The Senate Committee on Natural Resources was called to order by Chairman Dean A. Rhoads, at 2:15 p.m., on Wednesday, May 5, 1999, in Room 2144 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Dean A. Rhoads, Chairman

Senator Lawrence E. Jacobsen, Vice Chairman

Senator Mike McGinness

Senator Mark A. James

Senator Raymond C. Shaffer

Senator Bob Coffin

Senator Maggie Carlton

GUEST LEGISLATORS PRESENT:

Assemblyman John C. Carpenter, Elko County Assembly District No. 33

Assemblyman Tom Collins, Clark County Assembly District No. 1

STAFF MEMBERS PRESENT:

Fred Welden, Committee Policy Analyst

Scott Corbett, Committee Secretary

OTHERS PRESENT:

Chairman Rhoads opened the work session on Assembly (A.B.) Bill 132, and asked Fred Welden, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, to explain the proposed amendment. Mr. Welden explained that A.B. 132 outlines the authority of the Division of State Lands as it relates to previous environmental bond acts. Mr. Welden referred to the proposed amendment (Exhibit C), and stated this amendment would specify what programs or projects in which the Division of State Lands could engage.

Chairman Rhoads opened the work session on A.B. 197.

Chairman Rhoads directed attention to A.B. 198 and referred to the proposed amendment (Exhibit D).

Chairman Rhoads opened the next work session item, A.B. 252, and referred to the amendment (Exhibit D) proposed by the Walker River Irrigation District.

Chairman Rhoads referred to A.B. 450.

Chairman Rhoads opened the work session on A.B. 490, and referred to the proposed amendment (Exhibit D) from Assemblyman Lynn C. Hettrick, Carson City and Douglas counties Assembly District No. 39.

Senator Coffin asked for an explanation of why the bill is being passed if the proposed amendment is rewriting the whole bill. Chairman Rhoads explained that Assemblyman Hettrick did give testimony on this amendment and explained why it had to be rewritten, and Senator Coffin agreed.

Chairman Rhoads opened the hearing on A.B. 380.

Assemblywoman Marcia de Braga, Churchill, White Pine, Lander and Eureka counties Assembly District No. 35, spoke in support of A.B. 380 from prepared comments (Exhibit E), explaining how this measure will positively affect water rights in Nevada. Assemblywoman de Braga also submitted a letter of legislative intent (Exhibit F) that outlined the prerequisites that need to be facilitated prior to A.B. 380 being implemented.

Chairman Rhoads asked Assemblywoman de Braga if the prerequisites outlined in the letter of legislative intent would be addressed and entered into the record. Assemblywoman de Braga replied that the parties are in agreement, and are working out the details. Chairman Rhoads asked if the committee should process this bill without the details being finalized. Assemblywoman de Braga urged the chairman to proceed with the bill because the concerned parties have already agreed on its contents and the details in question are not dependent on passage of A.B. 380.

Senator McGinness congratulated Assemblywoman de Braga for her work in putting together this measure and agreed that it should not be processed until the parties have finalized the details in question. Assemblywoman de Braga agreed that this should be done prior to the bill being passed out of committee, and added that when these details are agreed upon and in writing prior to the bill being passed will allow for a comfort zone between the parties.

James T. Regan, Chairman, Board of Commissioners, Churchill County, remarked A.B. 380 is a good bill, and clarified that the details in question would not change or affect the bill.

Ken Tedford Jr., Mayor, City of Fallon, also congratulated Assemblywoman de Braga for her efforts in putting together A.B. 380, and stated he intends to iron out the details today. Chairman Rhoads asked what kind of events must occur to cause the withdrawal of all the litigation. Assemblywoman de Braga replied that is one of the details that is being taken care of and that a rough draft has been outlined, but there are still some fine details that need to be agreed upon. Chairman Rhoads iterated that he would like to see answers to all of the details in question between the parties before processing the measure.

Senator McGinness commented that he has spoken with members of the Senate Committee on Finance and assured the parties involved that the funding aspect of the bill is not an issue.

Virgil Getto, former State Senator, stated that he thinks A.B. 380 might be the most important piece of legislation that is being heard this session because legislation like A.B. 380 allows future water use to be stabilized. Senator Getto added that many of the agriculture areas are very depressed in Nevada and people are unable to sell their farms because of the water litigation problems.

David L. Howard, Lobbyist, Greater Reno-Sparks Chamber of Commerce, spoke in support of A.B. 380, and submitted a letter from the Truckee River Partnership, Ltd. (Exhibit G), also in support of A.B. 380.

Bjorn P. Selinder, Lobbyist, Churchill County, testified in support of A.B. 380, as presented.

Chairman Rhoads summoned Gordon DePaoli, Attorney, Sierra Pacific Power Company, to answer a question posed by Senator James. Senator James asked Mr. De Paoli what the effect would be with the elimination of the forfeiture provisions of Nevada Revised Statutes (NRS) 533.060, subsection 2.

Mr. DePaoli replied:

Senator James asked how this would affect the rest of the state. Mr. DePaoli stated he did not have enough background on the rest of the state, but suspected most of the surface water rights are older rights, as well.

Chairman Rhoads invited R. Michael Turnipseed, State Engineer, Division of Water Resources, State Department of Conservation and Natural Resources, to come forward for testimony. Senator James inquired of Mr. DePaoli since NRS 534.090, which includes forfeiture for non pre-statutory underground rights, is being left alone, if this will cause an incongruity in the law where an underground water right could be lost by forfeiture without intent, but cannot lose a surface water right. Mr. DePaoli stated that it would cause a difference between the two, but NRS 534.090 includes a process and procedure, in certain situations, when rights may be subject to forfeiture are notified by the State Water Engineer, and apply for an extension of time to avoid forfeiture.

Mr. Turnipseed testified that there are only a handful of surface water rights on the Humboldt and Carson rivers that post date 1913, which are not subject to the same relief considerations as groundwater rights. Senator James stated there was no relief to the groundwater laws until 1995, when a notice was required to cut off a water right to bring the water back into beneficial use. Mr. Turnipseed noted that there was always the provision to file an extension, even though most people did not know about it. After 1995 a notice must be given after 4 years of nonuse and then the person was given 1 year to cure the forfeiture or file for an extension. Senator James asked Mr. Turnipseed why this was not done before. Mr. Turnipseed replied that the cases out of the Carson-Truckee Irrigation District have gone to the Ninth Circuit Court of Appeals twice, which, in his opinion, ruled with greater statutory weight than in the Supreme Court Case involving In re Waters of Manse Springs. Mr. Turnipseed added that he is in full support of A.B. 380, as amended.

Peter G. Morros, Director, State Department of Conservation and Natural Resources, concurred with Mr. Turnipseed’s testimony, and also gave his full support of A.B. 380.

Edwin D. James, General Manager, Carson Water Subconservancy District, stated that agency is in support of the bill, and supportive of administering the program.

Debra Rae Drew, Executive Director, Nevada Landscape Association, spoke from prepared comments (Exhibit H) in support of A.B. 380.

William E. Isaeff, Lobbyist, City of Sparks, testified that he was also authorized to speak for Washoe County, and expressed support from both entities for passage of A.B. 380.

Norman W. Frey, Lobbyist, Newlands Water Protective Association, stated that he is one of the cases that has gone to the Ninth Circuit Court of Appeals, and supports A.B. 380 because it would end the long-standing litigation. Mr. Frey mentioned that he thought language was going to be added to see that operations and maintenance charges would be paid, and that is an important aspect for the remaining water rights owners. Mr. Frey added that he did not know why the Pyramid Lake Indian Tribe does not participate in the funding of A.B. 380.

Chairman Rhoads commented that if A.B. 380 passes, the Nevada Legislature’s Committee on Public Lands could monitor the measures outlined in the bill during the interim.

Leo D. Havener Jr., General Manager, Walker River Irrigation District, expressed his support of the bill and urged its passage. Chairman Rhoads asked Mr. Havener how long he has been with the Walker River Irrigation District. Mr. Havener replied that he has only been with them for 6 months, but believes this bill will be of assistance.

Norman Harry, Pyramid Lake Paiute Tribe, asserted that the tribe is committed to resolving the issues surrounding water rights, and supports the passage of A.B. 380.

Janet Carson, Lobbyist, Sierra Pacific Resources, pointed out that the Sierra Pacific Power Company is in full support of A.B. 380 because it is critical to the future water supply. Ms. Carson clarified that the communities of the Truckee Meadows as well as the Sierra Pacific Power Company, are backing the Newlands Water Fund, contingent on a funding source.

Chairman Rhoads closed the hearing on A.B. 380 and opened the hearing on A.B. 509.

Assemblyman John C. Carpenter, Elko County Assembly District No. 33, stated that this bill would allow the counties to direct a federal agency to remove wild horses humanely and in a reasonable amount of time as required by the Wild-Free Roaming Horses and Burros Act. Assemblyman Carpenter added that the state Division of Agriculture or the county could also be ordered by the court to remove the horses if the federal government is unable, and asserted that nothing in this bill is mandatory. Assemblyman Carpenter stated that the Great Basin Community College, as well as the prison system, are interested in a program to train some of these horses using the "horse whispering method."

Assemblyman Carpenter referred to a map (Exhibit I) that showed a specific area in Elko County, east of Wells, which is having the same problems of wild horse overcrowding that is consistent with the rest of the state. Assemblyman Carpenter stated that the permittee, Larry Schutte, of the land in this area, which is supposed to be a horse-free area, counted 170 head of wild horses. Assemblyman Carpenter submitted letters from Larry Schutte (Exhibit J) to the Bureau of Land Management (BLM) documenting his problem with the wild horses. Assemblyman Carpenter asserted that A.B. 509 would help to manage the appropriate numbers set by the BLM, and allow a cooperative agreement between the counties and the BLM.

Chairman Rhoads asked Assemblyman Carpenter when a property owner had a problem if they would start at the federal level first. Assemblyman Carpenter replied that the BLM would be notified and if they did not respond then the county commissioners would be notified and a court suit could be filed. Chairman Rhoads asked what would happen if the issue was not resolved. Assemblyman Carpenter replied that the federal marshals, according to the bill, could remove the horses, but he does not believe the federal marshals are equipped to carry out this function. Assemblyman Carpenter added that he thinks the county and the landowners, with the court, could come up with a solution. Chairman Rhoads asked if the counties would have to pay the costs. Assemblyman Carpenter stated that the counties would be responsible for paying the cost of a lawsuit. Chairman Rhoads inquired what would be done with the horses if a county had to collect them. Assemblyman Carpenter replied that the bill requires the county to make provisions to adopt out these horses.

Senator Jacobsen asked if the wild horses stayed in the area that Assemblyman Carpenter showed on Exhibit I. Assemblyman Carpenter replied that these horses are there year-round, which does not allow the range to recuperate. Senator Jacobsen asked if the horses could survive in an extreme winter. Assemblyman Carpenter explained that he thinks, in Nevada, many of the wild horses that are in overpopulated areas could die of starvation, because it has happened in the past.

Senator Carlton asked what would be a reasonable time for removal of the horses as outlined in A.B. 509. Assemblyman Carpenter replied 90 to 120 days would be a reasonable amount of time for the BLM to react.

Demar Dahl, Concerned Citizen, noted that A.B. 509 is an important step in trying to control the wild horse population. Mr. Dahl spoke of a young family whose livelihood is threatened on the land that Assemblyman Carpenter referred to in Exhibit I, because of the wild horse population being out of control. Mr. Dahl also spoke of a ranch that he lost, at a considerable financial loss, because the BLM would not remove the horses from his land. Mr. Dahl asserted that this problem with the BLM not taking responsibility for the wild horses is an inequity because the government is not doing what the private citizen is expected to do.

Senator Jacobsen asked Mr. Dahl what he thinks would be an appropriate number for the horses to be compatible with livestock in the area outlined in Exhibit I. Mr. Dahl replied that some of this area is considered horse free by the BLM, and the other areas are private land where horses should not be roaming as well and this is indicative of the whole state, not just this area.

Doug Busselman, Lobbyist, Nevada Farm Bureau, spoke in support of A.B. 509 because his agency believes there needs to be strong emphasis placed on managing wild horses and burros. Mr. Busselman added that the BLM and the United States Forest Service are responsible and authorized to manage wild horses and burros, and this measure will make them accountable for doing the job they are supposed to do. Mr. Busselman noted that the language on page 2, lines 4 through 9, says to him that the county has the option or choice to take a case to an appropriate federal court on behalf of a private landowner to make the federal agency do the job they are required to do.

Senator Carlton noted that she has a concern with the litigation that this bill will cause, and would like to know if there is any other way to solve this problem. Mr. Busselman replied that he believes that litigation should only be a last resort, and A.B. 509 will hopefully make the federal agencies respond to the wild horse problem prior to litigation.

Stephanie D. Licht, Lobbyist, Elko County Commissioners, went on record to support A.B. 509, and commented that this bill is not only about litigation but about people trying to survive by living off the land.

Chairman Rhoads spoke on how big the wild horse problem is and stated:

Robert E. Stewart, Public Information Specialist, Bureau of Land Management, United States Department of the Interior, spoke from prepared comments (Exhibit K) in opposition to A.B. 509.

Chairman Rhoads asked Mr. Stewart if he thought there were any future plans to adequately increase funding to the State of Nevada to control the wild horse and burro problem. Mr. Stewart replied that the funding allocation process does not allow for any dramatic increase from one year to the next.

Senator Coffin asked how many horses are currently in the adoption facilities. Mr. Stewart replied that Palomino Valley is not full and can hold between 2,500 and 3,000 horses with other facilities holding near capacity. Senator Coffin asked Mr. Stewart if the Lovelock facility is still in operation. Mr. Stewart replied that that was only a contract facility and was closed down as soon as possible because of the expense.

Senator Coffin pointed out that in the late 1980s he had been doing a lot of work in Central America and suggested that we ship the wild horses to those countries for work purposes. Mr. Stewart replied that the United States Congress is very protective of the wild horses and have been extremely hesitant to amend the Wild Free-Roaming Horses and Burros Act, and probably would not be open to exporting these horses.

Catherine Barcomb, Administrator, Commission for the Preservation of Wild Horses, State Department of Conservation and Natural Resources, testified in opposition to A.B. 509. Ms. Barcomb stated that if this bill is passed it could result in abuses and violations of federal and state laws. Ms. Barcomb noted that the Commission for the Preservation of Wild Horses is working with the federal government, with the support of Governor Kenny Guinn, for the establishment of a private foundation to assist in the adoption of these animals. Ms. Barcomb added that this would include a professional nationwide marketing program, and take control of the adoption process from the government entities that may have too much red tape.

Senator Jacobsen asked Ms. Barcomb if there is enough money in the wild horse trust fund to buy a ranch to house these animals, or if Senator Coffin’s idea is feasible. Ms. Barcomb replied that it is currently against federal law to export these animals and added that there is an adoption demand now in the United States, but the government is probably not the right entity to market these animals. Ms. Barcomb pointed out that the idea of buying a ranch is not a permanent solution to the problem.

Senator Shaffer commended Ms. Barcomb for the wild horse plan, and added that he thought its solutions were thought out very well and that he would have no problem supporting a program like hers.

Peter J. Goicoechea, Chairman, Board of Commissioners, Eureka County, spoke in favor of A.B. 509, stating his concern is how the counties are going to be able to fund the litigation, if necessary.

Lydia Hammack, President, Virginia Range Wildlife Protection Association, spoke from prepared comments (Exhibit L), in opposition to A.B. 509.

Senator Jacobsen asked Ms. Hammack if she has any solutions or if she thinks we should continue in the same direction. Ms. Hammack replied that Ms. Barcomb’s wild horse plan has the solutions that are needed.

Olivia Fiamengo, Concerned Citizen, spoke in opposition to A.B. 509 and referred to copies of the Wild and Free-Roaming Horses and Burros Act (Exhibit M), as part of her testimony in favor of the wild horses.

Geraldine H. Olson, Concerned Citizen, submitted her comments (Exhibit N), in opposition to A.B. 509.

Roberta J. Royle, Lobbyist, spoke in opposition to A.B. 509 from prepared comments (Exhibit O).

Betty L. Kelly, M.D., Lobbyist, testified in opposition to A.B. 509, and commented that she thinks this bill is a slaughter bill and would promote private enterprise and litigation.

Senator Jacobsen asked Dr. Kelly if she has a solution to the problem. Dr. Kelly stated she has two solutions, one being a few members of the committee not be voted in for another term, and the other being more appropriations for BLM so that agency could do its job.

Mr. Stewart clarified that the Palomino Valley corrals reach capacity at 1800 and is currently half full with more coming in every day.

Written testimony from Dawn Y. Lappin, Director, Wild Horse Organized Assistance (Exhibit P), was entered for the record.

Chairman Rhoads closed the hearing on A.B. 509 and opened the hearing on Assembly Joint Resolution (A.J.R.) 2.

Assemblyman Tom Collins, Clark County Assembly District No. 1, testified that this resolution is a companion to A.B. 509, and used a packet of information (Exhibit Q. Original is on file in the Research Library.) to support A.J.R. 2. Assemblyman Collins explained that A.J.R. 2, if passed, would direct the federal government to manage the level of wild horses as they are supposed to do. Assemblyman Collins remarked that United States Congressman Jim Gibbons currently has a bill draft, which addresses the wild horse problems, but does not know if it has been introduced yet. Assemblyman Collins added that this resolution is not trying to make wild horses extinct, and believes the population is greater than is needed.

Assemblyman Carpenter stated that he is in complete support of A.J.R. 2, and believes it does address the problems associated with the overpopulation of wild horses.

Ms. Licht went on record in support of A.J.R. 2.

Mr. Busselman called attention to page 2, line 30, of A.J.R. 2, and stated this language reflects the position of the Nevada Farm Bureau and supports the adoption program. Mr. Busselman added that they do have a concern with the inadequacy of the adoption program, as currently conducted. Mr. Busselman proposed that the unadoptable horses be sold and the funds from the sales be used to help the remaining horses.

Mike L. Baughman, Lobbyist, Lincoln and Lander counties, testified in support of A.J.R. 2, and added that they do not think this is about promoting private enterprise but about promoting rangeland ecology and protecting private property rights.

Ms. Barcomb stated that A.J.R. 2 and A.B. 509 are both in opposition to federal law and state law does not override federal law. Ms. Barcomb added that an attorney general’s study of A.B. 509 indicated the counties have no authority to gather wild horses. Ms. Barcomb stated they were originally in support of this resolution, but with the addition of a sale authority they are now in opposition.

Dr. Kelly spoke in opposition to A.J.R. 2, and believes that it is a waste of time.

Freeman K. Johnson, Assistant Director, State Department of Conservation and Natural Resources, stated that he knows there is an excess of animals on the range, but to promote a law that is in direct violation of federal law is not in the best interest of the state. Mr. Johnson added that they could support this resolution if the sale provision is removed.

Chairman Rhoads called attention to the fact that current programs cannot continue because of the inadequacy. Chairman Rhoads stated that even though this may be in conflict with federal law it may cause some action from the United States Congress. Mr. Freeman acknowledged that A.J.R. 2 and A.B. 509 would raise the visibility of the issue, but would probably be raised in a court of law, which would be counterproductive. Chairman Rhoads commented that litigation might be the only choice available on this issue.

With no further business before the committee, the meeting was adjourned at 5:03 p.m.

RESPECTFULLY SUBMITTED:

Scott Corbett,

Committee Secretary

APPROVED BY:

Senator Dean A. Rhoads, Chairman

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