for keeping its citizens from "falling into error", but rather the reverse was true. Ms. Hansen continued by recognizing the fire hazards caused by federal mismanagement of the land. She suggested the bill could solve the Yucca Mountain issue and economic problems faced by Nevada. Ms. Hansen said the Federal Government had destroyed individual ranches one by one, because the ranchers did not have the economic ability to fight the Federal Government for the land. She said the bill reasserted Nevada’s sovereignty. Ms. Hansen suggested the Federal Government had been devised to allow the states to be sovereign for a check and balance system.

Merritt Yochum, chairman of the Independent American Party of Carson City, said his party supported the bill. In the recent party campaign, Mr. Yochum had promoted that type of legislation. He felt the bill had broad, enthusiastic support of Nevadans.

Brendan Trainor, chairman of the Washoe County Libertarian Party, provided testimony in support of the bill. He said the states were sovereign and separate from the Federal Government. The states were responsible for standing up to the Federal Government when infringed upon. After the Civil War, the Federal Government gained predominance over the states and the states no longer asserted sovereignty. The bureaucratic system that had evolved from Washington’s control over the land had led to mismanagement of the public land. Mr. Trainor asserted local control of the land would be more beneficial. He also brought up the issue of a moral claim to the land, rather than a legal one. He argued Nevada leaders had not pursued the legal claim to the land, and passage of the bill would build a foundation for the legal claim.

Doug Bierman, a representative of Eureka County, was concerned about section 13, subsection 2 of the bill. He wanted to see language about the makeup of the council deleted on page 9, lines 31 and 32. That deletion would allow the county to send an elected officer to the council. The Eureka County Board of Commissioners did support the bill as a whole.

Mr. Anderson asked if Mr. Bierman was a commissioner or other officer of the county. Mr. Bierman replied he was not.

Mr. Anderson asked if Mr. Bierman was familiar with RS-2477 roads, in relation to access to public lands. The "RS-2477" designation is for a public road on United States Forest Service land. Many people were concerned over possible closure of RS-2477 roads and subsequent loss of public access to the land. Mr. Bierman responded he was aware of the concept.

Mr. Anderson wanted to know if Eureka County supported the concept and return of public lands to the state or counties. Mr. Bierman said he was not prepared to respond.

Jeanne Herman, a private citizen, said she supported the bill and urged the committee to do so as well.

William Inman, a private citizen from Pershing County, came to Nevada because he knew the land had plentiful mineral deposits. He said federal intervention had destroyed mining in Nevada. He implored the legislature to pass the bill. Mr. Inman said he was carrying a petition for signatures in support of the bill, and the petition had more than 1700 signatures.

Frank Shesler, a private citizen from Carson City, urged the committee to support litigation as a means for getting back Nevada’s public lands.

Pat Little, a private citizen from Las Vegas, supported A.B. 672. She agreed with remarks made by previous speakers.

Joan Lynch, a private citizen from Las Vegas, also supported the bill.

Wayne Howle, deputy attorney general, read a copy of a letter sent to Chairman Price by Attorney General Frankie Sue Del Papa (Exhibit K). According to the letter, the type of law being presented by A.B. 672 had been declared unconstitutional in a district court decision entitled United States v. Nye County and State of Nevada in 1996. Ms. Del Papa wrote the decision was binding because Nevada had been named as a party in the suit. Additionally, the legal environment was not favorable to Nevada in regaining public lands, and the Office of the Attorney General could not support a legal claim to the land. She also objected to section 11, which empowered a district attorney to initiate or defend in litigation to enforce the provisions of the bill. The office argued district attorneys were not entitled to speak for the state, only for their individual counties.

Mr. Anderson asked about access to public lands. He wanted to know if the attorney general pursued complaints from persons prohibited to access those lands. Mr. Howle responded the office was pursuing one particular instance on behalf of a state agency. He said the attorney general would become involved only in that instance, not on behalf of individual citizens.

Mr. Anderson asked if public lands were reverted to the state, would the attorney general be in a better position to provide access to open state lands to the public. Mr. Howle replied the state would be in a position to grant access, as the owner of the public lands. He said RS-2477 arose in the context of private lands as well.

Pam Wilcox, administrator of the Division of State Lands, said the Public Lands Ownership Act was an exciting idea in 1979. She felt the legislative and executive branches had supported the concept wholeheartedly. However, in the past 20 years, the statute was challenged in the federal court system and was struck down as unconstitutional. In the meantime, the division had sought other approaches to solving the dilemma of the public lands. One of those approaches was federal legislation. Ms. Wilcox acknowledged Federal Government agencies must cooperate in order to make transfer of public lands a reality. She stated A.B. 672 was not a valid approach to solving Nevada’s public land issues. Ms. Wilcox estimated a fiscal impact of $120,000 for the first year on her agency, if the bill passed.

Mr. Anderson was interested in the fiscal note. He asked Ms. Wilcox if $114,000 would be the additional cost to the division for administering the public land possessed by the state. Ms. Wilcox replied the lands could not be managed with that amount. It would take several million dollars to manage all the land currently under federal control. She said the fiscal note assumed the courts would strike down the bill before management of state lands could begin. The fiscal note specifically addressed costs incurred by the Land Use Planning Council.

Mr. Anderson said $114,000 was a very small amount for administering public lands. He acknowledged the cost of administering public lands currently under federal control would be very high indeed.

Chairman Price asked how other states with large tracts of public land could afford to manage the land. He wondered if Ms. Wilcox and her agency had studied other states and their management costs.

Ms. Wilcox said the issue had been studied extensively. She said those other states gained revenue for such land uses as mining and timber. Ms. Wilcox conceded grazing was not a large generator of revenue, although grazing was the most common use for public land in Nevada. It would be very difficult to predict the amount of revenue taken in by assorted fees.

Mr. Mortenson asked what the cost would be to manage Nevada’s public lands, not including any gains. Ms. Wilcox responded no number total was available. She said the job would be very large and required a large staff.

Mr. Mortenson wanted to clarify no exploratory numbers were available, even for 1 year of management. Ms. Wilcox said the cost would be the same as the annual budget for the Bureau of Land Management. She said it was difficult to come to any conclusions because the agency did not know the intent of the legislature.

Mr. Mortenson asked if Ms. Wilcox could provide more detailed information to the committee. She said that information could be provided.

Mr. Gustavson said other western states managed their own public lands. He stated the Bureau of Land Management consistently lost money in managing the lands, while individual states were able to make a profit. Mr. Gustavson said more figures were needed by each state. Ms. Wilcox replied information had been compiled on other states’ management costs. She was happy to provide those figures for the committee. Ms. Wilcox continued most states held trust lands, which were held for a beneficiary, like schools. As a result, states charged higher use fees than the Federal Government.

Ms. Leslie asked if Ms. Wilcox could provide a summary of the federal court decision that made the original statute unconstitutional. Ms. Wilcox responded a copy could be provided to members of the committee.

Joe Johnson, representing the Toiyabe Chapter of the Sierra Club, expressed concerns about some portions of the bill. The organization did not object to the state’s claims about public lands. He was concerned state authority over the lands would be transferred to the counties if Nevada was to gain federal land. Other states had returns in industries like petroleum, coal, and timber, which were the most profitable. He said most states charged mining fees up front as well as royalties. Mr. Johnson argued ranchers would be further handicapped by state ownership of the lands because of the low market value of beef. Mr. Johnson also addressed the concept of Yucca Mountain and Department of Defense lands in relation to the bill. He pointed out unappropriated lands would not include Department of Defense property. Mr. Johnson felt the Federal Government was the trustee for the public lands, under current law. The club was not opposed to state control of the land. However, the costs of administration had not been addressed. He did not recommend the bill be passed.

Ms. Leslie asked if Mr. Johnson had reviewed the court decision to which Mr. Howle and Ms. Wilcox referred. Mr. Johnson responded he had not. He had read correspondence from the Attorney General’s Office regarding the issue prior to the court’s decision.

Mr. Horton said page 7 of the workbook (Exhibit D) showed results of management costs of other states. All of those states were making a profit. At the same time, other states did not have as much public land as Nevada. That made it difficult to estimate the management cost to the state. Mr. Horton argued state control of the land would not be as "extravagant and wasteful" as the Bureau of Land Management. He said state management had a 12 to 1 cost –effective advantage to federal management. Fire suppression costs were a major factor in that calculation. In addition, mining claims closed out by the Federal Government resulted in millions of dollars in lost revenue.

Mr. Horton argued the Public Lands Ownership Act of 1979 did not have enforcement provisions, and therefore was not litigated in the 1996 federal court decision. The bill before the committee added the enforcement provisions for that 1979 statute. He said A.B. 672 was patterned after the writ of habeas corpus, which gave teeth to the enforcement of that right. After parliament passed an enforcement provision for the writ, all litigation was stopped and violations no longer occurred. Mr. Horton also stated the attorney general did not have exclusivity over public land law. He said in all other forms of law, the district attorney handled law on a county level. Mr. Horton argued the counties should be able to utilize the office of the district attorney to enforce the provisions, especially if the attorney general refused to do so. He referred again to the workbook (Exhibit D), directing the committee to page 28. Mr. Horton stated the 1996 court decision against Nye County and the State of Nevada was not adjudicated in the court with jurisdiction. He said the Supreme Court had original jurisdiction over the case as stipulated in Article III, Section 2, Clause 2 of the United States Constitution. He also cited United States v. West Virginia as a decision supporting his argument. Mr. Horton continued, the attorney general, in defending the state in 1996, made no legal claim to Nevada’s public lands. He thought the attorney general should not have represented the state in the case, because she did not support Nevada’s claim to public lands.

Mr. Horton referred the committee to suggested amendments (Exhibit I). Those amendments changed the title of the bill to read "an act relating to intergovernmental relations; providing a civil remedy and a criminal penalty for certain acts with respect to Nevada’s Public Lands, and providing other matters properly relating thereto." Another amendment deleted section 8, subsection 4, paragraph b through subsection 5, paragraph b. That amendment removed language to which the Legislative Counsel objected, it would also take out language in section 8 requiring a two-thirds majority vote for passage. The final amendment on page 9, lines 31 and 32 deleted the requirement a council member must not be an elected county official.

The meeting of the Assembly Committee on Constitutional Amendments was adjourned at 6:45 p.m.

RESPECTFULLY SUBMITTED:

Kelly Gregory,

Committee Secretary

APPROVED BY:

Assemblyman Bob Price, Chairman

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