MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-Second Session
February 27, 2003
The Committee on Government Affairswas called to order at 8:14 a.m., on Thursday, February 27, 2003. Chairman Mark Manendo presided in Room 3143 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. Mark Manendo, Chairman
Mr. Wendell P. Williams, Vice Chairman
Mr. Kelvin Atkinson
Mr. Chad Christensen
Mr. Tom Collins
Mr. Pete Goicoechea
Mr. Tom Grady
Mr. Joe Hardy
Mr. Ron Knecht
Mrs. Ellen Koivisto
Mr. Bob McCleary
Ms. Peggy Pierce
Ms. Valerie Weber
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O'Grady, Committee Counsel
Nancy Haywood, Committee Secretary
OTHERS PRESENT:
Hal Keaton, County Commissioner, Board of Lincoln County
Mike L. Baughman, President, Intertech Services Corporation, representing Lincoln County and Lander County
Ronda Hornbeck, County Commissioner, Board of Lincoln County
Julie A. Keller, Director, Wild Horse Preservation League
David Schumann, Nevada Committee for Full Statehood
Joe Johnson, Toiyabe Chapter, Sierra Club
Mickey Yarbro, County Commissioner, Board of Lander County
Terry McHenry, Nevada Association of Land Surveyors
Alan Glover, Clerk/Recorder of Carson City, representing the County Fiscal Officers Association
Barbara Reed, Douglas County Clerk/Treasurer, representing County Fiscal Officers Association
Assembly Bill 136: Authorizes creation of general improvement district for establishment of area or zone for preservation of one or more species or subspecies of wildlife threatened with extinction. (BDR 25-398)
Chairman Manendo welcomed all Committee members and visitors to the Committee on Government Affairs and called the meeting to order at 8:14 a.m. The roll was taken, and he directed the Committee’s attention to the invitation previously submitted to the Committee to attend the rural tour of Douglas, Carson City, and Lyon counties on March 15, 2003. He had received notification from eight members and urged the other four to respond immediately. He also reviewed the agenda for the day.
The hearing on A.B. 136 was opened and proponents of the bill were called to testify.
Hal Keaton, County Commissioner, Lincoln County Commission, introduced himself. With Mr. Keaton at the witness table were Ronda Hornbeck, County Commissioner, Lincoln County Commission, and Mike Baughman, facilitator for the Lincoln County Habitat Conservation Plan. In the southeastern part of Lincoln County, there existed habitat for the desert tortoise and the southwest willow flycatcher; the U.S. Fish and Wildlife Service protected both species pursuant to the Endangered Species Act. The lawful take of desert tortoise and the southwestern willow flycatcher, including habitat alteration, required preparation of a habitat conservation plan and the issuance of a permit by the U.S. Fish and Wildlife Service for an incidental take. A “take” referred to the accidental death of desert tortoises by the machinery used to disturb the land.
Large planned unit developments in southeastern Lincoln County including Coyote Springs and a southeastern Lincoln County Land Act project required compliance with Section 10 of the Endangered Species Act to proceed. The Lincoln County Board of Commissioners supported the development of Coyote Springs and the Lincoln County Land Act projects.
Mr. Keaton then spoke of A.B. 641 of the 70th Session in 1999, which focused on preserving endangered and threatened wildlife in certain rural counties. Chapter 349, Statutes of Nevada, 1999, authorized the Board of County Commissioners of Esmeralda, Lincoln, and Nye Counties to create an area or zone for the preservation of species or subspecies of wildlife that were threatened with extinction. It further enabled counties to impose and collect a fee for that purpose as a land development fee of not more that $550 an acre. In Lincoln County, the Commissioners adopted Resolution 2006 in November 2000, indicating the county’s intent to develop and implement a multi-species habitat conservation plan and to obtain a Section 10 incidental take permit for southeastern Lincoln County. Mr. Keaton explained that the Resolution and the permit together facilitated compliance in that area with the Endangered Species Act.
Mr. Keaton stated that a 22-member technical review team steering committee included representatives of private landowners, non-governmental organizations, and federal, state, and local agencies. That steering committee had met 12 times in the past 26 months to develop a draft of the southeastern Lincoln County habitat conservation plan. The Board of Lincoln County Commissioners anticipated submission and adoption of the plan to the U.S. Fish and Wildlife Service in late April 2003. The permit for incidental takes from that section of the county was expected in December 2003. Initial implementation of the plan was anticipated for January 2004.
Coyote Springs Investments was developing a project-specific multi-species habitat conservation plan on approximately the same schedule. In determining whether to grant a Section 10 permit to Lincoln County and Coyote Springs Investments (CSI), the U.S. Fish and Wildlife Service must conclude that the County and CSI had the administrative and financial capability to implement the respective habitat conservation plans.
Mr. Keaton informed the Committee that the Board of Commissioners of Lincoln County and existing respective developers of the Coyote Springs and Lincoln County Land Act projects had concluded that establishment of project-specific general improvement districts (GIDs) would be the most effective way to develop and maintain community infrastructures and services in each area. They had further concluded that vesting the general improvement districts with the responsibility of funding the initial startup, administration, and long-term implementation of respective multi-species habitat conservation plan activities would insure that related costs and responsibility were shouldered by benefiting communities rather than Lincoln County as a whole. Habitat conservation funding would be more effectively funded where the impacts on the habitat were most likely to occur.
Lincoln County, according to Mr. Keaton, had requested A.B. 136 to expand the authorized responsibilities of GIDs found in NRS Chapter 318 to include administration and implementation of Habitat Conservation Plans. A.B. 136 would enable an assessment by the GID to finance the initial startup of the Habitat Conservation Plan, administrative, and implementation processes. Per acre disturbance fees authorized by NRS Chapter 349, which were up to $550 an acre, would be used for long-term implementation of the Habitat Conservation Plan within each GID. Mr. Keaton went on to say that examples of the activities, which might be undertaken by a GID under the plan, would include some or all of the following activities:
Mr. Keaton’s closing remarks were that the Lincoln County Board of Commissioners encouraged the passage of A.B. 136 out of the Committee on Government Affairs and asked that the Committee members facilitate the bill’s continued progress through the Nevada Legislature.
Mike Baughman, representing Lincoln County, stated that the Lincoln County Board of Commissioners had been working for some time on the Habitat Conservation Plan (HCP). They understood that there could be some concern about the activities of the GID, particularly with the issue of water, the acquisition of water, and the sale of water. When Mr. Keaton listed the possible activities, he had referred to mitigation activities that were contained in the existing draft of the Multi-Species Habitat Conservation Plan, which the technical steering committee was attempting to finalize. Those measures were quite similar to what Clark County had included in their Habitat Conservation Plan. In reference to water and grazing permits, historically the Bureau of Land Management (BLM) would not compensate a grazing permit holder operating on public lands if BLM determined that an area was no longer available for grazing, either because it was habitat land for horses or tortoises, for example. In Clark and Lincoln counties, the intent was to compensate a permit holder who was determined by BLM as no longer able to run a certain number of livestock in that area as that area would be set apart for the protection of the desert tortoise. The county wished to compensate them even though the federal government would not do so. Clark County had acquired grazing permits, private lands, and water rights for those lands to safeguard the habitat of the desert tortoise. The water was being used for wildlife purposes. Lincoln County would choose to do the same thing. A concern raised, stated Mr. Baughman, was that it was one thing to acquire water rights; it was quite another to sell them. The county’s basic point was that, if one acquired the water rights, there might come a time when one would need to sell them. A GID acquired its own assets; it could acquire land, own water, and purvey water when it decided to do that. That, in Mr. Baughman’s opinion, was not exceptional.
Assemblyman Goicoechea confirmed that what was under discussion was the formation of an NRS Chapter 318 general improvement district and under consideration currently was the Multi-Species Habitat Conservation Plan. He inquired if the entire area being considered would be encompassed in the district. Also, he wondered how the tax rate would be set up for that area.
Mr. Baughman responded by directing the Committee members’ attention to the map attached to Exhibit C, “Talking Points” from Lincoln County Commissioner Hal Keaton. The map, entitled Southeastern Lincoln Co. MSHCP Plan Area, included three areas of focus. The first area on the map was a large section noted by a dotted line, which was the Multi-Species Habitat Conservation Plan (MSHCP) area under discussion. Within that area, on the southeastern side of the county map, was an area identified as the Lincoln County Land Act area. On the western side of the MSHCP was an area identified as Coyote Springs Investments. The Commissioners envisioned that there would be at least two GIDs established to deal with those very large planned unit developments. Those GIDs would likely encompass the boundaries of the two land areas noted on the map. It would not encompass the entire area of southeastern Lincoln County. They were very project-specific or community-specific general improvement districts envisioned to provide water, sewer, road infrastructure, parks, and other community services those GIDs were authorized to provide. Those locations were considered to be green-field sites; they were dislocated from other services, nothing currently existed, resulting in wholly new communities. The GIDs would have boundaries that roughly approximated the two land areas identified in the corners of the MSHCP southern boundary lines on the map. Those boundaries would coincide with the ones for the NRS Chapter 318 district that would be authorized to administer the MSHCP in those two rather small areas in relation to the whole of southeastern Lincoln County.
Assemblyman Goicoechea asked for confirmation that the revenues from those two GIDs would then service the balance of the MSHCP area.
Mr. Baughman stated the assessment that would be charged initially by the GID would be used only within each of the two areas. If the Lincoln County Land Act NRS Chapter 318 district established a nickel-per-acre assessment that related to the MSHCP activity, for example, not much income would be derived. It would, however, generate some of the funding that would be used to administer the MSHCP to get it “up and running.” Those funds would only be used within the district. The real funds, from the $550 per acre authorized in A.B. 641 of the 70th Session, were the mitigation fees for land disturbance and were very similar to the $600+ per acre charged in Clark County. Mr. Baughman stated that those dollars were used for the projects listed by Mr. Keaton as sample activities; those funds would be subject to the rules established under the U.S. Fish and Wildlife Service to implement the MSHCP outside of the GID. For example, Lincoln County was working with the BLM and the U.S. Fish and Wildlife Service to do as little as possible to tie up private lands. The County would rather work with public lands. The BLM agreed that they would like to see that happen in certain areas to help implement their own desert tortoise objectives. Some of the Section 10 fees collected would be used outside of the GID, but the assessment charged within the NRS Chapter 318 district would only be used within the boundaries of that district.
Assemblyman Collins directed Mr. Baughman’s attention to an area of the map that represented where he had previously run cattle. He was curious about the area from the Tule Desert up to Caliente but asked if the concern was limited to the “red spot and the white spot,” the Lincoln County Land Act area and the Coyote Springs Investments area.
Mr. Baughman again spoke of the concept of the GID administering the Habitat Conservation Plan. He stated that only two areas were thought to be affected, the southeastern corner, which was the Lincoln County Land Act, and the southwestern corner of the Multi-species Habitat Conservation Plan, which was Coyote Springs. The other areas of the county near Caliente were habitat lands for the southwest willow flycatcher and not the desert tortoise. The HCP did not envision any impact fees for disturbing southwestern willow flycatcher habitats. The concept of mitigation involved creating habitat banks where habitat would be created in new areas south of Caliente in the Meadow Valley Wash. As that new habitat matured, the city would be authorized to take current habitat for flood control purposes in the city. The newly established habitat would offset that habitat taken by the city. There would be no fees charged in that process. The Tule Desert was all public land currently under the Bureau of Land Management’s (BLM) Caliente management framework plan for the desert tortoise. If the BLM were proposing to hire a BLM ranger to patrol the southeastern part of its district to be sure people were not taking desert tortoises and/or dumping trash, it would be conceivable that the county’s MSHCP funding, the $550 per acre, could be portioned out to help pay for that ranger. That shared ranger would then patrol that southeastern part of Lincoln County to be certain that illegal dumps were not being set up. Dumping was of grave concern, because ravens were attracted to dump sites and they attacked small tortoises.
Assemblyman Collins reported that BLM several years ago took acreage away in the mountains from south of Mormon Mesa to do a tortoise study. BLM had just released lands back to grazing again and took another 49,000 acres farther north. His concern was the effect on those who had, for years, grazed in those areas.
Mr. Baughman reiterated that Lincoln County had no jurisdiction over BLM. The Bureau of Land Management had a desert tortoise plan in place. The actions taken would be their implementation of their plan, which had been in effect for several years. Lincoln County was just completing its plan to allow development on private lands. Those private lands were constrained by the Endangered Species Act. A.B. 136 would only affect the boundaries of the NRS Chapter 318 districts within the two areas previously noted. The administrative fees charged in those districts, the Committee was reminded, would only be spent within the boundaries of those districts.
Assemblywoman Pierce asked if A.B. 136 was primarily to allow Coyote Springs to move ahead.
Mr. Baughman stated that the bill would definitely affect Coyote Springs and would facilitate the development of Coyote Springs. It would also facilitate the development of the Lincoln County Land Act area. The County Commission was required by the biological opinion written by the U.S. Fish and Wildlife Service to put in place a development agreement with developers that would require them to comply with the southeastern Lincoln County MSHCP. The county commissioners also saw that applying very specifically to the Lincoln Land Act area, which was just above Mesquite in Clark County.
Assemblywoman Pierce followed up by asking where the water for Coyote Springs would come from.
Mr. Baughman replied that most of the water was coming from the basin in which Coyote Springs was to be located. The state engineer for development in that area had approved more than 10,000 acre-feet of water rights. Several different parties held those water rights: Coyote Spring Investments, Nevada Power, and Southern Nevada Water Authority. The service for that particular project was coming from water rights held by CSI and those held by Southern Nevada Water Authority who had worked out an arrangement with Moapa Water District, which actually had a well field and a distribution system within two or three miles of the project. According to Mr. Baughman, Moapa had agreed to serve the Coyote Springs area from their system. In exchange, the Southern Nevada Water Authority would give Moapa water from the water rights held by the Water Authority. It was complex, but the water was based on water rights within the basin, which was all ground water rather than surface water.
Assemblyman Hardy asked if the $550 per acre was a “per year” assessment.
Mr. Baughman responded that it was a fee per acre authorized by NRS Chapter 349. It was based on a “disturbed acre.” A developer would come in and say he was ready to begin grading on the first 200 acres of the project. That developer would then go to Lincoln County to apply for the grading permit. At that time, the developer would pay its $550 per acre mitigation fee. They would then be able to disturb an area. The assumption was that everything that was desert tortoise habitat covered by the plan would take desert tortoises whenever that land was disturbed. Clark County had the same process as they had attempted to move the desert tortoises to other locations but death would result. They had resorted to the “per acre” fee.
Assemblyman Hardy requested information on the take. He asked if found tortoises were taken to the desert tortoise preserve in Boulder City, or if there was a commitment to take any tortoise found by a grader somewhere else.
Mr. Baughman referenced the activities that the general improvement district would be involved in; he asked the Committee members to look at the pre-disturbance surveys and clearance. Those activities were done to determine whether there was a concentration of tortoises in a particular area. If so, clearance or avoidance measures would be enacted as necessary. Under the Section 10 permit, however, there was a presumption that one would not find all the tortoises and that some would be taken or killed. It did anticipate that the funding would be used through that mechanism to do pre-disturbance surveys.
Assemblyman Hardy questioned Mr. Baughman as to who was recompensed. He wondered if the ranchers who grazed cattle were recompensed in some way as grazing lands were being taken from them.
Mr. Baughman replied that the BLM’s desert tortoise management plan did propose reducing grazing, and they had been reducing grazing in areas of southern Lincoln County, which were critical desert tortoise habitat areas. Customarily, the BLM had not been compensating those permit holders, the ranchers, for that loss of grazing capacity. BLM viewed it as their privilege to give and to take away. The County disagreed. The County believed that the permit was a property right that would pass from one person to another or would be sold. The County would hope to compensate permit holders who faced a reduction in grazing acreage. Its plan was to compensate when implementing its own Habitat Conservation Plan out of the $550 per acre fee collected from the developers.
Assemblyman Hardy clarified for himself that the $550 fee was not just for recompensing the permit holder but would also be used for partial payment of a ranger or for the tortoise movement, and other activities.
Again, Mr. Baughman reiterated that all of those activities, tortoise fencing, public education, pre-surveys, relocation, and others would be paid for out of the fee collection as laid out by the MSHCP.
Assemblyman Hardy asked what other species would be of concern besides the flycatcher and the tortoise.
According to Mr. Baughman those were the only two listed species specifically addressed in the Lincoln County MSHCP, and the only two listed by the U.S. Fish and Wildlife Service as endangered. Another twelve species were included based on their sharing the same habitat as the desert tortoise and the southwestern willow flycatcher. Those other species were at some risk, according to the U.S. Fish and Wildlife Service, so that, as implementation of conservation practices were started for the tortoise, conservation measures would concurrently be implemented for those other species. Lincoln County would also be able to do studies on the other species, to track populations, and determine viability. The goal was to prevent those other species from ever being listed. A long-range goal was to get the desert tortoise off the list and to prevent any other species sharing the same habitat from ever being on the list.
Assemblyman Grady inquired if the intent of the Lincoln County Commissioners was to serve as the Board of Directors for the NRS Chapter 318 district initially and for how long.
Mr. Keaton responded to Mr. Grady by stating that the Board of Commissioners did intend to act as the initial Board of Directors to govern that NRS Chapter 318 district. He was not able to determine how long the Board of Commissioners would need to act in that capacity. When the time came to turn the district over, the Board of Commissioners would do so.
Assemblyman Goicoechea wished to clarify, under A.B. 641 of the 70th Session and the $550 per acre for disturbance, that the fee applied only to the NRS Chapter 318 general improvement districts. He asked if the county was able to apply the fee assessment anywhere within the Habitat Conservation Plan.
Mr. Baughman stated that Mr. Goicoechea had the correct information. For example, he directed attention to the northwest of the Land Act area to the small red square on the map. That square represented a 640-acre section, which was the location of the Toquop Energy project, which was a proposed 1100-megawatt gas-fired power plant. That 640-acre site would be subject to the $550 per acre, as it was in desert tortoise habitat.
Mr. Goicoechea used an example of a person who wished to level a field in Elgin when he asked if they, too, were subject to the $550 per acre fee.
Mr. Baughman reassured Mr. Goicoechea that the $550 per acre was a permissive fee with flexibility. The county wished to limit the fee to not exceed that amount and reserved the right to assess a lower fee should it desire to do so. The draft Multi-Species Habitat Conservation Plan anticipated no fees for agriculture; there would be no disturbance fees for agricultural projects.
Assemblywoman Pierce stated the proposed Toquop Power Plant was a water-cooled power plan, which would use 7000 acre-feet of water per year. She questioned whether the Bureau of Land Management (BLM) was asking them to consider an air-cooled power plant instead.
Based upon information he had as an Environmental Impact Survey (EIS) coordinator for BLM on the Toquop Energy Project, a role he was not assuming for the current hearing, Mr. Baughman stated that, on the basis of public comments, BLM suggested that an air-cooled plant be considered. That alternative would be a part of the final decision matrix that the BLM made on that project.
When asked by Ms. Pierce if the project could go either way, Mr. Baughman affirmed that she was correct. The Toquop Project could be either water-cooled or air-cooled. Hydrologic analyses had been done and suggested, as did independent contractors and an outside peer reviewer, that the 7000 acre-feet would not adversely impact the region’s ground water.
Ms. Pierce asked if that was ground water from the same aquifer as the Coyote Springs project.
Mr. Baughman stated that the water rights were coming out of the deep-carbon aquifer. The Toquop Energy Project would be supplied by water out of the Tule Desert from a water level about 1000 feet above the deep carbonate in a space somewhat between the deep carbonate and the surficial alluvial level. There was an analysis that stated there might be interaction between the deep carbonate and that intermediate alluvial aquifer but the draw would be predominantly out of the deep basin fill in that area.
Ms. Pierce asked how many acre-feet of water per year would be used when Coyote Springs was fully developed.
Mr. Baughman did not know the exact answer but he had heard, he said, that the projected population estimate would be 25,000 to 30,000 people, which would translate into approximately 15,000 homes. It was possible that 15,000 to 20,000 acre-feet would be needed to serve those homes per year.
Ms. Pierce also asked for information as to how close Coyote Springs was to the Moapa Paiute tribal power plant that was proposed on their land.
Mr. Baughman believed that the Moapa project was on the highway that passed through the reservation just south of Coyote Springs in Clark County just before it intersected with Interstate 15. That power plant was on the north edge of the reservation, a distance judged to be about 30 miles from Coyote Springs.
Ms. Pierce stated that the proposed Moapa power plant was also projected to be water-cooled so that would use another 7000 acre-feet. She wondered if that would be from the same aquifer as the water for Coyote Springs.
Mr. Baughman stated he was not aware that the Moapa power plant proposal was for a water-cooled plant. He supposed that it could be projected to draw water from the same aquifer but he remained uncertain.
Chairman Manendo asked Ms. Hornbeck to introduce herself.
Ronda Hornbeck, County Commissioner from Lincoln County, stated she did support A.B. 136. She wanted all present to understand that ranchers had been included in the discussion and development of the Habitat Conservation Plan to make certain that the ranchers were not adversely affected. The ranchers had the opportunity to opt in to the plan and the commissioners remained aware of their concerns. The hope was that the ranchers understood that the plan was not to make them pay as they changed their acreage. Agriculture remained very important in Lincoln County.
Julie Keller, Director, Wild Horse Preservation League, favored A.B. 136 if it included wild horses, not as an endangered species but as a Nevada wildlife species (Exhibit D and Exhibit E). She also expressed concern that A.B. 136 would send the message that the habitat of wild horses would be threatened if all of the public lands were used for grazing by livestock.
Referencing A.B. 136, Sections 1, 2, and 3, Chapter 318 of NRS, Ms. Keller continued her testimony. Wild horses, she stated, were an indigenous wildlife species. As early as the 1900s, 2 million horses roamed North America. The Bureau of Land Management had taken the position that 10,000 to 15,000 wild horses were manageable on Nevada land. BLM, according to Ms. Keller, currently held 17,000 wild horses in holding facilities. Information gathered by Ms. Keller stated that over 4 million American wild horses had been slaughtered since 1980 in the United States and Canada and exported for human consumption. Wild horses were considered to be natural resources by Ms. Keller — valued by Nevadans, Americans, and people throughout the world. Wild horses drew tourists, and wild horses were used in advertising and merchandising.
Wild horses were often blamed for overgrazing lands, continued Ms. Keller. However, they did not pull grass from the roots but grazed off the top as they roamed as far as 100 miles per day. In the wild they would not deplete their natural resources.
Livestock fencing on any public land eliminated the ability for wildlife to access water. There were 48 million acres of public land, Ms. Keller stated; 45 million acres were used for grazing according to Mr. Bob Abbey, BLM in Nevada. In 2003, BLM generated $300 million for a special fund set up by them. She questioned the money’s use.
There were 102 threatened species in Nevada. Ms. Keller emphasized that there was available a product that would keep all wildlife off roads and highways. The Strieter-Lite Wild Animal Highway Warning Reflector System (Exhibit F) had been tested east of Dayton, Nevada, for almost a year. Ms. Keller noted that Gail Bellenger, Nevada Department of Transportation biologist, had clarified that the system had resulted in a zero death rate in that area during testing. The system’s reflectors were eligible for federal funding of 95 percent by the U.S. Department of Transportation General Highway Administration through the Hazard Elimination Fund. The Strieter-Lite Reflectors had many positive aspects about them to consider:
Ms. Keller closed her remarks by thanking the Committee for the opportunity to speak about A.B. 136.
Assemblyman Collins reaffirmed the state’s inability to change the federal Wild Horse and Burro Act, so the Habitat Conservation Act would be unable to change the management of horses by the BLM just as it was unable to change the way in which allotments were given or taken away. He also suggested that Ms. Keller disclose that she was the dealer for the reflectors she described.
Ms. Keller affirmed that her husband was the distributor.
David Schumann, Nevada Committee for Full Statehood, spoke in opposition to A.B. 136. He wished to speak about a few misstatements of the law made by Mr. Baughman. Mr. Schumann read a portion of the Federal Land Policy and Management Act to the Committee, Title 43, and Section 701 of Public Law 94-579 of the U.S. Code, to affirm that the law did not allow the Bureau of Land Management to take away grazing permits from ranchers. Nothing in the act was to be construed as limiting or restricting “any state or political subdivision thereof of any right it may have to exercise civil and criminal jurisdiction on the national resource lands.” Within the limits of the state, Mr. Schumann continued, BLM had not, in the past, compensated ranchers when the permits were taken away. That was changing as a result of the Wayne Hage case. The federal government was about to pay millions of dollars to Wayne Hage for taking a permit from him. He returned to his land without a permit, as those allotments were of fee interest. The court’s decision was that they were inheritable, they were saleable, one paid an inheritance tax on them, and so the concept of “public lands” was no longer valid. Any land on which claims of another person was attached would not be true public land. Mr. Schumann stated that those lands were “public” only in the sense that the U.S. Government was the controlling force there. People would be able to walk across those lands, ranchers would be able to erect fencing to control herd movement, or would be able to impede the access to the land for use by four-wheelers. To drive across the land held by a rancher with a permit would disturb the cattle and that would be interference in the rancher’s fee interest and grazing allotment, which was dependent solely on the state water rights, that rancher received.
Mr. Schumann spoke sharply about the science used to declare various species endangered. He spoke of the “spotted owl” hoax, which was said to have been perpetrated in California by the U.S. Forest Service to the ruination of the lumber industry. Mr. Schumann quoted Judge Lawrence S. Margolis who called the hoax “arbitrary, capricious, and without rational basis.” When someone acted without rational basis, stated Mr. Schumann, the common word for that was “insane.” Those “insane” policies were an effort to prohibit lumber cutting as the spotted owl was said to live only in old-growth forest, he said. He then stated, “The owls lived anywhere, billboards on highways, anywhere there was a tree.” A lumber company was awarded several million dollars by that judge to reimburse it for losses that occurred as a result of the policy, which had really been put in place at the insistence of the Sierra Club, according to Mr. Schumann.
The “lynx-hair fraud” was described by Mr. Schumann as further evidence that federal agencies, which designated specific species as endangered, used fraudulent evidence to support those determinations. Five employees of the Forest Service and two Washington state employees were investigated and disciplined for perpetrating a hoax, as were two others who worked for the U.S. Fish and Wildlife Service, as reported in “The Washington Times,” January 7‑13, 2002, national weekly edition. In Idaho, continued Mr. Schumann, there was an effort to create corridors in the wild lands project to run grizzly bears from Canada to Mexico. Those who created the corridors were caught in the act. They were enticing grizzly bears into the corridor by placing dead horse carcasses in them. Mr. Schumann cautioned Committee members to question the authority of any agency that presented the public with a list of species determined to be endangered. He was especially concerned, he said, that the state was collaborating with and facilitating the continuation of the Endangered Species Act. No one had the power to stop the list-making but the ability to chase people off the land had just ended.
Former Congresswoman Helen Chenoweth-Hage was to give a legislative briefing on the policy implications in Nevada of Hage v. United States. The briefing was scheduled for March 5, 2003, in Carson City, Nevada, and the public was invited. Mr. Schumann begged the members of the Committee to listen to what she had to say. The ability of any federal or state agency to tell cattle ranchers that they may no longer graze cattle in a desert tortoise habitat was no longer valid. One did not need a grazing permit to graze, according to Mr. Schumann. A fee interest in the land existed because of the allotment based on water rights. The Hage case was finally concluded, after approximately eight years, in January 2002. The federal agencies, as a result of that case, would pay permit holders in the future.
The Bureau of Land Management relied on the Code of Federal Regulations, Title 43, affirmed Mr. Schumann. BLM claimed that it had the authority to remove livestock as well as people from public lands. That was in direct contrast with the U.S. Code of Federal Regulations, which voided such behavior. Excerpts from the U.S. Code were provided for the record.
In summary, Mr. Schumann fervently requested that A.B. 136 be specific to Lincoln County. That would result in other counties with similar ideas coming before the Legislature with new bills specific to them. “If the bill was specific to Lincoln, then the harm extended only to Lincoln,” he stated. He strongly opposed the concept of general improvement districts in which the people would be taxed to support the Endangered Species Act, which identified endangered species based on faulty evidence. He closed by again urging members to attend the briefing by Helen Chenoweth-Hage on the implications of the Hage case for Nevada policy.
Assemblyman Collins requested a disclosure that the hearing Mr. Schumann recommended attending was costly at $40 per person. There would be a briefer seminar offered for no charge in the Committee on Natural Resources, Agriculture, and Mining of the Nevada Legislature on the same day. Mr. Collins continued by stating that, if one supported development and improvement of homes, then one would support A.B. 136, which allowed Lincoln County to develop two areas in their county and to find ways to mitigate that development so that the county would be able to continue its growth.
Mr. Schumann disagreed with Mr. Collins’ concept based on the exceptions he took to Mr. Baughman’s testimony. Mr. Schumann attempted to continue his testimony as to what he considered to be faulty resources chosen by Mr. Baughman to guide his testimony in support of A.B. 136. Mr. Schumann again suggested restricting A.B. 136, “so then it doesn’t bother the rest of us.”
Joe Johnson, Toiyabe Chapter, Sierra Club, stated that the Sierra Club supported actions to preserve and protect endangered species and habitat. He expressed the opinion that traditionally the Toiyabe Chapter had opposed development in Coyote Springs and had submitted comments to various other development programs, specifically the use of water in power generation. In those parts of A.B. 136 that supported those projects, the Toiyabe Chapter stood in opposition. Other points he wished to make would be in response to Mr. Hardy’s question as to how often the $550 assessment fee would be paid. Mr. Johnson stated that the fee was a one-time only fee, not an annual assessment. The development of the plans for the GID included comments such as “at this time, we are considering…,” or “right now we are considering…,” or “right now we are planning…” Mr. Johnson’s concern was that those comments left the planning totally open-ended for the future. The cost to ranchers, for example, was not defined nor was it determined at the current time. Again, he declared, the chapter was supportive of efforts to protect endangered species but was not supportive of the proposed developments.
Ms. Pierce asked for a clearer understanding of the Sierra Club’s opposition to the Coyote Springs development.
Mr. Johnson said that the club believed that there had not been documented water supplies in the vicinity. They were opposed, also, to the impact on the wildlife of the area.
Mr. Hardy asked if there was documentation from someone that stated that the $550 assessment fee was a one-time assessment only.
Mr. Johnson replied that the information Mr. Hardy asked for would be better heard coming from the primary sponsors of the bill.
Chairman Manendo closed the hearing on A.B. 136 after hearing no objections from the Committee’s guests or from the Committee members.
Assembly Bill 152: Authorizes certain counties to adopt ordinance providing, under certain circumstances, for interchangeable filling of certain county offices by way of ex officio service of certain other county officers. (BDR 23-396)
Chairman Manendo opened the hearing on A.B. 152.
Mickey Yarbro, County Commissioner, Lander County Board of Commissioners, spoke in support of A.B. 152. Lander County’s Board of Commissioners had requested A.B. 152 to enable the Commission and those of other rural counties to have the flexibility to combine one or more of the elected offices of Recorder, Treasurer, Clerk, Auditor, and Assessor, as may be needed to align duties and workloads of the officers with the availability of qualified personnel and financial resources.
Lander County, as with other rural counties, faced significant budget constraints in the coming biennium. The County needed the flexibility, he reported, to reduce the number of elected officials as needed, along with the related staffing costs, to adjust to those constraints and workload requirements.
Mr. Yarbro asked Mr. Baughman, who represented Lander County as well as Lincoln County, to continue. A.B. 152 began, he stated, as a request to have flexibility to deal with their own financial issues. Lander County Commissioners came to the Nevada Association of Counties (NACO) to get their feedback and got the sense from peers that there would be interest in other counties to have the ability to align the elected officers to match up workload requirements. The bill was expanded to allow other counties under a population cap of 100,000 persons to determine within their own counties the best way to deliver the services associated with those various offices. That was considered critical under the current trying financial times. The county agreed to those changes then amended the bill with the bill drafters. Committee members now had the resulting bill with the maximum flexibility that was envisioned in deciding how best to align the workloads and skills of personnel.
The statutes that concerned those elected officers were 81 years old and were adopted in 1922 with few amendments along the way. Some counties had, in the past, asked permission to combine offices so the concept was not new. As seen in Exhibit G on page 3, Table 1, Examples of Combined Offices, many counties had combined offices allowing one officer to fill another office ex officio. Many counties had exercised that possibility. The combination of offices seemed to allow for the reduction of costs, capitalizing on capabilities and skills, and creating more efficiency. Carson City, Mr. Baughman pointed out, was unique in that it had combined three offices that were handled by one official. A.B. 152 would allow any county with a population under 100,000 to exercise that flexibility, as each deemed appropriate.
Mr. Baughman noted that, in the construction of the bill, concerns were expressed about possible future use in some vindictive way by a county commission that expressed their dislike for a particular elected official by choosing to delete his/her position. A series of safeguards were thus included in the bill. In Lines 2-41 through 3-2, it was required that any adopted ordinance to combine elected offices was ineffective until such time as the expiration date of the term of office had passed, and/or the ordinance would not take effect until there was a vacancy. No one would be thrown out of office during the middle of that person’s term.
Further discussions with sister counties, elected office holders, and legislators resulted in the list of concerns and opinions on page 2 of Exhibit G:
Currently the county clerk was responsible for certifying to the Secretary of State that the person elected to public office was, in fact, qualified to serve in that office. Basically, without further descriptions of what constituted “qualified,” that would mean the person was a qualified elector. Presumably, any elected officer that the county commission would be considering to designate ex officio in another elected office capacity would have already been determined to be qualified if they were sitting in office. For that reason, lines 2‑37 through 2-40 were recommended to be deleted.
After line 3-2, Mr. Baughman suggested, on behalf of Lander County, adding a new subsection 6 as follows: “Public hearings held on any ordinance to be considered for adoption pursuant to Subsection 3 must not occur until a non-binding referendum on the ordinance was held in a county-wide general or special election.” That addition would slow the deliberative process down to think about the change quite far in advance. The election would be held, it would be an advisory vote, the county commissioners would take that data derived from a much broader public base, and then hold a public hearing with the results of the referendum in hand. He reminded Committee members that none of that would be done until the term was close to expiring or a vacancy had occurred.
Further amendments included deleting lines 3-27 through 3-36 as that was the section dealing with sheriffs, delete lines 4-19 through 4-28, the section that dealt with district attorneys, and delete lines 5-1 through 5-32, the section that dealt with constables. That was to remove the applicability of the bill to those specific offices.
Mr. Baughman believed that the suggested amendments addressed the concerns that Lander County officials had heard. NACO, working with Lander County, had polled many sister counties and a tally sheet was available to signify support as well as opposition to the bill by various county commissions. Nine counties expressed full support for the bill, one county expressed opposition to the bill, and two counties had expressed neutrality.
Mr. Goicoechea supported the bill as amended. He disclosed that he was one of the legislators who had expressed concern about the ability of county commissions, by ordinance only, to combine offices. Theoretically, a board that disliked an office holder would have been able to combine offices without even acknowledging the will of the people. An ordinance did not require anything other than action of a board of commissioners. He thanked NACO and Lander County for the amendments.
Mr. Knecht asked for the names of the counties in opposition to or neutral regarding A.B. 152.
Mr. Baughman stated that Storey County was opposed and that both Washoe and Esmeralda Counties remained neutral.
Hal Keaton, Lincoln County Commissioner, stated that Lincoln County had had the opportunity to review the bill and its amendments and wished to go on the record as supporting the bill as amended.
Terry McHenry, Nevada Association of Land Surveyors (NALS), affirmed that he and NALS had an interest in the bill as it related to the position of the county recorder. While he understood from prior testimony that there had been an amendment suggested to delete subparagraph 4 of Section 1, NALS’ interest and support of the bill was dependent on retaining the statement that the officer be qualified to perform the duties. The county recorder position was very important to land surveyors in the state. The duties were very technical in nature, and their concern was to maintain some language that would specifically address qualifications because of the technical nature. Therefore, NALS stood opposed to deleting that section of the bill. He mentioned that Senate Bill 80 was to be heard the next day and was absent that qualifying language. He would be testifying to amend and include that qualifying language.
Mr. Goicoechea remained concerned about how one would determine if a candidate for office for a position such as county recorder was “qualified.” Again, all that was legally required to run for office, any office, was to pay the candidacy fee of $50 and be placed on the ballot allowing the voters to decide on a candidate’s qualifications to hold the office sought.
Mr. McHenry replied that he understood Mr. Goicoechea’s position. While it was stated earlier that the statutory qualifications specific to county recorders were absent, a search of the statutes would result in a list of statutes that addressed, albeit indirectly, the functions that the county recorder must perform. Those were very technical in nature and that was NALS’ concern. While the duties were not specifically outlined in the statute, they were indirectly addressed in others. Mr. McHenry acknowledged that ultimately the voters would decide on the person they believed to be better qualified. He hoped the Committee understood, however, the concern that information submitted for recordation, maps, and the review of the recorder ultimately was extremely important for the protection of the public.
Alan Glover, Clerk/Recorder of Carson City, was representing the County Fiscal Officers Association (CFOA), an association made up of all of the clerks, the recorders, treasurers, auditors, but not the district attorneys, sheriffs, and the assessors. Unlike the previous testimony of the counties which suggested there was some split in their support, Mr. Glover and the people he represented were 100 percent opposed to the bill. Basically, he declared, the bill was “a bad piece of legislation.” A.B. 152, in its overall scope, removed the checks and balances in county government. It placed the elected officials of the counties under the control of the county commissioners. He stated, “If we do not do what they want, they can threaten us, even though it’s in four years, to put us up on the meat rack to be abolished.” Many situations occurred where that could be the outcome. Mr. Glover gave a scenario in which a large county developer who was a major contributor to a county commission race wanted the county recorder to give him a break on transfer fees when the developer brought in large parcels or valuable pieces of land to be recorded. Many of the duties of the recorder were delicately balanced. A recorder who felt his/her position was threatened by not complying with the request was placed in a very precarious position. County clerks would have similar pressures, he suggested. He stated that Barbara Reed, Douglas County Clerk/Treasurer, would testify to another form of pressure. He suggested that a county commissioner might want the minutes of a meeting changed because “that was not exactly what was said” or they meant something else. Both Mr. Glover and Ms. Reed remained adamant that the minutes reflected what happened at a meeting and were not subject to change at a later date. Mr. Glover stated that as the previous witness from the Land Surveyors testified, recorders’ offices were really much more technical than people thought. He referred to a book in his office that contained district attorney and attorney general opinions on all aspects of the Recorder’s Office. Recorders must know, continued Mr. Glover, what those opinions had said over the last 30 to 40 years when a recorder interpreted transfer taxes and recorded certain types of documents. Another volume included office procedures and state laws including state regulations to interpret and enforce a transfer tax, a very complicated tax. A recorder must know what he/she was doing in that office. Many of the rural county recorders were three-person offices. If one were removed, the larger question was who would perform that individual’s functions.
When Mr. Glover became Recorder in 1985, it took him at least six months before the workers in his office would leave him on his own to record anything. A year later, he was much better able to answer pertinent questions; however, cross training was very difficult to achieve. In the assessors’ offices, those people had to know what they were doing too.
Carson City was often used to illustrate the success of combining offices, so Mr. Glover added background to that situation. He was elected in 1985 as the Carson City County Recorder and ex officio public administrator of Carson. Public administration had always gone with the Recorder as far back as one researched. Carson was broke at the time, they were $1 million in debt, and Ted Thornton who was then the Clerk/Treasurer came to Mr. Glover stating that he needed to be a fulltime treasurer. He asked Mr. Glover to consider taking over the Clerk function. After much discussion, Mr. Glover agreed. It was determined to be in the best interest of the people of Carson City. What was done then was to go to the Legislature and asked for a change. That was very different from what the process would be should A.B. 152 pass. There was an outlet, he continued, to correct those problems. If a county needed a realignment of county offices, there was currently a way to accomplish that; the process was to go to the Legislature and propose that, when a term of office was ended, combining offices would be in the best interest of the county and of the citizens. Mr. Glover stated that he and those he represented were very afraid to leave that power in the hands of county commissioners, as it would be too easy to use that power against those who held elected positions. Again, in the counties, it was the clerks, the assessors, the treasurers, and others who were the stabilizing force in county government. County Commissioners came and went. It was the career employees who stayed and kept the county functioning: making sure the money comes in, the taxes were collected, and the assessments were done properly. As you noticed, he said to the Committee members, the assessors and treasurers did not change for years.
Mr. Glover testified that he believed that combining offices would not save much money. There would be, in all probability, a need to bring in a chief deputy recorder, a chief deputy assessor, or a person placed in a similar position. As he thought had been pointed out when testimony was given as to the salary bill, A.B. 66, those appointed people would make more money than the elected officials. Even with the proposed increases previously discussed, elected officials are a “pretty good buy.” The elected officials earned their money for what they received. Deputies should and would be entitled to more money than the elected official because they would have to know something. Saving money would not be the result of passage of A.B. 152.
The County Fiscal Officers Association did appreciate Lander County’s placement of the election portion into the bill, stated Mr. Glover. The association would have preferred to see that as a binding vote. On the other hand, again referencing the concept of saving money, Mr. Glover pointed out that a special election in Carson City would cost about $40,000. By the time an election was arranged and the vote taken, a county could be saddled with an empty office for a long time.
Mr. Glover clearly stated that what was being asked was for the Committee to defeat the bill as it was presented. The thought was that it was not good government, and counties already had other options including coming to the Legislature on a case-by-case basis, making their argument as to why the offices should be combined, and asking for approval for the combination of those offices.
Barbara Reed, Douglas County Clerk/Treasurer, also representing the County Fiscal Officers Association, stated that her association believed that the authority was already in place for commissioners to do what was being requested in A.B. 152. They were able to come to the Legislature, as they had done in the past, and that would be a good check and balance. The commissioners were not able to make changes in the structure of their county’s elected officers’ positions “on a whim.” They were to come forward with valid justification to the Legislature and request the split or the consolidation or abolishment of an office through the legislative process. Regarding the elections, county commissioners already had the authority to put advisory questions on a ballot. There would not be a reason to say that the bill would allow them to have an election. The commissioners were able to obtain an advisory public opinion now. Ms. Reed thought it important to look at both past and future. When the Constitution of State of Nevada was created, the three branches of government, the Judicial, the Legislative, and the Executive branches, were included to provide a system of checks and balances. Elected officials did not work for the counties’ commissioners. As Mr. Glover alluded to, there were several times when elected officials were required to go toe-to-toe with one or more commissioners. Elected officials had had to say, “No, I will not change your minutes.” That was the reason why clerks were the keepers of the records. It had also been necessary to go toe-to-toe with judges on occasion. Ms. Reed had experienced commissioners saying to her that there was a casino at Tahoe, for example, that was late in paying its taxes, and the commissioner was requesting that the penalty for late taxes be waived. She would not do that, and it concerned her a great deal that commissioners, under A.B. 152, would have the power to threaten to abolish offices. The people selected the elected officials. Proponents were stating that the voters in our counties were not intelligent enough to select their elected officers and that commissioners were now better qualified to select them, Ms. Reed claimed. That would take voter rights away. She stated that she believed that voters did know whom they were placing in offices. The elected officials were career employees; they were full-time while the commissioners were part-time. Some of those officials came into the courthouse as infrequently as twice a month, and sometimes the elected officials wished there were qualifications for them, she said with a laugh.
Ms. Reed again stated that she was adamantly opposed to the bill as was the County Fiscal Officers Association. She confirmed her belief that it was not good for the constituents or for the future of the counties. There were controversial issues that many elected officials must take a stand on. Recently Douglas County dealt with the issue of sustainable growth. A ballot committee process was put together, Ms. Reed made changes to the recommendations from the committee, and the committee was very upset with her. She would hate to think that, if the current board decided not to run and many of the members of that committee were elected instead, that there could be a “get even” situation.
Ms. Reed encouraged Committee members to look carefully as to “why it was formed, that it was functioning successfully, and that it could be detrimental in the future.” As she represented the Executive Branch of Douglas County Elected Officers, she wanted the Committee to know that they stood opposed to A.B. 152 also.
Chairman Manendo asked how Ms. Reed would feel if the Committee changed the population cap from 100,000 to 40,000 or even lower.
Alan Glover restated the position of the association that they were moving as a group. All members in that association remained aware that what affected one member would affect other members. Changing the population cap would not solve the problem; it could even compound it in some of the smaller counties by putting them under greater pressure than some of the members in larger counties.
Assemblyman Goicoechea spoke to the witnesses about the process that currently existed for the commissioners to come before the Legislature and to request a combining of offices. Those testifying against that combination of offices would be the elected officials who would be affected. He said that the process still took the voter out of the process. He did agree with the point made by Mr. Glover that a vote of the people should be binding rather than advisory in nature. He stated that his real interest in the bill, both as a legislator and as a former county commissioner, was not to take the voter out of the process. Even in the current process, the voters were not heard.
Mr. Glover responded by stating his appreciation for the included language directing change to occur only at the expiration of a term or when a vacancy occurred. No one should be forced out of a job. In a county, when someone indicated that it was time to retire, that would be a good time to investigate the need for combining offices. That would be more palatable as commissioners would be dealing with an office, not a real human being. Mr. Glover would still prefer, however, that the Legislature be that agency that granted or denied permission for the combination of offices. On a county-by-county basis, it would seem more reasonable to consider change when a position was vacated due to retirement. In Carson City, Mr. Thornton and Mr. Glover discussed the change, agreed that it would be in the best interest of Carson City, and the change became effective at the time of the next election. When those changes were made by mutual agreement of the parties involved, Mr. Glover stated that voter approval was not necessary. Again, as Ms. Reed pointed out, Mr. Glover had no quarrel with placing before the voters an opportunity for an advisory vote.
Assemblyman Goicoechea relayed his understanding of a timeline that he surmised would be important to implement. The proposal for combining positions was made long before it was to happen: There would be a mid-term election in two years, that would be a general election, the county would place the proposal on the ballot, and the vote would be either advisory or binding.
Assemblyman Knecht stated that he thought the arguments of Mr. Glover and Ms. Reed were persuasive, although he had not decided his position at that time. He did wish to note his complete concurrence with Mr. Glover’s statement that he and the other elected officials were a bargain.
Assemblyman Hardy asked if Carson City had ever given its citizens an opportunity to vote on combining the treasurer’s position with that of the clerk.
Mr. Glover responded by saying that the vote had never taken place. However, Carson City did the combining of offices through its charter rather than through state law. The charter was amended then the state law was conformed to reflect that change. It was discussed, however, with the general public at board meetings. It was made very clear that the decision had been made. The newspaper supported that decision. Mr. Glover had the experience to handle the recorder position as he had been doing that. Adding the clerk position to his other responsibilities was adding, basically, the elections, marriage bureau, secretary to the Board of Supervisors, and secretary to other boards and commissions.
Assemblyman Hardy reflected that, while the Committee was looking at the issue of citizen input through the voting process, Mr. Glover’s experience did not include that. There was no vote that happened. Other concerns were expressed. One was Mr. Hardy’s understanding that the ex officio officer, who was already deemed competent and capable to work as a recorder in one county, could be called on to act in that capacity in another county.
Mr. Glover stated his belief that the intent was not to have one person serve in two counties. Because one had to be a qualified elector within a county to hold office, it would not be possible to have an elector from another county serve as an ex officio officer.
Mr. Hardy referenced page 3, line 2: “Ex officio by another county officer.” That meant a person who was a resident in the same county, he assumed.
Mr. Glover stated that he was legally the Carson City Clerk and ex officio recorder, an ex officio public administrator. The public administrator was always ex officio to the County Recorder’s Office, he reported.
Assemblyman Hardy asked again if his assumption was correct and the bill was not referencing combining, for example, Lander County and Eureka County Recorders; the proposal was speaking of the combination of offices within the same county. He was thinking beyond the issue, Mr. Hardy said, with his concept that a person of some expertise as a recorder might be called upon to act in a temporary or as an ex officio member, or consultant, to a less experienced officer in another county. “Do I want to open that can of worms?” he asked.
Mr. Glover’s response was that he thought not as he did not believe it would be constitutional. Mr. Glover suggested that Mr. Hardy might consult with the Committee’s Legal Counsel about that issue of constitutionality.
The Committee and Mr. Glover then allowed themselves a minute of humor as to who would serve as the Recorder in Bull Frog County.
Mr. Grady wanted to follow up on Mr. Hardy’s question. Carson City was considered unique, as it was the only county that had a charter. Carson City would then be allowed to do things under their charter that other counties could not do.
Chairman Manendo reviewed the business of the day, asked if there were any other witnesses to speak in opposition to A.B. 152. Hearing none, he closed the hearing on A.B. 152.
Chairman Manendo reminded Committee members to respond immediately to the invitation to attend the tour of Carson City County’s and Douglas County’s offices and facilities. The Chair adjourned the meeting at 10:03 a.m.
RESPECTFULLY SUBMITTED:
Nancy Haywood
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: