MINUTES OF THE meeting
of the
ASSEMBLY Committee on Natural Resources, Agriculture, and Mining
Subcommittee
Seventy-Second Session
April 1, 2003
The Committee on Natural Resources, Agriculture, and Mining Subcommittee was called to order at 7:01 a.m., on Tuesday, April 1, 2003. Chairman John Carpenter presided in Room 3161 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
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.
COMMITTEE MEMBERS PRESENT:
Mr. John C. Carpenter, Chairman
Mr. Jerry D. Claborn
Mr. Pete Goicoechea
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Linda Eissmann, Committee Policy Analyst
Erin Channell, Committee Secretary
OTHERS PRESENT:
Terry Crawforth, Administrator, Division of Wildlife, Nevada Department of Conservation and Natural Resources
Gregg Tanner, Chief, Game Bureau, Division of Wildlife, Nevada Department of Conservation and Natural Resources
Greg Smith, Sportsman
Chairman Carpenter:
We’ll call the meeting to order of the Subcommittee on A.B. 301. Does everyone here have a copy of the proposed amendment (Exhibit C) that we handed out at the hearing? I think we have some coming; they should be here fairly soon.
Assembly Bill 301: Revises provisions concerning compensation from Board of Wildlife Commissioners for damage to certain property or land caused by certain animals. (BDR 45-883)
Chairman Carpenter:
In regard to the original bill, what was stricken was the part on page 2, lines 22 and 23, which talked about the 35 elk. I was mistaken; I thought the incentive tags were given the same way as the ones for antelope and deer. But there’s a formula that the Division has that takes into consideration how many elk are out there and how many are on private land. It seemed to me that the formula is working, so, consequently, we took out all of the part regarding lines 21-23. We also took out parts on page 3, lines 22-27, which talks about money that could possibly go to the grazing boards. I really don’t know how that got in there; it wasn’t part of the bill originally. I didn’t think it added anything to it, so that part was also taken out.
Assemblyman Goicoechea:
We might need to go back – some people have the amendment and some people have the bill, so the lines aren’t matching up. [Ms. Eissmann stated the numbering might be off because of additions.]
Chairman Carpenter:
I think everyone here is familiar enough with the bills to see what was taken out. Hopefully we’ll get those amendments quickly. We also took out the reference to the State Grazing Boards on page 3 and again on page 4. What I wanted in the bill itself was to make sure that we can repair damage to fences on public lands. As you know, we’ve been going through all of these hearings on elk management areas. I believe it’s already in the law, but in order to make sure that it’s there, this is the reason it was included to, “including, without limitation, fences; prevent or mitigate damage to fences on public lands. . .” We added that part so now there’s no question.
[Chairman Carpenter] When we’re talking about the elk management plans, people know the money in the Elk Damage Fund can be used to repair fences on public lands. Another problem that I saw regarded water. If elk got in and got near or in a spring – we all know when they’re rutting, the old bulls get into these waters and raise the devil. I thought we needed something in here so there was no question that those monies could be used to “Construct fences around sources of water on private lands or public lands if there has been damage,” then we added, “by elk to the area near such sources of water and if water is made available to livestock and wildlife outside the fences. . .” We absolutely don’t want to fence the animals away from the water.
That is the way the bill will read now. I think Assemblyman Goicoechea has a question about whether we should put something in that if we’re going to fence around the waters that we need the approval of the landowner and permittees. You all know the way the legislation is now; it says, “The Commission shall adopt regulations governing the disbursement of money. . .” There will be regulations to come out regarding fencing on public lands and fencing of water. The Commission will have to come up with those regulations. That’s where we’re at, and if anyone has any questions, feel free to express your concerns, likes, or dislikes.
Assemblyman Goicoechea, why don’t you go ahead and express the concerns that you have, or maybe what you might want to have added to the bill.
Assemblyman Goicoechea:
My concern is that we’re talking about private property, and/or public lands, and water rights on those public lands. It could be a water right held by the Forest Service, depending on the area. I would like to see some language in there that at least requires concurrence. If you’re the owner definitely, you should have the right to say how and where they fence your property. But also, if it was in an adjudicated grazing allotment or you have held that water right, you should have the right to say, “How about we fence it here and in this way?” My big concern, as we’ve all seen it happen, I don’t want to see this go from something to protect water to something that fences off a quarter section of a riparian area in a canyon and force livestock to trail on the edges.
I want to make sure there’s concurrence between NDOW [Nevada Division of Wildlife] and/or that permittee on where and how they fence those waters, and whether they place a water trough as the device to water the livestock. I think they have to be involved and I would like to see some language in there that allows them to have the right of approval before they actually – technically you’d need it anyway if it was a water right.
Chairman Carpenter:
Does anyone have any heartburn if we add something like that to the bill? It would be something with the approval of the landowner, permittee, or holder of the water right. Are there any questions or comments on that?
Terry Crawforth, Administrator, Division of Wildlife, Nevada Department of Conservation and Natural Resources:
[Introduced himself] I have with me Mr. Tanner, Chief of our game program who operates this particular program. We appreciate your willingness to take a look at some amendments to the bill. I would concur with Assemblyman Goicoechea that certainly before we go fencing things, especially on private land, we ought to have an agreement on what’s going to be done there. The language concerning public lands, where there is a water right I think we’d prefer the water right language; I think that’s a good suggestion.
Gregg Tanner, Chief, Game Bureau, Division of Wildlife, Nevada Department of Conservation and Natural Resources:
[Introduced himself] Based on our experience with privately held water rights, often times it’s a portion of the available water. I think we have some existing language in the state water law that allows wildlife access to those water sources. In the interests of performing our jobs and functions, we’d want to take that aspect of it into consideration. It would require an on the ground inspection and some concurrences as to the protection of that water source. So our main concern would be to have an on-the-ground inspection with the landowner, or land managing agency if that was appropriate, to examine the water source, how it was adjudicated, what wildlife impact and/or problems were present, and come to some type of concurrent agreement as to how to provide protection to the water source for everybody’s benefit.
What we’re concerned about is inadvertently precluding wildlife access to that water. Something like that needs to be well designed, well thought out, and that would be our primary concern.
Chairman Carpenter:
We want to make the waters better for wildlife and livestock. Maybe you and Ms. Eissmann could work together on this amendment to get the things in there that you talked about? Would that be all right?
Assemblyman Goicoechea:
Mr. Tanner, as you stated, under state law, wildlife has the right to access any water, whether it’s permitted or not. In this scenario, we’re talking about fencing and moving that source, or the device, where we’re going to water this livestock. At that point, I think it gets a little weak. At that point, you’re going to move the permitted access to the water; wildlife can go anywhere as long as the water is available. I think you’re getting a little gray, and I want to make sure those water rights are protected.
[Assemblyman Goicoechea] Some of the issues that I’ve had come from home are – we’re dealing with this bill. We’re going to have damage, and any of the people that are involved in the central Nevada elk plan say, “Why can’t we use some of this funding to step out ahead and maybe do some of this fencing of waters and forage rehab to avert the problem, rather than. . .” This bill technically addresses the damage we know is going to occur; that’s how we’re looking at it. A lot of people in eastern Nevada, we do have this fund and if there was the ability to move ahead and maybe do some forage management and some fencing on some of these issues before we actually ran into a problem it might be better for everyone.
Terry Crawforth:
I would agree with Assemblyman Goicoechea. I think that’s the very purpose of these elk plans is for us to design a plan with everyone at the table and proactively look for ways to manage all the uses of public lands. Proactivity, I think you’re right on.
Chairman Carpenter:
Is there any reason – say that if we were putting elk into an area that these funds couldn’t be used, or are they just for damage? Could you use those funds to actually go into an area and improve waters? Would this provide for that, or would we need to add that in?
Terry Crawforth:
We can do some of that because we regularly use the Fund, up towards $75,000 a year, to build exclusionary fencing. To date, that’s primarily around private land crops, haystacks, et cetera. Protecting waters and such, we’re already covered there. If it is to do a range rehabilitation project for the enhancement of elk and grazing, and there’s no thought of damage per se, then we’re going to have to look for other sources of funds to be able to do that. We’ve done that too, particularly with the land managing agencies.
Assemblyman Claborn:
Mr. Crawforth, could you explain to us how the Elk Fund is funded, how it’s dispersed, and if these funds we’re talking about would actually cover the costs of damages to what we’re considering?
Terry Crawforth:
Everybody who applies for an elk tag in Nevada is assessed an additional $5 on their application fee. That goes into the Elk Damage Fund. Those funds, as a separate Division budget, budget annually for some funds to do exclusionary projects where there has been consistent and chronic concerns about the crops. We have used them in relation to waters and crops. We also pay damages; if there’s “x” amount of crop or bales of hay, we evaluate that, come to an agreement with the landowner, and write them a check. There are a considerable number of Board of Wildlife Commissioners regulations governing this particular program, whether it be the disbursement of the monies, payment of damages, and if damage claims get to a certain level on a certain piece of property, we do the evaluation to reimburse for those damages. If that gets to be over $10,000 on a particular piece of property, we have to clear it with the Wildlife Commission before we pay it; that’s in their regulations.
Assemblyman Claborn:
There’s not any additional money going into that, just the $5?
Terry Crawforth:
Correct. That Fund stands at several hundred thousand dollars, right now. We haven’t used – the Legislature provided, at the inception of the program, $50,000 from the General Fund as seed money, to get the Fund started. Our concern was that with expanding elk populations in Nevada, if a rancher late in the season has a bunch of elk descend on him and eat what last hay he has, he doesn’t need the money, he needs the hay, right now. We need to be able to react fairly quickly. We have not experienced that situation to date.
Assemblyman Claborn:
I was aware of that. I just wanted to make sure that was in the record for people who didn’t understand the situation we were in.
Chairman Carpenter:
Mr. Smith, did you want to make a comment?
Greg Smith, Sportsman:
[Introduced himself] One of the questions I had, and it’s a concern to the sportsmen actually out in the field, and you encounter this, off the cuff, is it looks like you’re going to do away with this area that’s tromped. That’s a good thing. At the same time, you’re eliminating a wallow; a wallow is an important thing to an elk. I would be concerned that you would eliminate all the wallows for the elk.
[Greg Smith] The other concern I had was the thought that, and it sounds like the Division is up on this, there are plenty of funds to fence these areas off. Not only install, but maintain these water systems. There’s going to be maintenance. Perhaps in the design of the construction of these water sources, they can design a wallow beyond that, while providing water downstream.
Chairman Carpenter:
When we put the amended language in where there has to be consultation with the Division, permittee, and land management agency that there will be provisions in there to maintain those improvements. That would be very important. That will come in the regulations if the Commission that adopts this. I believe that we’re covered there. There’s one thing we absolutely do not want to do, and that’s to deprive any animal of any of the water. We feel it’s important to protect it so it comes out in a pristine state as much as it can. That’s what I’m looking for, and I am sure the Committee is.
Greg Smith:
That’s all I had; thank you very much.
Chairman Carpenter:
Any other questions or comments? I think we all understand that Mr. Tanner and Ms. Eissmann are going to get together and come up with the language that we’ve been talking about. If someone would make a motion.
ASSEMBLYMAN CLABORN MOVED TO RECOMMEND TO COMMITTEE TO AMEND AND DO PASS A.B. 301.
ASSEMBLYMAN GOICOECHEA SECONDED THE MOTION.
Assemblyman Goicoechea:
I have one question, depending on where you’re at on which one of these bill drafts. We talked about, “caused by elk or game mammals not native to this state. . .” That gives me a little heartburn itself; I don’t understand exactly what that intends. On page 4 of the original bill, and several other places, I’m just not too clear about, “caused by elk or game animals not native to the state.” Does that mean elk and anything else? That’s how I read it.
Terry Crawforth:
That grows right out of the original statutory purpose for this bill; it was elk and animals not native. We don’t have any. Thought was if we want to bring in bison or some other things that you would enjoy. It was for big game animals not native to the state, and elk was the only one we had at the time. There’s another section of statute that already refer to that.
Chairman Carpenter:
Mr. Tanner, do you have a comment?
Gregg Tanner:
Just a point of clarification, so I know your direction prior to working with Ms. Eissmann on the amended language. I’m looking at page 4, line16. We’re primarily interested in protecting water at its source. I’m trying to ascertain your direction here. The purpose is to protect private or public held waters at their sources, to preclude access by elk or game animals not native to this state. We’re generally thinking about piping water outside of the source to make it available for livestock. Is that mainly the direction we’re heading, so as to not damage the source of privately held water?
Chairman Carpenter:
That would be my take on it. It has to be piped out and put in a trough. Otherwise it doesn’t do any good to fence it and then let it run out there. We’ve then got the same problem. I think it’s got to be piped out and put in a trough. We all know with the troughs you have to have the ladders for the birds and everything. It has to be done right.
Gregg Tanner:
That enhances my understanding so I can work with Ms. Eissmann on language. Thank you.
Assemblyman Goicoechea:
I believe we’re looking at Section 2, subsection 3(a)(1),
The regulations must: provide for the payment of money or other compensation to cover the costs of labor and materials necessary to prevent or mitigate damage to private property, privately maintained improvements and fences on public lands. . .
And then in Section 2, subsection 3(a)(2),
Construct fences around sources of water on private or public lands if elk or game mammals not native. . .
Is that where you’re looking, Mr. Tanner? [Mr. Tanner indicated it was.] So we all understand? If at some point, I think privately maintained improvements which would be a water trough I had a stock water permit on in some canyon, I would just like to see some language there that ensured that both the land management agency and the permittee who held the water right permit, and/or if it was private property, had the right to be involved in determining where that fence would extend. None of us wants to start a war over “you moved my trough.”
Chairman Carpenter:
I think an amendment will provide for consultation between the various parties.
Gregg Tanner:
Would you agree that such an agreement should be signed by each of the participating entities, in this case the private landowner, the State, and perhaps the land management agency in the form of a cooperative agreement to outline various aspects of what each will do to undertake that management effort?
Assemblyman Goicoechea:
Yes, Mr. Tanner, I definitely do. I would prefer to see it in writing and signed off and the plan agreed to just to avoid some conflicts. Many of these have 40 acres and it would be private property at that point, and I don’t think it requires the land management agency. It would be between the private property owner and the Division or Department [Division of Wildlife]. In those cases where it’s only a stock water permit, you have the water right. Section 4 would allow for you to have a water trough and pipeline in place. Legally it would require the signature of the land management agency, the water right holder, and Wildlife. I would agree to having it up front, cut and dried, before we start driving posts.
Gregg Tanner:
Mr. Crawforth reminded me that in virtually all these types of agreements we undertake with private landowners, we initially tie those up with a cooperative agreement. That requirement appears in our regulations, in all instances. I’m not saying, necessarily, it has to appear in statute, but that’s how we proceed, and everybody has a copy of that agreement and adheres to the various agreements. We’ll proceed accordingly.
Assemblyman Goicoechea:
The other issue out there, and I’m sure you’re aware of it especially in some of these forests, is livestock drift fences that are on some of these ranches that elk tend to flatten. I know this bill addresses that. I assume those too will require some type of cooperative agreement between the three entities: the permittee that is obligated to maintain, the land management agency, and the Department.
Chairman Carpenter:
Any other questions? If not, we’ll vote on the motion.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Carpenter:
Ms. Eissmann and Mr. Tanner will work together on this and get it so we can bring it to Committee as soon as possible and get it out. Thank you, everyone, for being here this morning, and especially our staff. [Adjourned at 7:30 a.m.]
RESPECTFULLY SUBMITTED:
Erin Channell
Committee Secretary
APPROVED BY:
Assemblyman John Carpenter, Chairman
DATE: