MINUTES OF THE meeting
of the
ASSEMBLY Committee on Natural Resources, Agriculture, and Mining
Subcommittee
Seventy-Second Session
March 17, 2003
The Committee on Natural Resources, Agriculture, and Mining Subcommittee was called to order at 1:57 p.m., on Monday, March 17, 2003. Chairman Tom Collins presided in Room 3161 of the Legislative Building, Carson City, Nevada, and via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
This meeting was videoconferenced to Las Vegas, though not on the agenda, because videoconferencing had already begun to accommodate the scheduled Committee meeting held after this Subcommittee meeting.
COMMITTEE MEMBERS PRESENT:
Mr. Tom Collins, Chairman
Mr. Harry Mortenson
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Linda Eissmann, Committee Policy Analyst
Erin Channell, Committee Secretary
OTHERS PRESENT:
Alexis Miller, Manager, Government Affairs and Community Relations, Nevada Mining Association
Ron James, State Historic Preservation Officer, Historian, State Historic Preservation Office, Nevada Department of Museums, Library and Arts
Joe Guild, Representing Newmont Mining Company
Chairman Collins:
Subcommittee on A.B. 131 is now called to order. [Roll was called.] We have a quorum; we’ll begin this hearing.
Assembly Bill 131: Makes various changes relating to protection of cultural resources. (BDR 33-92)
Chairman Collins:
Assemblyman Mortenson, there were some discussions and proposed amendments on this bill. I know I had three questions. Did you want me to take care of those three questions first before you indulge, or do you have some new ideas?
Assemblyman Mortenson:
I think that would be a great idea.
Chairman Collins:
Could we ask Ms. Alexis Miller to come forward, representing the Nevada Mining Association? I will apologize that we are starting late; it’s because we just got off the Floor. That’s a reasonable excuse for being late; otherwise we don’t plan to be late for meetings. I apologize to those of you who had to wait for a while. First of all, page 1 looks great; and on page 3 there’s only one small question; but on page 2 we have three questions (Exhibit C provided by Ms. Miller).
First one would be, at the top of the page, where you’ve deleted the first 2 lines, could you tell us why you want to do that.
Alexis Miller, Manager, Government Affairs and Community Relations, Nevada Mining Association:
[Introduced herself] We’ve deleted those two lines simply because we do not support, generally speaking, legislating laws to require this type of support from the agency (Exhibit C).
Assemblyman Mortenson:
Could we have Mr. Ron James come up, and would you mind expressing your view on deleting those two top lines?
Ron James, State Historic Preservation Officer, Historian, State Historic Preservation Office, Nevada Department of Museums, Library and Arts:
[Introduced himself] I was just made aware of these amendments a few minutes ago, so it’s a little cold for me. It occurs to me that this is the intent of the bill, and I don’t mean to speak on your behalf because it’s your bill. The intent of it, the way I understand this bill, is to create a mechanism to encourage a group of volunteers to promote the responsible management of public lands. These two lines speak to that; maybe there’s an alternative way to speak to that, but that’s my understanding that that’s what this is intended to do with these two lines.
Chairman Collins:
Let me ask you this, Assemblyman Mortenson, I thought you had some more prepared information on this question that came up. At the beginning of the first page of this, to administer by regulation and establish a stewardship program; I’m curious, does this not say the same thing or does this go beyond the original intention – support the adoption, enforcement of national, state, tribal, and local laws and regulations protecting cultural resources. I’m trying to find out why that would not be covered under: “The Administrator shall, by regulation, establish a steward program,” which is the volunteer group that will do that. Just a clarification.
Assemblyman Mortenson:
I believe that the mining industry won’t state what their objection is. I think their objection is that it includes federal national land; they do not want any stewardship activities taking place on national land, I believe.
Chairman Collins:
This doesn’t say national land, it just says laws.
Joe Guild, Representing Newmont Mining Company:
I think I can help.
Chairman Collins:
Ms. Miller, would you like Mr. Guild to assist you?
Alexis Miller:
Yes, please. Thank you.
Joe Guild:
[Introduced himself] The reason for the deletion of the first two lines on the top of page 2 (Exhibit C) is that you can’t, by regulation, at least in my mind as a lawyer, legislate a truism. I think there’s a redundancy here; it’s an obvious statement of, perhaps, legislative finding, but it’s kind of superfluous, and here’s the reason I think so. You’re going to have an administrator of a state agency, by regulation, saying that they support enforcement of national, state, tribal, and local laws and regulations. The administrator of that agency is required, by law, to enforce national, state, tribal, and local laws and regulations. I think it’s a repetition and unnecessary in a statute.
Chairman Collins:
Isn’t that what I asked a minute ago? Maybe I didn’t ask it right.
Joe Guild:
I think you were asking for the reason the Mining Association struck those two lines, and that’s the reason I just gave you.
Chairman Collins:
I understand that, but earlier, I think I made the same comment you did, if the beginning of the section says: “The administrator shall, by regulation…” run the program; that would be, by regulation, the administrator would be supporting all those areas. Is that what you said, too?
Joe Guild:
That’s what I just said, exactly. To further that point, you’ll note that the amendment we’re proposing does not delete the administrator’s regulatory effort to support and encourage high standards. To me, that is what a regulation should do, set standards. Then also, page 2, line 5, “promote cooperation,” those are another goal of good regulatory effort, it seems to me.
Chairman Collins:
Mr. James, would you clear us up a little bit, please?
Ron James:
I understand what Mr. Guild is saying, and I think that this is not a “do or die” piece of legislation. It certainly speaks to what the heart of the legislation is all about. But the heart of the legislation is to support laws that exist, and that’s clear by the stewardship program. I suppose there’s no reason to make it redundant, if they’re concerned here. I would certainly defer to the counsel on this; it’s not going to kill the bill by deleting these two lines. I would recommend you delete.
Chairman Collins:
So you can go either way; that doesn’t harm the bill by deleting those two lines. But we do have another question, starting on page 2, line 7 (Exhibit C), where it starts in the latter part of the sentence: “…and enter into agreements with such agencies, organizations, Native American tribes and natural persons to promote the protection of cultural…” by your regulation of stewardship, why would you not, and this question goes to Mr. James, why would you not enter into agreements with other agencies? Is there a reason you’d want to, or – let me go back and ask, while you look at that, Mr. James, on the second page, lines 7-10. Ms. Miller, would you like to tell us why you want to delete that?
Alexis Miller:
Possibly, if it read: “and may enter into agreements,” but it seems that we’re dictating who the agreements are entered into with, and limiting it. If it could read “may enter into agreements?”
Chairman Collins:
Then they could enter into agreements where, maybe, they worked hand in hand in the Valley of Fire, or some other place, on running a gift shop, those kinds of agreements, or protecting petroglyphs at Sloan Petroglyph site. They could have a partnership and work with those agreements so if they “may” enter an agreement, not be required to enter an agreement, then what would be your issue? Only the word “may?”
Alexis Miller:
The language could be kept in if it read: “about the protection of cultural resources and may enter into agreements with such agencies…” so it’s not necessarily mandating that they do enter into agreements with only these listed.
Assemblyman Mortenson:
That would be fine. The only problem is I don’t understand why you have such a concern over it, if they “may” do it anyway, why not just leave it that way?
Chairman Collins:
This requires them; is that what you’re saying? I think we got clarified on page 1, where it says: “The Administrator shall…” and then you go to the second page, “enter into agreements.” That’s why there’s not a “may” listed in there, there’s already a “shall” (Exhibit C).
Ron James:
The words “such agencies, organizations…” the word “such” there provides an ambiguous term that allows for cooperative agreements to match the circumstance. The word “such” in this circumstance implies a “may” override, I believe. I think that actually does achieve what the industry wants, already, with the word “such.” I would endorse that ambiguity so that we can have flexibility, because you wouldn’t want to be required to enter into agreements with the same people over and over again when the resources don’t require it.
Chairman Collins:
Then the question arises, Mr. James, is that “such agencies” describes these, but there could be others.
Ron James:
You don’t have to do it with those agencies, depending on the resources.
Chairman Collins:
“Such agencies” are not mandatory; “such” doesn’t make an option. “Shall” on the front page, you “shall by regulation establish,” and then on the second page, “enter into agreements with such agencies as…”
Ron James:
I read those as a series of examples of “such agencies” agencies such as; I’m reading that as examples of the kind of –
Chairman Collins:
Make it conditional? Or bring it back to a “may”? Let’s let the attorney do it.
Joe Guild:
Mr. Chairman, I think you’re, with all do respect, reading it wrong. If you read with me, the first sentence on the first page: “The Administrator shall, by regulation, establish a stewardship program to…” and then go to subsection f, “Promote cooperation…,” et cetera, “and enter into agreements with such agencies…” That isn’t a mandatory situation in my read. The mandatory aspects of this is “a regulation to promote cooperation,” not a “regulation to enter into agreements,” and I think that’s the misread you are engaging in.
Chairman Collins:
Now what’s wrong with that language that’s there, that you proposed deleting? Do you still propose to delete it?
Joe Guild:
Actually, I think Mr. James is correct with the testimony he just gave on the word “such” that gives the flexibility we were looking for by using the word “may,” and we would have no problem with deleting the language that we proposed to delete. We could leave it as is; undelete the deletion (Exhibit C).
Chairman Collins:
We’re okay on leaving those lines in. We understand the intention.
Joe Guild:
The only thing, therefore, at the top of page 2, that we are still proposing to delete, between lines 1 and 2-10 [page 2], are the first two lines at the top of that page.
Chairman Collins:
That can go either way; everybody but Assemblyman Mortenson has said they could go either way.
Assemblyman Mortenson:
If Mr. James says he has no problem with that, I have no problem with that.
Ron James:
No problem with deleting the first two lines.
Chairman Collins:
Now we’re down to line 16, on page 2, where you have deleted “must” and put “may” – “The stewardship program may. . . a, b, c,” et cetera.
Alexis Miller:
I’m actually going to defer to the lawyer on this one since it’s a little more complex.
Joe Guild:
The proposal in paragraph 3, Section 1, subsection 3, starting at line 16 on page 2, is to not make this stewardship program mandatory, as you can see, with the addition of the word “may” in place of “must” on page 2, line 16, and the additional clause beginning on line 19 continuing down to the semicolon at the end of that clause. My client in particular, and the Mining Association’s concern in general, is that this remain restricted to the lands described in the amendment, for the reason that we’re already required under NEPA, the National Environmental Protection Act, to do cultural assessments on public lands, that is, federal lands, for the purposes of this discussion. We don’t see the need for the state statutes basically duplicating the federal requirement.
Assemblyman Mortenson:
Mr. Guild, when you change a “must” to a “may,” in my estimation, it guts the whole bill. You may as well not have it. I can agree with your language in the green and deleting the sites that are, and so on, maybe we could negotiate here; we’ll take your green stuff if you leave the “must” (Exhibit C).
Chairman Collins:
You’re only addressing the duplication, is that correct, Mr. Guild?
Joe Guild:
I don’t agree that it guts the bill; I think the intention is still there. The stewardship program is created. My client in particular feels that this is a duplication of requirements that we already have to comply with on the federal level. We’re willing to work with the Subcommittee, as we have, by presenting these amendments, if they’re acceptable to the way we view this bill. I really think the word “may” is something that we’re very stuck on.
Chairman Collins:
By putting “may,” then you’re leaving out public lands, because you claim that there’s a federal law, but that’s for a different purpose.
Joe Guild:
I don’t know that it is for a different purpose. Cultural assessments are required under NEPA [National Environmental Protection Act]. I understand the intent of this stewardship program, and Mr. James and I and some others had a conversation in the hallway before the Subcommittee meeting. We are already required to not only do assessments, but if cultural resources are found, then we’re required to either mitigate damage to those or protect them in some way under an environmental impact statement requirement whenever we do these mine developments and reclamation projects. We believe, from the mining industry’s point of view, that we’re doing our part to protect these resources. So yes, the short answer is, we do believe that there’s some duplication being created here.
Ron James:
The way I understand this bill is that it is not intended to eliminate teeth in any kind of governmental agency, or to replace teeth that are already in any kind of governmental agency. The intent of this bill is to create a mechanism to facilitate an agency’s creation of a group of volunteers to go out and address vandalism, for the most part. I would not hang myself on the word “must” here, simply because the degree to which we can pursue that will not be limited by our inspiration, but rather by the simple fact of one person trying to implement this. “May” may very well be the word that we want, rather than “must.”
I do have a problem eliminating the federal lands, because then we’ve introduced a restriction on what the agency can do. The agency can now work with federal land managers to accomplish a great many things. If you have a bill that says we can only do this on state, tribal, and whatever else he listed in green, that would be restrictive language that I would think would not be prudent to create here.
[Ron James] The fact is, the mining company has been, I think for the most part, wonderful stewards of the land. They’ve worked with the federal agencies marvelously, and they have worked to comply with the National Historic Preservation Act. The National Historic Preservation Act does not create a stewardship program; the stewardship program is intended to get trained volunteers out on public lands to discourage vandalism, some of which may very well be on land that mining companies want to use, and maybe that sort of vandalism would be a detriment to that use as well.
There are two different kinds of programs, and I would have major problems with restricting the access of that program to federal land, because it might imply restrictions for my agencies otherwise. “May” to “must,” “must” to “may,” that’s fine.
Assemblyman Mortenson:
Mr. James, you were saying, though, that “must” to “may” is okay, but you said that you felt that you could not go along with restricting you from federal lands. Do you see a point, a part, in there that is restricting you?
Ron James:
The proposal in green for 3a (Exhibit C), that talks about “on State lands, Native American tribal lands, and, with the consent of the land owner, private lands…” by implication means that this cannot work on BLM [Bureau of Land Management] land, on Forest Service land. And that, my understanding from the need of our constituency, especially in the southern part of the state where vandalism occurs, the very need of having those trained volunteers out there is so that they can inhibit vandalism on BLM land, on Forest Service land, just precisely that sort of land.
Assemblyman Mortenson:
We have just dedicated the Sloan Petroglyphs, which are federal land; one of the projects of this will be to monitor the Sloan Petroglyphs, which are on federal land, a very valuable resource which, if the mining industry tells us we can’t do this, can go down.
Ron James:
By implication, those amendments would mean that these volunteers could not be sent out to the Sloan Petroglyph site.
Chairman Collins:
How do we bring them back into this, Mr. Guild?
Joe Guild:
Let me assure you, the Committee, and everyone in the audience and the entire world, it’s not the mining industry’s position or desire, or anything that might be implied, to promote destruction of, not only the Sloan Petroglyphs, or any other valuable cultural resources in this state. Here’s the problem: I think using the Sloan Petroglyphs as the example shows why this bill, in our estimation right now, is unworkable. We have population pressures – and I’m very familiar with the Sloan Petroglyph site – which are being brought to bear on those kinds of cultural resources, in a very fast growing, relatively small political boundaried county in a very, very, large state, which is Clark County.
So if the problem is vandalism in this urban interface - suburban interface, then maybe that’s what this bill ought to be restricted to. Because in northeastern Nevada and central Nevada, where we have these large mining projects, again, NEPA [National Environmental Protection Act] requires us to do cultural assessments, and then if cultural resources are found we’re supposed to protect, mitigate, monitor activities, do all the things necessary to take care of those cultural resources, and we do, as required by the environmental impact statements that go along with these projects. Perhaps restricting this to a county of 400,000 or more in population might be the answer to this.
I know what Mr. James is going to say, because we talked about this in the hallway, and he doesn’t think that’s necessarily a good idea.
Chairman Collins:
Mr. Guild, how do we do nonmining land? There’s a whole lot of federal land that’s not mined.
Joe Guild:
Every piece of public land, including – actually, in fact, a completely surrounded piece of BLM [Bureau of Land Management] land in urban Clark County, is subject to the 1872 Mining Act. I can go down in the middle of Las Vegas and file a mining claim. That’s an absurd example, but it shows you that I don’t know that we can restrict it in the way you’re thinking about.
Chairman Collins:
Mr. James, how would you address any land that’s not currently filed on, and then you would just slip this in and out as it’s filed on; can you legislate that?
Ron James:
I can’t imagine. As I’m sitting here, though, I’m wondering if there wouldn’t be room to talk about a pilot program for counties with populations in excess of 200,000. However, I don’t know how the mining industry would feel about viable mining land in northern Washoe County, or in rural Clark County, assuming that they aren’t going to start staking claims down on the Strip. Maybe we should be talking about pilot programs and show how this program can work, and maybe the greatest need is in the urban setting. I would have to defer to the Assemblyman, in this case, as to what the inspiration for this bill was and whether you’d find that excessively restrictive.
Assemblyman Mortenson:
I really feel that is restrictive. We have wonderful cultural resources all over the state. I’m really somewhat angry at the mining industry. I think it shows a selfishness that they are willing to let cultural resources – are willing to not let a cultural resource protection program go through because they might want to mine somewhere where the protections exist.
Chairman Collins:
Assemblyman Mortenson, I’m not sure I read that in their comments; maybe that was your interpretation. I think what they’re saying, that by federal law, they already do an extensive cultural investigation, exploration, and detection and preserving of that if it’s found. I think we’re dealing with “whose ball do we want to play with.” We’re both protecting these things; it’s just a matter of what color our uniform is going to be. It’s already being done, in a sense, by mining in those areas where they claim mining; outside of those areas, “why can’t we protect them” is your intent, and the answer is, we can up until a claim is filed, and then it would switch.
Assemblyman Mortenson:
If that’s true, that would be fine, but I didn’t hear that.
Chairman Collins:
Did I miss something?
Joe Guild:
If I simply file a claim on public lands and pound a location stake in the ground, I go register that claim and its location with the county recorder in the county in which it is located, I’ve basically done the first step in compliance with the 1872 Mining Law. Correct me if I’m wrong, Mr. James, but I don’t think that that action, pounding the stake in the ground, requires a cultural assessment. If I’m going to do any exploration, if I’m going to drill with a big drilling rig and create a pad upon which that drilling rig sits and do core sampling, that will require an environmental assessment, at the minimum, and at least a minimum cultural exploration and assessment at that stage, if it exceeds five acres.
[Joe Guild] My point, to answer the question, is: we are under a federal law, which seems to be working, to protect, preserve, monitor the protection and preservation, mitigate the damage to cultural resources. We’re not against any of those activities, but we’re asking for this restriction and this amendment because we believe that it is duplicative, the bill is duplicative without the amendment (Exhibit C). I’m repeating myself now, so thank you.
Assemblyman Mortenson:
Mr. Guild, I have no qualms whatsoever about any land that mining is working on. You are great stewards of the land, there’s no question about it. I know you are bound by regulations to take care of cultural resources. I know you’d do it even if you thought you could get away with it; you’re just good stewards. I have no problem with the land that you are working. What I am worried about is the land next to where you’re working, where there are some valuable resources, it’s federal land, and our stewards cannot go there and work on that because of the restrictions you’ve put into the rule, as I understand it. You can correct me.
Chairman Collins:
We’re going to run out of time, so let me bring up this point. On line 23 on page 2 (Exhibit C), the proposed amendment from Ms. Miller, where it says “Establish requirements for reporting damage…” can we change that to vandalism, and get rid of the word “damage” on line 23, and that would be in common with line 24 where you used “vandalism” instead of “damage”? My question is, Assemblyman Mortenson, everything would be resolved with the exception of, on page 2, how you would address land outside what’s described in this amendment?
Assemblyman Mortenson:
Right, that’s the only hang-up so far.
Chairman Collins:
We’re going to leave you all to figure that out. Is that the only issue left? The Subcommittee on A.B. 131 is adjourned. [Adjourned at 2:30 p.m.]
RESPECTFULLY SUBMITTED:
Erin Channell
Committee Secretary
APPROVED BY:
Assemblyman Tom Collins, Chairman
DATE: