MINUTES OF THE meeting
of the
ASSEMBLY Committee on Natural Resources, Agriculture, and Mining
Seventy-First Session
May 2, 2001
The Committee on Natural Resources, Agriculture, and Miningwas called to order at 1:30 p.m., on Wednesday, May 2, 2001. Chairman Marcia de Braga presided in Room 3161 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:
Mrs. Marcia de Braga, Chairman
Mr. Douglas Bache
Mr. David Brown
Mr. John Carpenter
Mr. Jerry Claborn
Mr. David Humke
Mr. John J. Lee
Mr. John Marvel
Mr. Harry Mortenson
Mr. Roy Neighbors
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Mr. Tom Collins, Vice Chairman
STAFF MEMBERS PRESENT:
Linda Eissmann, Committee Policy Analyst
Michael Stewart, Senior Research Analyst
June Rigsby, Committee Secretary
OTHERS PRESENT:
Hugh Ricci, P.E., State Engineer, Nevada Division of Water Resources
Doug Busselman, Vice President, Nevada Farm Bureau Federation
Julian Smith, Attorney, Carson City, Nevada
David Holmgren, Rawhide Ranch, Mineral County, Nevada
Joe Guild, President, Nevada Cattlemen’s Association
Don Richards, Rancher, Winnemucca, Nevada
Alan Coyner, Administrator Geologist, Nevada Commission on Mineral Resources
Janine Hansen, President, Nevada Eagle Forum
Stephanie Licht, Legislative Consultant, Elko County, Nevada
Jackie Holmgren, Rawhide Ranch, Mineral County, Nevada
Roll was called, and the work session on S.B. 159 commenced.
Senate Bill 159: Makes various changes concerning protectible interests in domestic water wells and appropriation of ground water. (BDR 48-309)
Linda Eissmann, Committee Policy Analyst, directed the committee’s attention to a work session document (Exhibit C). It contained background information for S.B 159, S.B. 161, S.B. 532, and S.J. R. 2.
Ms. Eissmann explained S.B. 159 was the result of the Study of Domestic and Municipal Water Wells undertaken during the 1999-2000 interim session. The intent of the bill was to extend protectible interests to all of the well owners in Nevada. Previously, protectible interests had been offered only in counties with populations less than 400,000 residents. As such, Clark County had been excluded.
In response to Chairman de Braga, Ms. Eissmann explained the Senate had amended S.B. 159 to provide financial assistance of at least 50 percent for well owners establishing a connection with a municipal water supply. That was reflected in the first reprint of the bill.
ASSEMBLYMAN MARVEL MOVED TO DO PASS S.B. 159.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
The work session continued with a discussion of S.B. 161.
Senate Bill 161: Requires applicant for permit to operate certain water systems to provide documentation that applicant possesses sufficient water rights to operate system. (BDR 40-308)
Ms. Eissmann directed the committee to Exhibit C and stated S.B. 161 had also resulted from the interim study on domestic and municipal water wells. No opposition was heard during the Senate hearings, and the bill passed without amendment.
Ms. Eissmann explained S.B. 161 would require that a permit to operate a privately owned water system would not be approved unless the applicant furnished documentation issued by the State Engineer indicating the applicant held sufficient water rights to operate the system.
Assemblyman Brown asked if the bill addressed expansion of an existing water system or the creation of a new municipal system. After brief consultation with Hugh Ricci, State Engineer, Ms. Eissmann declared it applied to either situation; however, the recommendation from the interim study had specifically focused on expansion of water systems.
Chairman de Braga requested clarification on the source of the water supply addressed by the bill. Ms. Eissmann replied the bill addressed public water systems with 15 connections or with service to at least 25 people. Chairman de Braga added the implied source was ground water.
Assemblyman Brown posed a question about an appeal process in a situation in which an applicant was denied a permit because of inadequate water rights. Ms. Eissmann stated that was a procedure of the Nevada Health Division. Based on her recollection of testimony in the technical advisory committee, it was her understanding the Health Division confirmed water rights with the State Engineer; however, the concern was there was no statutory requirement to ensure the continuation of that practice.
Assemblyman Brown queried if sufficient water rights were equivalent to sufficient quantities. Hugh Ricci, State Engineer with the Division of Water Resources, offered to clarify. When his agency issued a water right, it did not necessarily guarantee water would be found. The Health Division then approved the physical delivery system of the water. Assemblyman Brown summarized by saying quantity was confirmed by the state rather than by the claim of the applicant. Mr. Ricci concurred.
Chairman de Braga asked if, in the review of applications for water rights, the decision was based on the current availability of water. She voiced concern over the broad language of the bill and the lack of specific timeframes. Mr. Ricci agreed with her summary and explained the steps for processing an application. The Health Division would have no way to know if there were water rights to back up the applicant’s request. Because of that, S.B. 161 was drafted to add the requirement that the Division of Water Resources would have to pass judgment on the sufficiency of water rights prior to approval.
Assemblyman Mortenson requested clarification of the situation where an existing municipal water company applied for expansion. How was the determination made regarding the availability of sufficient water rights? Mr. Ricci explained when a permit was issued for a water right, it allowed for the applicant to develop a system up to that amount of water. In instances of proposed expansion, his agency calculated the amount of water previously used and then determined if the unused portion was sufficient for the additional customers.
In response to Assemblyman Mortenson, Mr. Ricci rephrased and stated, when an application was received, a permit was issued for a certain volume of water. If the water customers used that total amount and there was no unused portion, additional water rights would have to be awarded to allow any expansion of the system.
Assemblyman Neighbors voiced his confusion over the need for S.B. 161. In his judgment, the Division of Water Resources already had the authority needed to do the job. Mr. Ricci explained he had assumed the Health Division had requested the bill to ensure the existing process would be guaranteed to continue. It was a means to formalize and legalize a current practice.
Assemblyman Neighbors illustrated a question with the example of a ranch with water rights. If a subdivision was proposed and the new homes did not fully utilize the water rights, would the rancher be threatened with the loss of the unused water rights? Mr. Ricci replied that situation occurred frequently, especially with surface water in Reno. If another applicant came along and demonstrated a need for water rights, the rights were transferred to the new applicant. The new applicant, in turn, would be subject to the same conditions of use and transfer.
Chairman de Braga added that municipalities had the ability to hold onto the unused water for future development. On a lighter note, Assemblyman Marvel suggested that perhaps deer tags should be traded for water rights.
Assemblyman Claborn asked if the bill applied to domestic community wells. Mr. Ricci was unsure of the statute. In his judgment, it referred to a privately owned public water system that served at least 15 service connections or at least 25 residents. The subdivisions of three or four houses in Las Vegas would not be covered by the proposed legislation.
Assemblyman Brown asked, if in the process of applying for a water permit, was there coordination between the State Board of Health and the State Engineer. Mr. Ricci explained the applicant for water rights would first approach the Division of Water Resources. Any coordination happened when the applicant next approached the Health Division to apply for their approval. The processes were often concurrent. Mr. Ricci confirmed that S.B. 161 codified an existing practice.
ASSEMBLYMAN MARVEL MOVED TO DO PASS S.B. 161.
ASSEMBLYMAN HUMKE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
The hearing was opened in S.B. 532.
Senate Bill 532: Revises provisions governing fencing of certain land that is used to graze or herd livestock. (BDR 50-1168)
Doug Busselman, Executive Vice President of the Nevada Farm Bureau Federation, read from a prepared statement (Exhibit D) in support of S.B. 532. The intent of the bill was to address the growing concern over the inappropriate use of the state’s open range law. Mr. Busselman stated the bill would clarify NRS 569 to ensure if a livestock owner used private lands to graze and, if he did not possess a public lands grazing permit for adjoining lands, he would be required to construct a fence to contain his grazing livestock.
To the surprise of Chairman de Braga and some committee members, Mr. Busselman stated S.B. 532 passed the Senate, and there were no objections during the committee hearing or on the floor of the Senate.
Assemblyman Lee requested clarification on the distinction between the owner of the animals and the manager (e.g., sheepherder) and which would be responsible for building the fence. Mr. Busselman replied an employee overseeing the location of sheep would not qualify that person as a manager. Assemblyman Lee voiced concern over the broad language in Section 1, which stated “If an owner or a manager of livestock.”
Julian Smith, an Attorney and Elko County rancher, commenced testimony in opposition to S.B. 532. He explained his ranching operation had 21,000 animal units of grazing on public land in Elko. One of the fields was 30,000 acres, and of that, 20,000 acres was federally owned. There were several sections (i.e., 640 acres) in that field that were divided into ten-acre parcels. Under S.B. 532, he would not have to fence the outside perimeter; however, he would have to fence the interior areas because they were not adjacent to public land. It would be economically unfeasible for him to fence the portions of land that would be required by the bill. Exacerbating the situation was the fact there were several hundred private landowners included in that area, and any one of those owners could require him to fence the property in the middle. Additionally, he would need the permission of the private property owners to come onto their property to construct the fence.
Mr. Smith viewed the bill as designed for those individuals who did not have permits to graze. S.B. 532 would essentially put him out of business, and, in his judgment, the language of bill was not consistent with the existing NRS policy. The laws were already in place to handle the non-permitted privately owned cattle. The Bureau of Land Management should enforce existing statute.
Mr. Smith emphasized he had not testified before the Senate because he was unaware of S.B. 532. As an attorney he voiced concern over the open range situation where cattle and horses were hit by moving vehicles on the highway. The existing law stated the owner of the animal could not be sued for damages by the driver of the vehicle. Mr. Smith was uncertain if the proposed bill would change that, thereby inviting complicated litigation. He concluded by saying the cost of a fence would be thousands of dollars per mile of fence, and that was not feasible.
Assemblyman Carpenter concurred with many of the points made by the witness. He declared S.B. 532 to be unworkable. According to Senator Rhoads, there had been attempts to amend the bill in the Senate; however, each proposal invited a new set of concerns. Assemblyman Carpenter was uncertain how the bill could be amended to make it feasible.
Julian Smith responded and stated, even if the word “adjacent” was deleted, there would still be the issues of liability and the open range laws. The existing law protected the animal and the owner of the animal.
Assemblyman Claborn asked if S.B. 532 had any redeeming qualities. Julian Smith stated it was a situation of “don’t fix it if it’s not broken.” He viewed the bill as doing more harm than good, and it would interfere and undo a multitude of other laws. It would be an invitation to litigation.
David Holmgren, owner of the Rawhide Ranch in Mineral County, read a prepared statement from Cliven Bundy (Exhibit I). In Mr. Bundy’s words, S.B. 532 was very confusing, and it threatened the Nevada Open Range Law and “fencing-out laws.” In his view, the owner of cultivated land had an obligation to protect his investment by complying with NRS 569.450 legal fence laws. As such, there was no need for S.B. 532.
Mr. Holmgren offered his own comments on the proposed legislation and distributed a hand-written copy of proposed amendments (Exhibit G). In his view the bill was not workable and would hurt producers. The open range doctrine had protected everyone through shared accountability among all parties. He agreed there would be a sharp increase in litigation, especially in cases of vehicles hitting animals on the open range. Despite any law, there were still many motorists who did not understand the reaction of cattle and horses when startled by moving vehicles.
Chairman de Braga asked the witness his opinion of the intent of S.B. 532. Mr. Holmgren had talked with the sponsor of the bill who stated the problem was one of a large livestock owner overgrazing and taking advantage of a smaller operation. It appeared to be also related to gates being left open and fences being cut. Mr. Holmgren did not view those problems as widespread.
Chairman de Braga asked if there had been problems with ranchers running cattle illegally. Mr. Holmgren stated if a grazing permit was cancelled by the federal government, S.B. 532 would protect the federal government. The language of the bill referred to a “privilege” not a “right,” and that wording caused Mr. Holmgren great concern. The concept of property rights had been ignored, in his judgment.
Chairman de Braga asked if, in the situation where the person did not have a legal permit (and therefore a right) to graze, the bill would help address that problem. Mr. Holmgren agreed S.B. 532 would address that situation; however, he recommended the language be amended (Exhibit G). Chairman de Braga suggested to the witness his amendments be shared with Mr. Busselman.
Joe Guild, President of the Nevada Cattlemen’s Association, commenced testimony in opposition to S.B. 532. He was in agreement with the testimony of Julian Smith, and Mr. Guild stated the bill caused more problems than it solved. He was aware of the situation involving Mr. Richards, a Winnemucca rancher that gave rise to the bill.
Mr. Guild called attention to the railroad-leased lands that traversed northeastern Nevada and, in his judgment that was the situation that caused the problem. What were formerly railroad-leased lands had become private lands or what had been private lands had been subdivided (e.g., 10-acre parcels as described by Julian Smith). Under S.B. 532, the rancher who grazed cattle on land adjacent to such a 10-acre parcel would have to fence his cattle out of that 10-acre parcel. According to Mr. Guild, the owner of the 10-acre parcel was already protected against trespass under existing law. Remedies included a writ of attachment that allowed the owner of the 10-acre parcel to go to court to legally attach the cattle trespassing on his land. Other remedies were injunction relief and double damages after the first offense.
Mr. Guild summarized by stating protections were in place for the owner of private land that was adjacent to grazing areas. A new law was not needed. He added the removal of the words “adjoining the private land” in line 8 would not solve the problem.
Chairman de Braga commented the bill was confusing to follow. She cited the example of Julian Smith who had a permit to graze on public land but who also owned private land. As such, the bill would still impact him. The bill referred to “the owner or manager of the livestock is not the holder of a license, lease, or permit to graze.”
Mr. Guild concurred and added Mr. Richard’s upcoming testimony would help to clarify those points. The situation illustrated by Chairman de Braga was the exact situation that faced Mr. Richards. He owned private land adjacent to public lands for which he had a grazing permit. Within his private land was a small parcel with a water source (i.e., a well). An individual dumped hundreds of head of cattle on the small parcel. Those cattle dispersed and trespassed onto Mr. Richards’ land. The owner of the cattle had no license, lease, or permit for anything beyond the immediate 10-acre parcel. The loss to Mr. Richards was devastating.
Mr. Guild concluded by saying, under NRS 568.300, it was unlawful for any person to herd or graze livestock upon the land of others without permission. The remedies were already outlined in statute.
Assemblyman Claborn asked if there was any portion of S.B. 532 worth salvaging. Mr. Guild replied, despite his multiple reviews of the language, he could see no way to amend and salvage the bill.
Don Richards, a Winnemucca rancher, distributed a packet of news articles (Exhibit E) and commenced testimony in opposition to S.B. 532. He described himself as a rancher who had been put out of business by squatters on land that was rightfully his to use. The problem originated in 1982 when illegal tramp cattlemen dumped more than 3,000 head of cattle in his grazing area. The water rights were endangered, and the terrain was overused and damaged.
Mr. Richards presented an historical overview of the evolution of the rangeland. Many decades ago, property rights were often established by squatting. In 1925, the state of Nevada passed the Stock Watering Act. The intent of the law was to recognize the rancher with preemptory claim on land and water and to award him the right to occupy federal lands.
In his case, the lands to which Mr. Richards had alluded had been federal land that had become private land. In the evolution of the range, there was the establishment of rights. The tramp cattlemen and sheep owners had historically overrun those areas, thereby causing the long-running rangeland battles. There was a new breed of tramp cattle grazers who had no legal water or grazing rights.
Mr. Richards described a legal entanglement where he attempted to protect his rights, and he lost at the Supreme Court. Mr. Richards declared the system had failed him. He called the committee’s attention to a map in Exhibit E that illustrated the area with his allotment of land that was subsequently damaged by the 3,000 illegal head of cattle. The cows were diseased forcing Mr. Richards to pull his cattle out of the area.
Mr. Richards summarized by saying it was cheaper for the tramp cattlemen to trespass than it was for them to apply for legal permits. The Bureau of Land Management (BLM) did not have the resources to check the range for illegal grazing and seize the cattle. Under the Open Range Law, customary range rights were established, thereby granting authority to run cattle in an area. Mr. Richards declared his ranch had that authority.
Chairman de Braga requested clarification on the enforcement of a Pershing County ordinance. Mr. Richards described the ordinance as requiring enclosure of the area, and violations involved penalties and the impounding of the cattle. The sheriff could hire range riders for enforcement purposes.
Chairman de Braga asked if the BLM did any checking in his area. Mr. Richards replied the area in question was all deeded. The tramp grazing put him out of business. The intent of S.B 532 was not to penalize the legitimate operator. He added he did not view it as related to the Open Range Law. Mr. Richards described some of the grazing areas as adjacent to homes. The straying cattle were destroying landscaping and gardens. Impounding cattle in a residential trespass situation would be almost impossible.
Mr. Richards suggested several changes to the language of S.B. 532. They included deletion of the language in the first paragraph, “adjoining the private land.” He added it would be necessary to prove tenure for the person who had a legitimate right to be there even if he did not possess a permit. In his case, Mr. Richards stated he owned land, and he leased land. He had tenure, vested water rights, adjudicated water rights, and permitted water rights. As such, he felt he had adequate protection; however, a cattleman with 40 acres in the area filed for stock water for 250 head of cattle. Despite Mr. Richards’ objections at a hearing, he lost the case.
Mr. Richards called attention to S.B. 96 of the Sixty-Eighth Session that allowed a cattleman to lease a well to a third party. That put him out of business. He summarized by saying the intent of S.B. 532 was not to penalize the rancher. He read a draft of his proposed amendment. “If an owner or manager of livestock grazes or herds any livestock owned or managed by him on private land, that is located outside a city or town, and, if at the time the livestock are grazed or herded on the private land, the owner or the manager of the livestock is not a holder of a license, lease, or permit to graze or herd the livestock on any public land or (delete adjoining land language here) can show proof under the Open Range Law that they or their predecessors, in fact, have developed the customary range rights which include the vested, adjudicated or prior water rights the owner…” In summary, he stated it would grant the legitimate cattleman some tenure, and the new cattle grazer would have no water rights. Mr. Richards declared that was the leverage he needed when he lost in court.
Chairman de Braga requested a copy of his proposed amendment; however, it was not submitted to the committee secretary.
The hearing on S.B. 532 was closed and the hearing on S.J.R. 2 was opened.
Senate Joint Resolution 2: Expresses opposition to designation of national monument by President of United States without obtaining approval of each state and local government in which national monument is located. (BDR R-723)
Michael Stewart, Senior Research Analyst, Legislative Counsel Bureau, commenced testimony on behalf of Senator Rhoads. Mr. Stewart explained that during the Clinton administration, the Antiquities Act of 1906 was implemented 21 times to declare national monuments. Several of those designations received significant media attention, followed by intense debate among state and local officials, environmental organizations, industry, Native American tribes, and government agencies.
He explained the state of Arizona had passed a resolution similar to S.J.R. 2. During the interim, members of the Committee on Public Lands expressed concern about monument designations being made without consultation with the impacted state. The outcome of those committee discussions was S.J.R. 2. Unilateral designations interfered with the state’s ability to manage its water resources and denied the opportunity for beneficial partnerships between the state and federal government.
Assemblyman Claborn asked if the resolution was related to the last minute actions of President Clinton during his final hours in office. Mr. Stewart explained the recommendation to draft the resolution was proposed in October, thereby suggesting it was not part of the final executive orders.
Alan Coyner, Administrator of the Nevada Division of Minerals, distributed a prepared statement (Exhibit F) and commenced testimony on S.J.R. 2. He concurred with Mr. Stewart that, during the Clinton Administration, there had been 21 national monuments designated, involving 6 million acres of land. That presidential power was granted by Congress in 1906, and in recent years, it had been used to stop oil drilling and mineral exploration. Some of those designations had merit, while others did not. Critics charged the Antiquities Act had been misused and that other avenues should have been explored.
Mr. Coyner stated Nevada currently had no national monuments; however, there were two in the past, Death Valley and the Lehman Caves. Both were absorbed into national parks. In his judgment, the Black Rock Desert area had the potential to be vulnerable to monument designation actions. With 87 percent of Nevada’s land area managed by federal land agencies, Mr. Coyner stated that failure to consult with the impacted state (i.e., Nevada) would not promote good partnerships in the management of state land.
Janine Hansen, President of Nevada Eagle Forum, distributed two exhibits, a copy of a national petition and a copy of a newspaper editorial (Exhibit H). The national petition was promoted by the Western Caucus for the United States Congress, chaired by Congressman Chris Cannon. The petition asserted that President Clinton exceeded his authority under the Antiquities Act.
On the subject of the Black Rock Desert, Ms. Hansen described it to be one of great concern. Sixteen counties that had formally disapproved of events there had been totally ignored. The residents of the state should have the right to voice opinions about the imposition of national monuments in areas where they were not welcomed. Nevada was not a state, in her judgment. It was, in fact, a federal territory.
Stephanie Licht, representing Elko County, asked to go on the record as in support of S.J.R. 2. She concurred with Mr. Coyner’s point that the imposition of monument status could alter the economic opportunities of impacted areas.
David Holmgren, owner of the Rawhide Ranch in Mineral County, commenced testimony in support of S.J.R. 2. He called the committee’s attention to page 2, line 13 of the bill. He asked the committee to consider inserting the language “pursuant to Article 1, Section 8, Clause 17 of the U.S. Constitution” immediately following the words “is located.” It would address the size of the land areas and the fact they had to be legislatively approved in the state as well as purchased from the state.
Mr. Holmgren concluded by expressing his thanks to the committee for their support and passage of A.B. 391. He added if the reference to monuments on page 3 had been deleted in A.B. 391, which would have addressed the issue covered by S.J.R. 2.
Jackie Holmgren, owner of the Rawhide Ranch in Mineral County, made a one- line statement in support of S.J.R. 2.
Chairman de Braga closed the hearing on S.J.R. 2 and called for a motion.
ASSEMBLYMAN HUMKE MOVED TO DO PASS S.J.R. 2.
ASSEMBLYMAN NEIGHBORS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
The meeting was adjourned at 3:18 p.m.
RESPECTFULLY SUBMITTED:
June Rigsby
Committee Secretary
APPROVED BY:
Assemblywoman Marcia de Braga, Chairman
DATE: