MINUTES OF THE meeting
of the
ASSEMBLY Committee on Natural Resources, Agriculture, and Mining
Seventy-First Session
May 14, 2001
The Committee on Natural Resources, Agriculture, and Miningwas called to order at 1:30 p.m., on Monday, May 14, 2001. Chairman Marcia de Braga presided in Room 3142 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. Tom Collins, Vice Chairman
Mr. David Brown
Mr. John Carpenter
Mr. Jerry Claborn
Mr. David Humke
Mr. John Marvel
Mr. Harry Mortenson
Mr. Roy Neighbors
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Mr. Douglas Bache
Mr. John J. Lee
STAFF MEMBERS PRESENT:
Linda Eissmann, Committee Policy Analyst
June Rigsby, Committee Secretary
OTHERS PRESENT:
Daryl Capurro, Nevada Motor Transport Association
Bryan Gresh, The Gresh Group, Las Vegas
Gale Fraser, General Manager, Clark County Regional Flood Control District
Verne Rosse, Nevada Division of Environmental Protection
Sasha Thurman, Associated General Contractors
Pam Wilcox, Nevada Division of State Lands
Gemma Waldron, Assistant District Attorney, Washoe County
Susan Asher, Nevada Humane Society
Carole Vilardo, Nevada Taxpayers’ Association
Vice Chairman Collins declared the meeting would convene as a subcommittee pending the arrival of additional members of the Committee on Natural Resources, Agriculture, and Mining. He opened the hearing on S.B. 267.
Senate Bill 267: Makes various changes regarding flood control and local drainage. (BDR 48-1117)
Bryan Gresh, representing the Gresh Group in Las Vegas and the Clark County Regional Flood Control District, commenced testimony in support of S.B. 267. Mr. Gresh emphasized there was no fiscal note attached to the bill. An agreement had been reached with the Nevada Department of Transportation (NDOT), and a policy adjustment made a legislative fix no longer necessary. He explained a note would be forthcoming from the Ways and Means Committee to document that action.
Gale Fraser, General Manager of the Clark County Regional Flood Control District, read a prepared statement (no handout) in support of S.B. 267. The bill reflected a consensus among a variety of parties with a stake in flood control. The flood-proofing portion, Section 1, allowed for the elevation or relocation of structures to protect them from flooding. The local drainage portion of the bill, Section 3, enabled the Flood Control District to assist with the funding of flood control improvements that were not part of the regional master plan. As such, the local drainage facilities would protect a localized area as well as take advantage of the larger, regional flood control system. No state funds would be used in the implementation of the bill. The language that would have required state agencies to comply with the master plan had been deleted after a series of meetings with NDOT.
Assemblyman Marvel asked about progress on the flood control efforts. Mr. Fraser described it as one-third completed. There were 57 detention basins and more than 260 miles of channels constructed. In terms of expenditures, he estimated remaining costs to be $1 billion over the next 25 years, making the total $1.7 billion.
Vice Chairman Collins requested clarification of changes to the bill under Section 1, subsection 6, page 2, line 12. Mr. Fraser replied that language specified if the local governments unanimously passed the amendment to the master plan, no other hearings would be required. In response to Vice Chairman Collins, Mr. Fraser summarized by stating, if required, two public hearings would be conducted. The first would be with the Regional Flood Control District Board of Directors and the second with the entity where the amendment was proposed.
Assemblyman Claborn asked if the flood zones were federally registered and, if so, why the local governments were involved. Mr. Fraser explained the flood insurance rate maps were issued by the Federal Emergency Management Agency (FEMA). The local governments, in turn, administered the federal funds and maps. Since the creation of the Flood Control District in Clark County, more than 25 square miles had been removed from the flood zones.
Assemblyman Claborn remarked he had continued to pay flood insurance premiums on his personal property after it was no longer required. He asked if there were methods to notify homeowners of changes in the insurance requirement. Mr. Fraser replied postcard mailings and notices in the newspaper were often utilized to notify the public.
Vice Chairman Collins called attention to the language of the amendment on page 3 and asked if it altered the eminent domain process. Mr. Fraser replied that Section 6 provided authority to implement flood-proofing or a relocation program of private or public structures. If the construction of a regional flood control facility was judged to be too costly, elevation or relocation of the structure would be options. He emphasized that ideally it would involve a willing buyer and a willing seller, eliminating the need to exercise the powers of eminent domain. Paragraph 7 dealt with local drainage in which the Flood Control District would assist with laterals or stubs networked to the regional facility.
Vice Chairman Collins, seeing the presence of a quorum, asked for the roll to be called. The hearing on S.B. 267 resumed.
Vice Chairman Collins voiced some concerns over the language and asked if the Flood Control District was designed to protect existing property and people or whether economic prudence was a higher priority. Mr. Fraser declared the full intention to be the protection of existing residences. The most economical means to accomplish that would be considered. The construction of expensive retention basins would be in areas that had a higher density of homes and structures. In areas of scattered buildings, relocation of structures was often the better fix.
Vice Chairman Collins posed a question about safety issues and culverts. Mr. Fraser replied a citizens’ advisory committee had studied that problem and determined metal grates were not the answer. Public education and posted warnings at the sites were the preferred means to deal with the issue.
Assemblyman Claborn commented on the value of the detention basins during a July flood last year. He viewed the work of the Flood Control District with favor.
Carol Vilardo, representing the Nevada Taxpayers Association, commenced testimony in support of S.B. 267. The bill, as originally written, had caused some concern to her and to the Southern Nevada Homebuilders Association. Since 1985, when the Flood Control District was created, there had been a good working relationship among the groups. The amended language of the bill illustrated that harmony. She concluded by saying the Flood Control District was one of the most efficient and responsive agencies she encountered in her professional duties. Any amendments were subject to public hearing, and the witness applauded that policy.
Assemblyman Marvel asked if any of the water captured in the retention basins was reinjected into the ground. Mr. Fraser offered to respond and stated, with an annual rainfall of 4 inches, it was not feasible. Additionally, the intensity of fast-moving desert storms precluded the option of capturing and reinjecting the water.
Assemblyman Neighbors made reference to a project in the foothills near Pahrump and asked the witness for clarification. Mr. Fraser stated it was part of the Corps of Engineers Tropicana-Flamingo wash system and was called the Blue Diamond detention basin. It handled 13,000 cubic feet of water per second and reduced the velocity of water flow to 260 cubic feet per second. As such, a major flooding source was eliminated.
Vice Chairman Collins closed the hearing on S.B. 267 and opened the hearing on S.B. 327.
Senate Bill 327: Revises provisions relating to certain hazardous materials. (BDR 40-164)
Daryl Capurro, representing the Nevada Motor Transport Association, commenced testimony in support of S.B. 327. He referred to it as a clean-up bill designed to address unfinished business from the last legislative session. Major changes to the hazardous materials laws were deficient in regard to the alliance program and references to public law.
Mr. Capurro explained there was dual authority with regard to the handling of hazardous materials in Nevada. The Nevada Division of Environmental Protection (NDEP) issued a hazardous waste permit number. The actual enforcement activity was conducted by the Nevada Highway Patrol. He called the committee’s attention to language regarding the safety of drivers and stated it was a duplicative effort for both state agencies to have responsibility in that area. Mr. Capurro concluded his testimony by saying S.B. 327 clarified the existing law.
Vice Chairman Collins requested clarification on the replacement of the NDEP with the Highway Patrol on certain enforcement issues. Mr. Capurro explained it was needed to eliminate dual authority as established by earlier legislation. It related strictly to the hazardous waste element of hazardous materials; however, it did not include nuclear waste. All radioactive waste, both high level and low level, was treated under separate statute.
Assemblyman Claborn posed a question regarding railroad transportation of hazardous materials and the role of the Highway Patrol at railroad crossings. Mr. Capurro replied it was under the authority of the inspectors of the Public Service Commission. Assemblyman Claborn stated the Highway Patrol appeared to be notified. Mr. Capurro clarified that issue was covered in another bill, which had proposed moving the railroad inspectors to the Highway Patrol.
Verne Rosse, representing the Nevada Division of Environmental Protection, stated he had nothing to add to the testimony on S.B. 327.
Sasha Thurman, representing the Associated General Contractors, asked to go on record in support of S.B. 327.
Vice Chairman Collins closed the hearing on S.B. 327 and opened the hearing on S.B. 358.
Senate Bill 358: Revises provisions relating to lease of state land for residential purposes. (BDR 26-396)
Pam Wilcox, Administrator, Nevada Division of State Lands, commenced testimony in support of S.B. 358. The intent of the bill was to create a means for handling the lease of state land to state employees for residential purposes. Nevada State Parks and the Nevada State Wildlife Division both had residences throughout the state for use by employees working in the field.
Ms. Wilcox reviewed each section of the bill. It authorized the lease of property for less than fair market value to an employee who was required to live on-site as a condition of employment. Each lease would be individually negotiated based on the unique working situations. An application fee could be waived in the case of a state employee who was required to reside on-site.
In response to Vice Chairman Collins, Ms. Wilcox explained the ranger residences in some areas were very old, and the determination of the rent had to be based on a consideration of multiple factors, including the condition of the dwelling and the duties of the employee.
Assemblyman Humke called attention to subsection 3 of Section 1 that allowed for a fee waiver. He asked if a credit report was compiled on state employees applying for residential units. Ms. Wilcox replied there were no credit reports done on applications for use of state lands. Assemblyman Humke asked if the employee was forced out of his job and had a lease, would there be consequences. Ms. Wilcox judged that situation to be highly unlikely. The lease would be terminated when the job was terminated. If an employee fell behind in rent payments, Ms. Wilcox was unsure of how the rent would be collected. She could recall of no situation such as that.
Vice Chairman Collins asked for an estimate of farming and grazing activities associated with the state lands. Ms. Wilcox stated there were fewer than one dozen farming and grazing leases in Nevada. An example was the Washoe Lake State Park. The lease worked into the management plan for the property, and it was never leased for the sole purpose of making money. The Virginia Range area was private land; however, the horses there were managed by the state of Nevada.
Vice Chairman Collins closed the hearing on S.B. 358 and opened the hearing on S.B. 62. Chairman de Braga returned to the meeting.
Chairman de Braga called for a motion on S.B. 267.
ASSEMBLYMAN MARVEL MOVED TO DO PASS S.B. 267.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
Chairman de Braga called for a motion on S.B. 327.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS S.B. 327.
ASSEMBLYMAN NEIGHBORS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
Chairman de Braga called for a motion on S.B. 358.
ASSEMBLYWOMAN OHRENSCHALL MOVED TO DO PASS S.B. 358.
ASSEMBLYMAN HUMKE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT.
Chairman de Braga opened the work session on S. B. 62.
Senate Bill 62: Revises provisions regarding mistreatment of animals. (BDR 50-713)
Linda Eissmann, Committee Policy Analyst, distributed a work session document (Exhibit C) and a first reprint of S.B. 62 (Exhibit D). Ms. Eissmann called the committee’s attention to the three sections of Exhibit C. The first, tab A, contained a chart contrasting existing statute with proposed S.B. 62 penalties. The second section, tab B, contained several amendments, including an “Animal Bill of Rights.” Tab C was a memorandum drafted by the Legislative Counsel Bureau in response to questions regarding restitution and juvenile offenders.
Assemblyman Collins requested clarification on the issue of noxious animals. Ms. Eissmann replied she could find no definition for noxious animals in the statutes; however, there was a reference. Assemblyman Collins agreed and called attention to the Animal Bill of Rights in tab B of Exhibit C. That document specifically excluded rats and mice, and Assemblyman Collins questioned the motives of a true animal rights activist who wanted to discriminate against certain creatures.
Assemblyman Claborn questioned how animal abuse would be detected on private property. Ms. Eissmann stated she was unable to answer that.
Assemblyman Collins cited Section 2, line 17, which referred to watching or observing animal cruelty. He voiced concern with the change in language “shall not abandon the animal” and wondered how it could ever be proven that it was a willful abandonment of the animal.
Chairman de Braga commenced discussion of the various Sections under tab A. A loosely structured dialogue ensued for more than 25 minutes during which time committee members moved freely back and forth between sections outlined in tab A of Exhibit C. Testimony from Gemma Waldron, Assistant District Attorney for Washoe county, was interspersed in the discussion. Ms. Waldron attempted to clarify existing law and penalties for the committee.
Chairman de Braga, seeing no consensus building in the discussion on S.B. 62, announced the committee would start over with Section 1 and proceed methodically through each of the 15 categories of tab A of Exhibit C. A decision would be reached on each section before moving to the next one.
Under Section 1, the penalty for keeping fighting birds or animals would be increased from the current misdemeanor status to a graduated penalty for each offense. Assemblyman Carpenter stated the penalties already existed, but were not enforced by the courts. He voiced concern there would be even more reason to ignore prosecution if the penalty was raised to a felony. That conviction would be harder to pursue.
Assemblyman Collins offered another viewpoint and stated it was often the situation that a district attorney would not prosecute misdemeanor level crimes, but would pursue crimes that carried a higher-level penalty. As such, he believed some of the penalties should be increased so that prosecution would be follow.
Chairman de Braga asked the committee if there was any opposition to the increased penalties proposed under Section 1. Assemblyman Carpenter suggested changing the penalty to a gross misdemeanor with jail time. The second offense would involve more jail time. Chairman de Braga countered it would be impossible to force the courts to impose jail time.
Assemblyman Brown explained the courts had latitude under each level of penalty. He viewed the graduated scale of penalty to be a good system, and he recommended the committee proceed with each section to judge each one accordingly.
Chairman de Braga summarized “There is no objection to No. 1.”
Under Section 2, Chairman de Braga asked the committee to look at each of the three subsections one by one. The subject was instigating or witnessing fights between animals, birds, or dogs.
Assemblyman Humke stated he was unsure he understood Section 2. He voiced concern that a person who initiated and umpired a fight would be treated the same as a witnesses to that activity. Chairman de Braga replied “yes” and added it was already a misdemeanor to witness a fight. Assemblyman Humke acknowledged that and added it would now be a gross misdemeanor for anybody, including an unwitting witness on a first offense. He argued a witness was inherently less culpable than those who initiated the fighting. Chairman de Braga clarified the penalties were graduated for the witness.
Assemblyman Mortenson called the committee’s attention to inconsistent language in subsections 2 and 3. Under subsection 2, witnessing a fight would be a misdemeanor while under subsection 3 it would constitute a Category D felony if it involved dogs. It appeared that dogs enjoyed a higher level of protection than did other animals. Chairman de Braga stated it was currently worded in statute with that distinction.
Chairman de Braga summarized and stated Assemblyman Carpenter suggested leaving the first two subsections of Section 2 alone and not accepting the third.
Assemblyman Brown questioned what the penalty would be for a Category D felony. Gemma Waldron, Assistant District Attorney for Washoe County, offered to respond. The penalty would be from one to four years and a fine up to $5,000. Assemblyman Brown voiced concern that a Category D felony was too stiff under the third subsection; however, a Category C felony was more acceptable, especially for second offenses. He commented that “witnessing” was very different from “instigating,” in his judgment. He could see no logic in combining those two offenses for dogs but separating them for other, presumably less valuable, animals.
Chairman de Braga agreed the language should be more uniform; however, it would be a major revision to the language. She summarized the proposal as removing the word “witnessing” from subsection 3 of Section 2. Assemblyman Brown viewed it as feasible.
Chairman de Braga summarized the discussion and stated, “The first part of Section 2 is okay. The second part is going to include those who witness dog fights and is graduated. The third subsection is only instigating with a Category B felony.”
Discussion on Section 3 commenced. Chairman de Braga suggested leaving the language alone, including the provision for restitution and graduated penalties for repeat offenses. Assemblyman Brown voiced concern in moving from a gross misdemeanor for physical injury to a Category C felony for inflicting substantial bodily harm or death. He asked how an accidental animal death would be handled, for example hitting a deer on the highway. Assemblyman Brown requested clarification on the definition of “overdrive.”
Chairman de Braga asked if the list of penalties under current NRS would go away if the new language was adopted. Assemblyman Collins replied “yes” and added it would always be considered a misdemeanor for every repeat offense of causing physical injury. Under current statute, repeat offenses were handled with increasing penalties, and he suggested retaining that existing language in Section 3.
Chairman de Braga asked the committee if they agreed with retaining the existing language. Assemblyman Humke questioned why the bill sponsor would do away with the mandatory minimums for the first offense. Gemma Waldron replied it was a Senate amendment and was not part of the original bill. She explained that under current law, there was no distinction between causing substantial bodily harm or death. She recommended keeping the graduated penalty in the current law and adding gross misdemeanor for the first offense if there was substantial bodily harm. The law defined substantial bodily harm as being “prolonged pain or permanent injury.”
Assemblyman Collins posed a hypothetical question about a veterinarian being charged for failure to adequately treat an animal. Ms. Waldron replied she would establish if the situation involved an accident, and, if so, no crime occurred.
Informal discussion between committee members and Gemma Waldron continued for another 17 minutes. Chairman de Braga finally asked the committee if they preferred to leave Section 3 alone under existing statute. There was no objection from the committee.
Discussion commenced on Section 4, language dealing exclusively with mistreatment of police animals. Assemblyman Collins moved to accept the first subsection of Section 4. There were no objections raised by the committee.
The second subsection of Section 4 provoked considerable discussion among the committee members. Graduated penalties were commensurate with the degree of injury to the police animal. Assemblyman Brown voiced concern over a Category D felony for teasing in subsection 1 of Section 4 under S.B. 62. He recommended differentiating between torture and mutilation and teasing.
Chairman de Braga concurred and summarized by saying “Section 4, part 1 should go up to a gross misdemeanor.” Taunting and teasing were included with administering a drug, and Assemblyman Brown could not understand why the administration of a drug was not included under torture. He viewed the drug offense as akin to the reference to “poison” in the second subsection.
Chairman de Braga summarized the discussion and stated, “Leave Section 4 as proposed in S.B. 62.” The committee concurred.
Discussion on Section 5 commenced with Assemblyman Collins asking to accept the language in the three subsections as proposed under S.B. 62. The committee offered no objections.
Regarding Section 6, Assemblyman Collins recommended leaving it alone as existing law and not accepting the proposed changes under S.B. 62. Assemblyman Brown agreed.
Discussion of Section 7, failure to provide food and water to an impounded animal, commenced. Under S.B. 62 there would be graduated penalties commensurate with the degree of harm to the animal. Assemblyman Collins voiced concern over unintentional harm to a pet. Chairman de Braga suggested a second offense situation would have been preferred and asked the committee if an amendment would be appropriate.
Assemblyman Collins viewed the language of Section 7 under S.B. 62 as allowing anybody to come on to private property. In his judgment, that raised issues of constitutionality.
After discussion with the Committee Policy Analyst, Chairman de Braga asked the committee to go back to Section 3 where it referred to a “failure to supply proper sustenance” but did not specify “impounded animal.” If Section 3 covered all animals, then Section 7 was not needed, according to Chairman de Braga. Gemma Waldron cautioned the committee the Humane Society officers utilized that section extensively in their work. Susan Asher, representing the Nevada Humane Society, offered to clarify for the committee. She stated the Humane Society used NRS 574.100 and NRS 574.120, and both were vital. She acknowledged the differences between the two were vague, but both were essential.
Chairman de Braga asked about the possibility of providing the same penalties. Ms. Asher recalled a provision for graduated penalties for both NRS 574.100 and NRS 574.120 during the last legislative session. Chairman de Braga stated it was not in the statute. She asked the committee if they agreed with providing the same penalties current under NRS 574.100 for NRS 574.120 or, alternatively, add the word “impounded” to the other section. It was decided that adding the existing Section 3 penalties was judged to be the easier option for Section 7.
Discussion on Section 8, selling diseased animals, commenced with a question from Assemblyman Brown on the difference between “knowingly” and “willfully.” Gemma Waldron explained “willful” was one of the lowest standards in criminal law and indicated it was an intentional act. Ms. Waldron contrasted that with “knowingly” and stated that charge carried a higher burden of proof in the courtroom. Chairman de Braga agreed it would be difficult to prove under many conditions.
Assemblyman Collins added “willingly” happened all of the time in animal rendering operations. Susan Asher explained a portion of the law originated in the days when Nevada was principally a ranching state. She viewed the felony category as somewhat harsh. There appeared to be adequate protection through the involvement of a brand inspector.
Assemblyman Humke voiced an opinion to delete Section 8 from S.B. 62 and leave the law as it existed with a misdemeanor penalty. Assemblyman Brown concurred with the deletion; however, he had some concern that there were situations where a disease was unknown at the time of a sale. Chairman de Braga agreed that it would be difficult to prove knowledge. The decision of the committee was to leave Section 8 as it existed in current law. The penalty would not be increased.
Discussion on Section 9, animal poisoning, commenced with a question on the issue of restitution. Chairman de Braga stated language for restitution should be in other areas of S.B. 62; however, time did not permit that type of overhaul. Several committee members interjected that restitution should be added to both categories of animals under Section 9. Assemblyman Collins stated productive livestock farms needed protection. Chairman de Braga questioned if the restitution was made to the owner of the animal or to cover costs to care for the injured animal.
Gemma Waldron clarified when there was a generalized line regarding restitution, there would be recommendations during the pre-sentencing investigation of the defendant to determine what was appropriate for that situation.
Chairman de Braga summarized by stating, “We are adding restitution to any other animal but leaving it as a gross misdemeanor and not going to the Category D felony. Remove the fine.” The committee concurred with the decision.
Section 10, throwing injurious substances to animals, was introduced. Chairman de Braga asked the committee if it should be left alone as a misdemeanor under the existing law. Assemblyman Collins voiced some concern over the deliberate actions in parades where nails were thrown into the path of the animals. Assemblyman Brown viewed a misdemeanor penalty as too light, given the parade situation described by Assemblyman Collins.
Assemblyman Collins added the problem was the bill addressed only public property, such as roads and highways. As written, the bill did not apply to private property, and, in his opinion, if it applied to private pastures, it should be increased to a felony. Chairman de Braga summarized the committee’s decision as, “Leave Section 10 as existing law. No on S.B. 62.”
After brief review of the next three sections, it was decided by the committee to leave Sections 11, 12, and 13 alone as existing law.
Discussion on Sections 14 and 15 resulted in the adoption of the new language under S.B. 62. Chairman de Braga called for a motion.
ASSEMBLYMAN COLLINS MOVED TO AMEND AND DO PASS S.B. 62.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY ALL PRESENT. ASSEMBLYMAN LEE, ASSEMBLYMAN BACHE, AND ASSEMBLYMAN NEIGHBORS WERE ABSENT.
The meeting was adjourned at 3:59 p.m.
RESPECTFULLY SUBMITTED:
June Rigsby
Committee Secretary
APPROVED BY:
Assemblywoman Marcia de Braga, Chairman
DATE: