MINUTES OF THE meeting
of the
ASSEMBLY Committee on Natural Resources, Agriculture, and Mining
Seventy-Second Session
May 5, 2003
The Committee on Natural Resources, Agriculture, and Miningwas called to order at 1:34 p.m., on Monday, May 5, 2003. Chairman Tom Collins 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. Tom Collins, Chairman
Mr. Jerry D. Claborn, Vice Chairman
Mr. Kelvin Atkinson
Mr. John C. Carpenter
Mr. Chad Christensen
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Pete Goicoechea
Mr. John Marvel
Mr. Bob McCleary
Mr. Harry Mortenson
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall (excused)
GUEST LEGISLATORS PRESENT:
Senator Dina Titus, Clark County Senatorial District No. 7
Senator Dean Rhoads, Northern Nevada Senatorial District
STAFF MEMBERS PRESENT:
Linda Eissmann, Committee Policy Analyst
Erin Channell, Committee Secretary
OTHERS PRESENT:
Kevin Baily, President, Carson Fly Fishing Club
Rob Buonamici, Deputy Chief Game Warden, Operation Game Thief/Investigations, Law Enforcement Bureau, Division of Wildlife, Nevada Department of Conservation and Natural Resources
Tom Wilson III, Hale Lane, Attorneys at Law
Shaaron Netherton, Executive Director, Friends of Nevada Wilderness
Kaitlin Backlund, Lobbyist, Nevada Conservation League
Stephanie Licht, Legislative Consultant, Nevada Woolgrowers Association
David Thain, D.V.M., State Veterinarian; Administrator, Division of Animal Industry; Administrator, Division of Livestock Identification, Nevada Department of Agriculture
Don Henderson, Acting Director, Nevada Department of Agriculture
Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation
Keku Kamalani, Intern for Senator Titus, University of Nevada, Las Vegas
Charlie Fisher, Citizen
Betty Kelly, M.D., Wild Horse Advocate
Chairman Collins:
The Assembly Committee on Natural Resources, Agriculture, and Mining is called to order. [Roll was called.] Please excuse Ms, Ohrenschall today. Mark Committee members present as they arrive. We have a quorum. The first thing we need to do from the last meeting is to take a vote on S.B. 127.
Senate Bill 127 (1st Reprint): Makes various changes to provisions governing hazardous materials. (BDR 40-296)
Chairman Collins:
This was a simple bill. We didn’t vote on this because we were waiting on a two-thirds quorum to rescind actions and take care of S.B. 201 and S.B. 144. We were going to vote after I returned from the Senate hearing. It deletes the names of hazardous materials and allows them to put them back in. They can name new chemicals as they’re created rather than put them in statute each time. There wasn’t any amendment to this, I believe. [Ms. Eissmann indicated there weren’t any from the Committee.] This bill is ready to pass whenever you all are comfortable making a motion.
ASSEMBLYMAN MARVEL MOVED TO DO PASS S.B. 127.
ASSEMBLYMAN CLABORN SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Christensen, Mr. Mortenson, and Ms. Ohrenschall were absent for the vote.)
Chairman Collins:
Now we can move to today’s agenda. Is Senator Titus here yet? We’re going to open the hearing on S.B. 135; those in favor, Mr. Wilson, Mr. Buonamici, and Mr. Baily, if you would come up. You’re the only people I have signed in to speak on it. [Linda Eissmann, Committee Policy Analyst, provided Exhibit C, proposed amendments to S.B. 135 to the Committee.]
Senate Bill 135 (1st Reprint): Revises provisions governing killing or possessing of certain animals and penalty for violating those provisions. (BDR 45‑711)
Kevin Baily, President, Carson Fly Fishing Club:
[Introduced himself.] I’m a 23-year resident of Carson City, Nevada, representing our 40 members of the Carson Fly Fishing Club. [Mr. Baily began reading from Exhibit D, his prepared testimony.
Our members enthusiastically join all law-abiding hunters and ethical sportsmen who are in complete favor of S.B. 135 in its form passed by the Nevada Senate on April 11, 2003.
We do not agree with any amendment that would allow a first-time offender for the crime of poaching to be considered a gross misdemeanor. This very well-drafted bill reflects our belief that a crime such as poaching, that robs all Nevadans and sportsmen, should carry the full consequence of an “E” class felony, first time, every time. We do not make our decision lightly. We understand clearly the effect that a felony conviction will have on the life of the person found guilty. It is time that the criminal poaching element understands what a felony is, as well.
The sportsmen and judiciary have waited long enough to have a poaching law with teeth, that clearly spells out that poachers will not be simply given a slap on the hand. That justice will be served, whether the criminal resides in Nevada or any other state.
Chairman Collins:
We want to recognize Senator Titus as here, if you’d like to come up and join them.
Kevin Baily:
[Continues to read from Exhibit D]
As this honorable Assembly understands quite well, the English language is one of the most descriptive and specific on the face of the earth. The word “willfully” as used in this bill is powerful and essential to the entire bill. S.B. 135 is not designed to imprison a law-abiding hunter, but the willful act of a criminal.
Any hunter who is worried about accidentally shooting an unintended target better be under a partner’s close supervision, take a hunter’s education course quickly, or leave the firearm at home. To lessen any part of S.B. 135 would help to exacerbate an already difficult, expensive, and overtaxed Game Law Enforcement system. Poachers need to fear Nevada instead of laughing at game wardens, judges, and all Nevadans.
Senator Dina Titus, Clark County Senatorial District No. 7:
[Introduces herself.] At the suggestion of Mr. Wilson, I’ve brought to you S.B. 135 because I agree with the comments that were made by the previous speaker that we should mean business when we deal with poachers. This bill very simply changes poaching from a gross misdemeanor to an E felony. The reason for that is, if it’s an “E” felony, law enforcement will make it more of a priority, take it more seriously, and be able to extradite people who poach in Nevada and then run across the border. We want to do that for the benefit of the animals and the benefit of legal hunters in the state.
Rob Buonamici, Deputy Chief Game Warden, Operation Game Thief/Investigations, Law Enforcement Bureau, Nevada Division of Wildlife (NDOW), Nevada Department of Conservation and Natural Resources:
[Introduces himself.] I’m here to voice our support for the bill. The amendment that is included in the proposed bill, making it a felony on second conviction or offense, is a step in the right direction. We would be happy with any step in the right direction; that is basically where we’re coming from. Poaching in this state is a problem, has been a problem, and will continue to be a problem until we take a little more aggressive action towards poachers.
Tom Wilson, Hale Lane, Attorneys at Law:
[Introduces himself.] I’ve spoken with many of you already. I was involved in the drafting of this bill from the very beginning as a Deputy District Attorney for Washoe County. Because I’ve been a lifelong sportsman in the state of Nevada—I grew up hunting and fishing with my father and grandfather—I have a soft place in my heart for Nevada’s wildlife resources. I took it upon myself to be the liaison officer between the D.A.’s (District Attorney) Office and NDOW. It was in that capacity that I served them; they would come to me with questions about searches and seizures, and they would give their cases to me for prosecution. This was in Washoe County.
As many of you know, we have an antelope that was poached out of season. This would have been about two summers ago. It was brutally slaughtered. It had to have been shot five times with a 22-gauge. The caliber of weapon was not as powerful as one would hope if they were really going hunting. Law enforcement investigation led to the arrest of the perpetrator. The perpetrator, unfortunately posted bail, and, before he could be brought forward for the preliminary examination, he jumped bail.
There’s a current active arrest warrant out for him, but it’s only extraditable in the state of Nevada, because it’s a gross misdemeanor. Let me explain what this means. When I say it’s only extraditable in the state of Nevada, I mean only Nevada law enforcement or agencies in the state of Nevada are currently looking for him. If he’s pulled over for speeding, for example, in Henderson, the fact that there is a gross misdemeanor warrant for his arrest will pop up on the computer, and he’ll be taken into custody at that point in time. If, however, he’s pulled over for speeding in Oregon, the arrest warrant for the gross misdemeanor will not be placed in the NCIC, the National Crime Information Center, computer. The law enforcement officers in Oregon will have no idea the people in Nevada are looking for him.
The driving force behind this bill is twofold. One was to insert the term “willfully” to make the bill constitutional (Exhibit E). Quite frankly, the current law, I believe, doesn’t take much of a lawyer to take a look at it and realize it’s unconstitutional. We need to insert the term “willfully” into the current law in order to bring the full force of the law against poachers. The other part of it was to enable law enforcement to be able to reach out across state lines to bring poachers back. There is one way to bring a poacher back right now, or any person who is accused of a gross misdemeanor, across state lines. That’s by use of what’s called a Governor’s Warrant of Arrest.
The long and the short of it, basically, is this: we ask our Governor to contact the governor in the receiving state to tell that governor that we would like to extradite a citizen of that state. This presupposes one important factor; it presupposes we know where the person is. For example, the person who shot this antelope was a resident of Reno, Nevada, but I have no idea where he is now. He could be in California, Oregon, or Colorado. So getting on the phone with Gray Davis, the Governor of California, won’t do any good if he’s in Colorado. The advantage of the Category E felony is, of course, that it pops up on the NCIC (National Crime Information Center) computer; then, wherever he happens to be pulled over, law enforcement immediately knows that Nevada wants to extradite him.
[Tom Wilson continues.] That’s the driving force behind the current bill as passed by the Senate. Taking a look at the mock-up amendment, page 3, for S.B. 135 (Exhibit C), I do note a couple of things. First of all, for everybody’s edification, the draft amendment would make the first offense a gross misdemeanor and the second offense a felony. A couple of points about that: First of all, it still gives us the problem with extradition; second of all, the way it’s written, there is a section in here which is redundant. The matter of language clean up would probably have to be addressed.
Section 2, subparagraph (b), says “a ‘Category E’ felony for a second or subsequent offense, or if more than one animal is involved in the first offense.” If you look down to the next paragraph, Section 3, line 16, the current bill says, “If a person kills more than one animal, in violation of subsection 1, the court shall consider that fact as an aggravator in determining the person’s sentence.” The multiple shootings were actually taken into consideration by this language, which is why that section is in there. My recommendation is that, if this Committee is going to entertain this particular amendment, they take a look at the language of those two sections.
I understand that, through the course of discussion on this bill, there have been some people who have been concerned and asked, “What do you do about the 18-year-old kid who has a valid doe tag and gets a case of buck fever and shoots a buck?” Should that be a felony? I believe that was the driving force behind the current amendment. In any good compromise situation, I think it’s important to take a look at everybody’s concerns. It’s also important to understand, and I think Mr. Buonamici could give you better numbers on this, the national average for the class of hunters between the ages of 18 and 25 is 10 percent. We are talking about a relatively small number of people.
I can tell you, as a matter of personal entry from hunting with a lot of young hunters, I enjoy taking the young hunters out into the field. From my point of view, they are the safest, most law-abiding people out in the field, because they’ve recently graduated from hunter safety. These are the people who never load their weapon until they’re ready to shoot, never point a gun at anything they don’t want to shoot, and abide by all the laws there are in the field. It’s not the 18-year olds, to be honest with you, we have to worry about. It’s the people much older who have been doing this for a long time.
[Tom Wilson continues.] I’m here to testify in support of the bill. I’m here to testify in support of any of the amendments that the Legislature wants to come up with. My purpose is to create a lawful and constitutional poaching law. That’s the driving force behind my action on this bill. In looking at the compromises, it’s also important to understand that good compromises address everyone’s major concerns. If a major concern happens to be, “What do we do about the 18-year old kid?” then let’s address that. If a major concern happens to be, “How do we deal with these people who are arrested for poaching or are cited for poaching but jump bail?” then let’s address that. There has to be some type of middle ground between the two.
Assemblyman Claborn:
It’s my understanding there’s another category between a gross misdemeanor and an “E” felony. If I’m correct, it’s called a wobbler. Could you explain that to the Committee?
Tom Wilson:
A wobbler is a law school term; I don’t think you’ll find it in many of the dictionaries. A wobbler is a crime that is either a felony or a gross misdemeanor. Nevada has only a couple of wobblers on the books, but California has a whole bunch of them. For example, Nevada’s wobblers would include the attempted possession of a controlled substance. The advantage to a wobbler is that the final say is with the judge. The judge can determine, “This is a very aggravated case; it should be a felony.” Or, the judge can determine, “This is a minor case; it should be a gross misdemeanor.”
The advantage of a wobbler in this type of a situation is that you put everybody’s concerns and everybody’s driving force behind the bill on the table. You want a bill that allows for extradition, but you want to be able to protect the 18-year old kid. You want a fair and honest bill. The advantage to the wobbler is it may not be what everybody wants, but it meets everybody’s minimum demands. For example, let’s use my antelope poaching case. As a prosecutor, I can file it as a felony. I can put the information out on the NCIC (National Crime Information Center), the person could be arrested in Oregon and brought back to the state of Nevada to answer to the people of this state for his crime.
[Tom Wilson continues.] The D.A. decides, “This really is not one I want to plea bargain down.” I have to state, for the record, that plea bargains happen, there are a lot of people for it and against it. It is a reality in our criminal justice system because the DA’s offices are slammed. Plea bargaining is a fact of life. If the D.A. decides, “No, I don’t want to plea bargain this case,” it goes to trial, and for the sake of argument, a jury decides, “We want it to be a felony;” the judge can still be the final safety valve and say, “This is an 18-year-old kid; I want to protect this kid; I don’t want him to be saddled with a felony.” The judge can still, after all of that, sentence the person for a gross misdemeanor.
That’s the advantage of the wobbler; it adds one more safety valve, but it still allows prosecutors and law enforcement to reach out across state lines and pull somebody back in. There are going to be a lot of people watching and listening to this hearing. I know a lot of law-abiding sportsmen are going to be watching, and I’d imagine a lot of nonlaw-abiding sportsmen will be watching as well. I’ll leave it in your hands.
Assemblyman Marvel:
Who proposed the amendment, Chairman Collins (Exhibit C)?
Chairman Collins:
I did.
Assemblyman Marvel:
Any particular reason?
Chairman Collins:
Yes. I had phone calls and e-mails from several people who felt that the “willful” language probably brought it more in line with protecting you from hitting a game animal while driving down the road and being charged with a crime. The other side was how many people are arrested each year for poaching, how many of those arrested skip their bail, and how many go to another state. The incidents mentioned in testimony of young people just starting to hunt who shoot into a herd, have a doe tag, and accidentally hit a buck; or vice versa—that felt like they’re busted for a felony and, going to the judge in one part of the state might get a different outcome from a plea bargain or lack of one than in another part of the state.
For consistency, I proposed the amendment to the Committee just to get it out here in front of this meeting rather than waiting to discuss it here in the meeting and then having to wait for it to be drafted and then voting later.
Assemblyman Marvel:
Would there be anyway to get the wobbler provision in there?
Chairman Collins:
The plea bargain is already available on either case.
Assemblyman Marvel:
The wobbler can go both ways.
Chairman Collins:
The gross misdemeanor can go to a simple misdemeanor by plea bargaining to a judge, and so could the felony go to a gross misdemeanor.
Assemblyman Marvel:
The wobbler gives you a lot of discretion, as I understand it. Is that correct, Mr. Wilson?
Tom Wilson:
That’s correct. The wobbler would give the judge final discretion to take a felony conviction and knock it down to a gross misdemeanor.
Assemblyman Marvel:
That’s something we may have to take a look at.
Chairman Collins:
I discussed the wobbler with a couple of hunters as well who were interested in seeing if that would be an issue for a provision.
Assemblyman Carpenter:
The “Category E” felony, the judge is required to give them probation, right?
Tom Wilson:
That’s correct. A “Category E” felony, the judge, barring certain circumstances such as a second or third felony conviction, or if the person was already on a felony probation when he was convicted, barring those circumstances, the judge does not have the legal authority to put anyone in prison for a “Category E” felony.
Assemblyman Carpenter:
But they could put you in the county jail on a gross misdemeanor.
Tom Wilson:
They could put you in the county jail on a gross misdemeanor. The judge could also put someone in county jail for a Category E felony. The way that is done—usually the way that I’ve seen it done, where a judge would suspend a felony sentence of the prison term, and as a condition of that probation, the person would have to serve 30 days in the county jail. I’m just pulling 30 days out of the hat. A judge could put, even on a “Category E” felony, someone in jail.
Assemblyman Carpenter:
Not too likely, right?
Tom Wilson:
To be honest with you, in the years that I was a prosecutor, I don’t think I ever saw it done.
Assemblyman Geddes:
I want to make a comment; it’s not always the 18-year-old. I went hunting with a couple of friends, both wildlife biologists, and one was on his first deer hunt at the age of 30, and he had that magic bullet that went over the back and hit the deer behind it. He ended up in the wrong there. He did the right thing and turned everything in and took his lumps for it. There are people who are completely conscientious who could fall under this provision. I’ll tell you, I have some concerns with it being a felony right away, and it’s because of that. You do have people who are looking to do the right thing and will come in and self-report. They’ll lose their hunting license privileges, lose their rifle, and, possibly, lose their truck, but they realize that’s what you do when you hunt game. I just wanted to state that.
Chairman Collins:
How many poachers have you caught in the last year, two years, and three years?
Rob Buonamici:
In the last year, we have documented approximately 29-30 deer that were poached. There have been studies done; I can’t say these studies are scientifically accurate. It’s really hard to determine how many critters are poached on a statewide basis, but all the studies indicate that 1- to 2 percent of what is actually poached is what game wardens discover. That’s what we learn about.
Chairman Collins:
How many did you arrest?
Rob Buonamici:
Out of that, off the top of my head, we’ve made six or seven arrests for big game poaching.
Chairman Collins:
There’s a case in eastern Nevada where three elk were poached and decapitated; nobody’s found anything because we believe they’ve crossed state lines and the federal government is involved. Is that correct?
Rob Buonamici:
That’s correct.
Chairman Collins:
Why would the federal government be involved?
Rob Buonamici:
It’s called the Lacey Act; it’s a U.S. Fish and Wildlife Service law. What that entails is anybody who unlawfully kills or possesses an animal and attempts to or transports it across a state line is guilty of a Lacey Act felony violation.
Chairman Collins:
Doesn’t the felony address the out-of-state issue that’s being brought up here?
Rob Buonamici:
It does to some extent; but it doesn’t when, for example, the animals are poached within the boundaries of the state, the animals are left, and the poacher then goes back to wherever he’s from. Then there’s no Lacey Act violation. He made no attempt to carry anything across state lines.
Assemblyman Conklin:
A comment and then a question for the prosecutor. With regards to my colleague from Washoe County, I understand, as a hunter for 20-plus years, that from time to time accidents happen. I guess we’re grateful—and this sounds terrible—that they’re animals and not people, because those types of accidents happen as well. We need to have a certain amount of forgiveness in us.
I’m curious, from a prosecutorial standpoint, and also maybe our Research Analyst can help, in Section 3, subsection 1, we use the word “willfully,” and I wonder if the bill might be helped along by using the word “intentionally.” I know it’s a minor question, but I think it gets at the heart of what we’re trying to capture here. You willfully pull the trigger on a gun, because you intend to kill something; it may not be the right thing that you kill. It’s different if you intentionally kill something that you know, legally, you’re not to be killing. Does that make sense? I know it’s a minor change, but I’m curious if that would have any sort of desired effect, from a prosecution standpoint, on the folks that you’re trying to get at.
Tom Wilson:
To be honest with you, yes, it would. Let me give you a little background from a prosecutorial point of view. There are three types of intent, and in every crime there has to be a union between the act and the intent. The Constitution says that or at least has been interpreted to say that. One is called strict liability in which there is really no intent that is necessary. Speeding is an example of a strict liability crime. We have very few strict liability crimes. You don’t have to intend to speed, just intending to drive and then driving over the speed limit is enough.
The next level is what’s called a general intent crime. A general intent crime is usually cued up in a crime bill when you see the word “willful.” “Willful” is actually misunderstood by most people because a “willful” act and a “specific” act are two different acts under the eyes of criminal law. A “willful” act, or a general intent crime, is one in which you intend the act, and the subsequent consequence is one that is foreseeable from that act. For example, to use Assemblyman Geddes example, if I were to shoot at a buck that is in a huge herd of deer, and I missed the buck but killed a fawn, it can be argued rather successfully, that the killing of the fawn was probably foreseeable because I waited until all the animals were grouped very tightly together before I pulled the trigger.
However, if I shot at a buck and there’s nothing behind it and the bullet goes into a bush, careens off of a rock, and kills a fawn off to the left, then that circumstance was pretty much unforeseeable. In that type of a circumstance, if there were a fawn there that nobody had any reason to anticipate, then the person would probably not be guilty of the “willful” act because the result was unforeseeable.
Now, the specific intent is an entirely different ballgame. If we put the words “intentionally killing,” those are the key words for a specific intent crime, and then the person must specifically intend to kill—that is to say the pulling of the trigger is unlawful. When you pull the trigger, that is unlawful. You don’t have a tag, you’re shooting at something you shouldn’t be shooting at, or whatever the case happens to be. That would take care of that.
Assemblyman Conklin:
Therefore, if we put the word “intentionally” in there, we’re getting at the criminals we want to get at. In some respects, it probably makes it a little bit harder to prosecute because you have more to prove, but those that have done a clear wrong, you’re going to be able to get them under this bill.
Tom Wilson:
Yes. Usually it’s not hard, in all the cases I’ve seen, to prove an intentional killing. If the person shoots the elk in the chest, it’s probably an intentional shot. If he shoots the elk in the thigh, then maybe there’s room for some interpretation that it was a missed shot. If I may follow up with one more point, the Chairman was asking earlier about the Lacey Act. If I may, the Lacey Act involves, and I want to make sure everybody is on the same page and the reason it’s a federal crime, the transportation of illegally obtained animals across state lines. Here’s the key, for the purpose of selling it, for the purpose of introducing it into state commerce.
If I were to shoot an elk, pull the ivories out for the purpose of taking them to another state or jurisdiction so that I can sell the ivories on the black market, that’s what the Lacey Act is all about. It is designed to curtail the black market for poaching wildlife. I just wanted to clarify that for the record.
Assemblyman Claborn:
Even if we add “willfully” or “intent” to the bill, and somebody just kills one deer, that would only be a gross misdemeanor. Now, if he kills four deer, the first time he goes out there, what would that be, still a misdemeanor?
Chairman Collins:
No, a felony, page 3.
Tom Wilson:
Under the current proposal, the multiple killings on one incident would be a felony. I will say, for the record, I don’t know if anybody has ever brought this up or discussed it, but as a prosecutor, it’s important for everyone to understand the process by which a crime is elevated for a second or subsequent offense. DUI (driving under the influence) is a classic example. DUI, domestic battery, those types of things, are a misdemeanor for your first and second offenses, but if you do it three times in seven years, that’s a felony.
What most people don’t understand is that the burden on the prosecution is relatively large in prosecuting a second or third offense DUI. One of the things the prosecutor must prove is an element of the crime, the subsequent offense, is that prior conviction. What has come down, and for those of you who serve on the Judiciary Committee as well, you may already know this, is that the certified copy of the prior conviction must contain certain elements, a waiver of constitutional rights or was the person represented by an attorney, for example. If it’s a case of the person pleading guilty to the first offense, did they fully understand that the first offense was going to lead to something more serious if they did it again?
[Tom Wilson continues.] If the prosecutor fails to prove any of those items, then the copy of their prior conviction gets thrown out the window and the subsequent conviction gets handled like a first conviction. I just wanted everyone to understand where that was coming from.
Chairman Collins:
There are six who either are, or have been, on the Judiciary Committee. The majority of us have been there.
Assemblyman Claborn:
A wobbler would be used to fit the punishment to the crime, wouldn’t it? Could you use it in a better sense?
Tom Wilson:
I would believe so, yes. The advantage of the wobbler is that it enables prosecution to reach out across state lines and pull people back. If it’s a case that has a lot of mitigating circumstances, we’re talking about an 18-year-old kid or an errant shot, or whatever the case happens to be, it’s always very difficult to draft a law that takes into contingency everything out there. We have to do the best that we can. The advantage to the wobbler is that it really puts the authority into the hands of the prosecutor and, most importantly, into the hands of the sentencing judge to make the final determination on a case-by-case basis how the penalties should be.
Assemblyman Goicoechea:
Could you define “wobbler” in a little better terms? I’m sure that this is not what you’re going to put in the bill draft. If you could really define that—I’m assuming, when you say “wobbler,” it can either be a gross misdemeanor or an “E” class felony. As we’re talking about wobbler, are we talking about maybe having a wobbler in place for second or third offenses?
Tom Wilson:
The keys in the statute that clue people in to the fact that it’s a wobbler are that the statute will read, “This offense is punishable as either a felony under chapter. . . or a gross misdemeanor under chapter . . . “ Those are the actual words that would be placed into the bill itself. So when someone is reading the bill, it could be either one. That determination, of course, is made, ultimately, by the judge regardless of what the D.A. wants to do.
[Tom Wilson continues.] To answer your question further, if we make a second, third, fourth, or fifth offense a wobbler, and we certainly could do that; that’s within the purview of this panel, my concerns are that it sends the wrong message, on a criminal level, that if you do it three, four, or five times, it’s still a minor offense. That’s my only concern about that.
Assemblyman Goicoechea:
I would think that, at that point, we have the wrong judge.
Chairman Collins:
We don’t want to wobble more than once, no.
Senator Titus:
That’s just what I was going to say. If you make the first offense a wobbler, I think that subsequent offenses or more than one animal should not wobble to be a gross misdemeanor but should automatically be a felony.
Chairman Collins:
Finally, Mr. Wilson, on the third page, Sections 2 and 3 had some double language, you thought? Page 3, Section 2, subsections 2 and 3?
Tim Wilson:
Section 2, subsection 2(b), of the current mock-up proposed amendment (Exhibit C) talks about the second offense—I’m sorry, where it talks about more than one animal being involved, specifically line 14. Looking down to what is printed in blue, starting with line 16, that whole paragraph of Section 3 talks about what happens if more than one animal is involved. Regardless, that would have to be cleaned up.
Chairman Collins:
These are conceptual amendments; as you know, our Legislative Counsel Bureau research staff does conceptual things for us, and our Legal Division fixes them. Are there any other questions from the Committee? You were the only ones here to testify, so thank you very much. We’re going to close this hearing.
We have Senator Rhoads in the audience and he has three resolutions to do. If we could go next with Senator Rhoads, and we can go right down: S.J.R. 3, S.J.R. 4, and then S.C.R. 7. We’ll open the hearing on those now.
Senate Concurrent Resolution 7 (1st Reprint): Directs Legislative Committee on Public Lands to continue study of wilderness areas and wilderness study areas in this state. (BDR R-717)
Senator Dean Rhoads, Northern Nevada Senatorial District (Elko, Eureka, Humboldt, Lander, Lincoln, Pershing, and White Pine Counties, and portions of Nye County):
[Introduces himself.] I’ll go with the agenda and cover S.C.R. 7 first, which creates a committee like we had during the last interim. We had a similar Subcommittee of the Public Lands Committee, and we probably hit 9 or 10 rural areas, including some of Las Vegas and Reno, and the wilderness issue was talked about a lot at just about every stop we made. As most of you know, wilderness study areas (WSAs) have to be managed as wildernesses until they are taken out or put into regular wilderness areas. That’s what we’re talking about here. There’s been very little emphasis on creating wilderness or taking any of these areas out. The Clark County Wilderness bill, last year, was about the first one we’ve had for 20 to 25 years.
This Subcommittee would review the WSAs and make a recommendation to the full Committee. Later, that full Committee would make a recommendation to the Legislature, and the Legislature would, in turn, make a recommendation to our Congressional delegation for a wilderness bill. Basically, it has to do with 5 million acres of federal public lands out there that is being managed today as wilderness, which means that multiple uses cannot occur, no mining, limited grazing, and so forth. Any questions on S.C.R. 7?
Assemblyman Claborn:
I was on that Committee, Senator Rhoads; it was very enlightening. As a matter of fact, there are suitable wilderness areas and unsuitable areas. The unsuitable areas, they just seem to hold them and collect them, and they won’t let them out for public uses. It’s a very worthwhile Committee, and I’d like to see it carried through. Thank you for bringing it in front of us today.
Senate Joint Resolution 3 (1st Reprint): Urges Congress to take certain actions concerning wilderness areas and wilderness study areas. (BDR R-716)
Senator Rhoads:
S.J.R. 3 also has to do with wilderness. We found out, with our hearings, that it was very difficult when they had the big fire seasons to put a fire out in a wilderness study area. This resolution urges Congress to take several specified actions in relation to wilderness areas and wilderness study areas in the state of Nevada, particularly to avoid unnecessary delays in releasing the wilderness study areas for multiple use, when it becomes clear that it has become quite obvious that they really don’t fit in the wilderness criteria. This one gives Congress some direction as to what they should consider when they’re deciding which ones of these wilderness study areas should be deleted.
Chairman Collins:
I’ve got a couple questions for the end once you’ve done all three.
Assemblyman Goicoechea:
We have a number of WSAs, wilderness study areas that have already been declared as nonsuitable. I was wondering if there’s language in here that would reinforce with Congress that, if they have been determined unsuitable by the federal agencies . . .
Senator Rhoads:
Ms. Eissmann was our staff person on there, and she might want to respond.
Linda Eissmann, Committee Policy Analyst:
Assemblyman Goicoechea, could you ask the question again?
Assemblyman Goicoechea:
Does the language in here allow for WSAs (wilderness study areas) that have already been determined to be unsuitable; is there language in here that then says to Congress to get those off the books?
Linda Eissmann:
Assemblyman Goicoechea and Senator Rhoads, I didn’t staff the Wilderness Subcommittee; Scott Young did. But my understanding of this situation and what these bills are addressing is that only Congress can remove a wilderness study area from a wilderness study designation. Only Congress can either make them a wilderness area or remove them and open them back up for multiple uses. My understanding of these resolutions is that it is to start looking at the wilderness study areas in different areas of the state and pursue with Congress that congressional action. It’s not for the Legislature to make a decision of which ones will be released. That’s a congressional action. Did I answer your question?
Assemblyman Goicoechea:
Yes, in part you did. But what I’m really asking is if the language is strong enough in here to say those WSAs that have already been decided as unsuitable, whether they be forest or BLM (Bureau of Land Management), that those would no longer be considered—just strengthening the language a little for us.
Linda Eissmann:
With all due respect, Assemblyman Goicoechea, whether it’s strong enough is up to you, not me.
Assemblyman Goicoechea:
Senator Rhoads, what do you think?
Senator Rhoads:
I have no problem if you strengthen it up. I think one thing we found out listening to all the meetings we had, and also talking to our Congressional delegation, was, that in the past, we tried to get the whole state into one bill, to do all the wilderness study areas. But I think that’s a mistake; we need to do it like Clark County did. Lincoln County, White Pine County, and Nye County are trying to put a package together today, just a smaller one. I think these resolutions encourage and educate the public, furnish accurate maps, and consider future population and growth when they consider those packages. That’s basically what S.J.R. 3 does. If you can put words in there that you think would strengthen it, I’m sure the Senate Committee doesn’t have a problem with it.
Assemblyman Goicoechea:
I really don’t have anything, but you’re aware, as most of this Committee is, that there are WSAs (wilderness study areas) across the state that have already been deemed unsuitable, and, yet, we still have them.
Senator Rhoads:
Correct. If you can put some words in there, that’s fine.
Assemblyman Marvel:
Senator Rhoads, have they identified the number of acres that aren’t suitable?
Senator Rhoads:
As I understand, there are 5.8 million acres in WSAs, but they’ve only identified 2.8 million of those 5.8 million acres as wilderness areas. There are probably 3 million acres that could be taken out, but Congress has to take them out. We can certainly recommend it to Congress.
Assemblyman Geddes:
Unless I’m jumping the gun, can we ask a question on S.J.R. 4 right now? Are they all mixed in now?
Chairman Collins:
We’re going into S.J.R. 4 as soon as questions are finished.
Senate Joint Resolution 4 (1st Reprint): Urges Nevada Congressional Delegation and Congress to take certain actions concerning wilderness areas and wilderness study areas. (BDR R-715)
Senator Rhoads:
Actually this is probably a little repetitious, but it just urges the national congressional delegation to enter in with the spirit of cooperation and mutual respect. We found, in our hearings, that there’s a lot of education going on that isn’t current as far as what you can do in wilderness areas and what you cannot do. We support them in the use of accurate maps for boundaries; legitimate roads were an issue: what is a road and what’s not a road; that should be defined before they start chipping away at some of these areas that they would recommend as a wilderness area. That’s what S.J.R. 4 does.
Assemblyman Geddes:
I have a question on Resolution 9, page 3, lines 29-31; it states, “Support the use of appropriately managed grazing and logging as integral tools.” Was the Interim Committee provided documents on how grazing does prevent fires? I’ve heard this, but I’ve never seen a document showing that grazing does prevent fires. I was wondering if the Interim Committee was given documents showing that grazing did prevent wildfires.
Senator Rhoads:
Page 3, lines 29-31: I don’t think we had documentation, but I think we had testimony that indicated the same thing. As a rancher myself, I recall that we had a big fire down in Boulder Valley one year, and we had a 12,000 acre field there. I flew down to look at the fire which was about 15 miles from my place, and actually that fire got right up to my fence line in this big field I had grazed, and it stopped right at the fence line, because that’s where I grazed. The land that was adjacent to me hadn’t been grazed, mainly because there was no stock water. When the bomber dropped some of the chemicals there afterwards, it was certainly a good example of where grazing did stop the fire.
Assemblyman Marvel:
Right up here at “C” Hill (“C” Hill is the foothill due west of Carson City that has an extremely large, white “C” on it) is a good example. A couple of years ago, I think it was the BLM (Bureau of Land Management) brought in sheep and grazed that hill; they haven’t had a fire since they grazed it off. That was the reason they brought them in.
Chairman Collins:
Newspaper articles show that that hill was kindling wood; they ran the sheep in and grazed it down. Carson papers will show you documentation on that on “C” Hill. We were all going to tell you about “C” Hill here in Carson City. Keeps us from losing this town like we almost lost Pioche.
For the folks’ interest in the audience, and the Senator’s, too, there is no one who marked to speak on any of these resolutions in the box that says “Check if Speaking” on the agenda today. I just wanted to make you aware, so if anybody did want to speak on this, I won’t close the meeting now.
I have some questions before we go to that, Senator Rhoads, because I’ve had some meetings with people in my office on these resolutions. One was the same issue Assemblyman Geddes brought up to us on page 3, lines 29-31, S.J.R. 4 where it said “grazing and other vegetation management.” That goes along or complies with BLM language. Are you familiar with that terminology?
Senator Rhoads:
S.J.R. 4, page 3?
Chairman Collins:
The language that addresses, as Assemblyman Geddes brought up, support of the use of appropriate, managed grazing integral to tools reducing. He was asking for some documentation, I believe, is that right? [Senator Rhoads indicated that was correct.] Would the words “and other vegetation management”—isn’t that something that’s in a BLM or Forest Service regulation that complies with it? I’m not sure where that comes from in S.J.R. 4.
Senator Rhoads:
“Support the use of appropriately managed grazing and logging as integral tools for reducing potential fire danger in wilderness areas and wilderness study areas.” I don’t think we took that out of a document or anything; it’s just a logical statement.
Chairman Collins:
Would you have any objection to adding “other vegetation management”? [Senator Rhoads said he would not.] That was my first question. Then, on the same resolution, page 2, line 7, “Whereas, because a considerable amount of federal public land in Nevada has been designated as wilderness areas . . .” would “2 million acres” be better than “considerable amount”?
Senator Rhoads:
I think it’s 2.8 or 2.6 or 2.4 million acres. It can be whatever you want that you put in there.
Chairman Collins:
I want to give it a kind of legislative opinion: does the wording of two point something million work better or does “considerable amount?” “Considerable amount” works better for me because it says all of it, but some people want to nail it down.
Senator Rhoads:
The BLM has already recommended two point something.
Chairman Collins:
Then on S.J.R. 3, I know you’ve gone into the fire prevention. I don’t think some people recognize how important that is. There, again, though, we also have “considerable amount.” There’s another term, “significant restrictions,” that was brought into question.
Senator Rhoads:
Also, on page 2 of S.J.R. 3, 1.9 million acres is the number of acres the BLM has recommended to be wilderness areas, page 2, line 10.
Chairman Collins:
That’s where we found that, of the 5 million acres that’s in the study. Down on S.J.R. 3, page 2, line 19, it says, “approximately 3.86 million acres’ somebody came in and brought me a number of 4.1 million acres. I don’t know how they came up with those numbers. I’m in the first reprint. [Senator Rhoads commented that he had the original version of the bill.] I think what’s happened, Senator Rhoads; I was giving you a bunch of proposed amendments, and they were mostly based on the original draft rather than the reprint. I think that’s where some of these numbers changed.
The other big question on this one would be on page 3, lines 31-33 where, “Oppose any efforts to conduct another inventory of the federal public lands in Nevada for the purposes of creating wilderness areas or wilderness study areas.” Would you oppose these at this present time because of what’s out there that they haven’t finished dealing with, so that no new study would start?
Senator Rhoads:
We felt that this wilderness area, it’s been what, 25 to 30 years? We surely don’t need to go in and study it any further; we can look at the documentation that they made, on both sides, and come up with a conclusion. Many of us felt that this could be another method to stall making a decision on what should be wilderness and what should not be.
Chairman Collins:
The last one on here, going back to page 2, line 38, “significant restrictions,” is that something drafting came up with?
Senator Rhoads:
I’m sure it was.
Chairman Collins:
On S.C.R. 7, there again they had differences, whether it’s 2 million acres or whether it was “considerable amount” and 4.1 million acres or 3.86 million acres. The only other thing on that one would be on page 2, and it would fit both S.J.R. 3 and S.C.R. 7, where it talks about “significant restrictions,” lines 7-8, would be “such designation or identification,” believed to “impose significant restrictions.” I am just trying to quantify that. Those are the only things that were presented to me; I brought those out because nobody had signed in to testify. Are there any questions from the Committee?
Assemblyman Goicoechea:
S.J.R. 3, the line you were referring to on page 3, lines 31 through 33, that would probably be the appropriate place to oppose any efforts to conduct another inventory without taking an action on those wilderness study areas that have already been deemed unsuitable.
Chairman Collins:
Can we put in the amendment from Assemblyman Goicoechea? [Senator Rhoads indicated that was okay.] Assemblyman Goicoechea has recommended an amendment there. Assemblyman Marvel, did you have one as well? [He indicated he did not.] There’s one more addition I forgot to mention. “Whereas, A reasonable amount of wilderness provides for a diverse spectrum of recreation opportunities in Nevada, is consistent with the tourism, and provides a place for Nevadans to get away from the pressures of urban growth,” the request was to be able to put that into the resolution so the urban people could go out and enjoy it.
Senator Rhoads:
I have no problem with that. They should be as close to urban areas as possible.
Chairman Collins:
Are there any more questions? Thank you, Senator Rhoads. We’ve still got one more bill, S.B. 486. If there’s someone here who didn’t get to testify, if they’d like to turn in written comments, we’d appreciate that, on anything we’ve heard so far. Is there anyone else who was planning to speak on these resolutions who failed to fill out the paperwork properly?
[Dan Musgrove submitted Exhibit F to the Committee.]
Shaaron Netherton, Executive Director, Friends of Nevada Wilderness:
[Introduces herself.] In fairness to Ms. Backlund, I was stuck in the traffic jam because of an accident up on Carson Pass. She signed me in and forgot the “x;” I would have done the “x.”
Thank you for allowing me a couple of minutes. I wanted to support Senator Rhoads; wilderness supporters participated in all of the meetings that he and his Subcommittee had scattered around the state. I wanted to thank him; it was a lot of work. I think all of us heard things and learned things that were pretty interesting.
There’s obviously a little bit of misconception on some of these numbers and what they all mean. In the packet you just got (Exhibit G), there is a sheet that says, “Nevada’s Protected Wild Places,” and it’s a list of all the designated wildernesses in Nevada; there are 2.0 million acres of designated wilderness, just a little under three percent of the state. There are 2 million acres designated. In addition to that, some of that area is Bureau of Land Management land, but the BLM did, back in the 1970s, identify about 5 million acres as having wilderness characteristics.
They looked at those over a period of a couple of years and made some recommendations. Of the 5 million acres of wilderness study areas that they looked at, all of those had wilderness characteristics. They weighed them with other things, and, 20 years or so ago, they made some decisions on what they thought ought to go forward as wilderness and what they thought should be released for uses other than wilderness. Over the years, things have changed.
One of the things that I think in these resolutions that’s so good is that it recognizes that things have changed. Senator Rhoads mentioned the Clark County bill that passed at the end of 2002, and I know there are a number of people around here who participated in that. I think Senator Rhoads rightly said that this was really a good model. It allowed people to take a fresh look. Obviously, the population in Las Vegas was exponentially bigger than it was 20 years before when the recommendations were originally done. I think that, as the state moves forward, looking at this, it would be helpful to put it in a present context versus what was looked at 20 years ago.
[Shaaron Netherton continues.] A couple of points that Chairman Collins brought up, and some of the amendments I e-mailed to you all this morning or late last night, so you have them electronically as well, I’d ask you to give them some thought. One of the things: Fire is very critical and we understand, in the wilderness community, that being able to fight fires effectively is important. The Wilderness Act allows for that; it’s not inconsistent with the Wilderness Act, for emergencies, to get in and fight fire with whatever is needed, whether it’s a bulldozer, retardant drops, or whatever is needed to fight that fire the Wilderness Act allows. I just wanted to make that really clear.
The other thing that there are also some questions about is grazing. The Wilderness Act (Exhibit G) clearly allows for grazing. Also in your packet, I put a piece of information on grazing; it’s the House Report No. 101-405. This is Congressional guidance on grazing in wilderness; this is what the agencies are held to. The wilderness community is also right there if the agencies are trying to get ranchers not to graze and not to be consistent with this. We’re going to be there working with the ranchers to ensure that they can do that.
This spells out pretty clearly that grazing can continue, vehicles can be used as necessary in wilderness to carry out purposes like getting sick animals out and placing large blocks of salt. I wanted people to know that because, as Senator Rhoads said, as we went around the state, clearly there are some misconceptions about what you can and can’t do in wilderness. There were quite a few of those misconceptions circulating about grazing. I wanted to make that real clear.
Assemblyman Goicoechea:
Maybe you need to tell the federal agencies that they can fight those fires by mechanical means. At Cedar Hills, out of Twin Bridges, I don’t know how many times, in Elko County, we’ve had a fairly large furor over that, to the point of even ordering those fire trucks back. It’s ridiculous; they’re fighting the fire, and they tell them, “This is a WSA; you need to leave.” And they can drive back six miles and make those guys walk back in a foot. This is how ridiculous it gets. Maybe somebody needs to tell the federal agencies they can do it.
Shaaron Netherton:
I’ll get on that. Thank you, Assemblyman Goicoechea.
Kaitlin Backlund, Lobbyist, Nevada Conservation League:
[Introduces herself.] We are here in support of S.C.R. 7. We appreciate the work that Senator Rhoads does in working with all the different kinds of communities throughout Nevada on this issue. However, we are in opposition to S.J.R. 3 and S.J.R. 4 without the amendments that have been put forth by Ms. Netherton. With those amendments included, we are in support of those resolutions, but without them we are in opposition.
Stephanie Licht, Legislative Consultant, Nevada Woolgrowers Association:
I’d like to speak to some of the questions that were raised by the Committee. I had not intended to speak.
[Introduces herself.] I have personal knowledge; Assemblyman Geddes asked for documentation of how grazing is a tool for fire suppression. Along about 1999, one of my members called and said we had a fire along Interstate 80, and the right-of-way borders on his private grazing allotment and/or intermixed private land. I went down there and took pictures and the fire, as Senator Rhoads said, had burned right up to the fence. It stopped right there.
I have pictures, but I’ve given them to someone, so I will have to get them back or get copies from them. I don’t have them in my possession now. I forwarded them to Tom Feldmen, whom I believe, took them to or intended to take them to the Governor’s Task Force on Wildfires. Secondly, as the coordinator for the 2000 Land Use Summit, we did have extensive conversations about wilderness and a lot of the stuff that Senator Rhoads brought forward and is continuing with had its genesis, or at least we feel it had its genesis, there. We had a large group of people who broke up into regions, and that’s where we found out that you can’t do this state all in one big fell swoop. Each area has to be studied separately.
Even though I did not sign up to speak, I apologize for that, there were things that came up along the way, and knowing information, that I didn’t feel like I could just let go.
Vice Chairman Claborn:
Are there any questions? Ms. Licht, you did sign up for S.B. 486; why don’t you just remain there. Mr. Henderson, would you like to come up and bring your crew?
Senate Bill 486 (1st Reprint): Makes various changes regarding livestock and other animals. (BDR 50-570)
Don Henderson, Acting Director, Nevada Department of Agriculture:
[Introduces himself.] With your permission, I’d like to have Dr. Thain, our State Veterinarian, introduce this livestock bill to the Committee. It’s a rather detailed one, and it has several components to it that I think he can explain most clearly.
David Thain, D.V.M., State Veterinarian; Administrator, Division of Animal Industry; Administrator, Division of Livestock Identification, Nevada Department of Agriculture:
[Introduces himself.] S.B. 486 has four major components to it; I will go through each major component, and if you have questions as I go through it or at the end, that would be fine. The first component addresses the Sheep Commission, merging the duties of the Sheep Commission into the Board of Agriculture and to the State Quarantine Officer. When the Sheep Commission was first formed in early 1907, nearly eight years before the Board of Stock Commissioners, which became the Department of Agriculture, the sheep industry was the leading industry in Nevada. Back in the 1920s, we had nearly 2 million head of sheep in Nevada. Now, because of changes in grazing, changes in commodities, we’re looking at about 40,000 head of range sheep.
The industries requested that we move these duties away from the Sheep Commission but leave the enabling legislation of Nevada Revised Statute Chapter 562 intact so, if the industry has a rebound and desires the recreation of the Sheep Commission, it’s possible. The role of sheep diseases will be delegated to the State Quarantine Officer and the other Sheep Commission duties will be rolled into the Board of Agriculture. To ensure adequate representation by the woolgrowers, one of the members of the Board of Agriculture, growing from 10 to 11 members, will represent the woolgrowers as a range sheep producer.
The next area of change that we have is the creation of the designation of feral livestock. Currently, we have the estray livestock category, and we wanted to create the feral livestock category so it would lessen the advertising requirements by the Department of Agriculture. Feral livestock, basically, covers any formerly domesticated livestock and progeny that have been created, except for specifically exempt wild horses as defined under the Wild Horse and Burro Act, 1971. By no means did we mean to pick this up under our designation.
We have several areas that we’d like to consider as having feral livestock. One is the Virginia Range area, to look at the majority of that area as a feral horse area. Also, down on the Virgin River, we have a problem with feral swine that we’d like to address, and also up in Paradise Valley. It would save the agency some advertising requirements. Since 1998, we’ve captured more than 600 head of horses from the Virginia Range, and we’ve advertised them individually and had no one claim any of those during that period of time.
Assemblyman Marvel:
If you change the designation from estray to feral, does that take away your jurisdiction?
Dr. David Thain:
No. The only thing it truly changes is our advertising requirement after we catch the horses. Under the estray law right now, we have to advertise each individual animal. Under the feral livestock category, if we call them feral livestock rather than estray, then we’ll be able to say we caught 125 head of horses, as opposed to listing each of the individual animals.
Assemblyman Marvel:
It won’t be in conflict with the BLM? [Dr. Thain indicated it would not.] They manage the feral horses.
Dr. David Thain:
They manage the wild horses under the Wild Horse and Burro Act, where the federal agents decide what is a wild horse and what isn’t. We’ve stayed totally away from that term “wild” so that we wouldn’t be in conflict with BLM.
Assemblyman Goicoechea:
Dr. Thain, when you have feral pigs, do you advertise those for sale? I guess I’m at a loss. The only feral pigs I know about, I thought were hunted.
Dr. David Thain:
Technically, you can’t legally hunt them. One of our problems in some disease work that we did down on the Virgin River, we found that the pig population running down on the river is infected with pseudorabies, which is a program disease that we’ve been free of here in Nevada for a good number of years. We’d like to not lose that designation. For us to be able to go in and gather them all, put them in the feral category, it would just be a lot easier for us.
Assemblyman Goicoechea:
What would you do with them at that point?
Dr. David Thain:
We’d destroy them. We have the opportunity to either destroy them or to actually sell them. With all of our proposed projects with wildlife services and USDA (United States Department of Agriculture), it would be a “trap and destroy.”
In the next large section are some changes in Diseased Animals, Nevada Revised Statute Chapter 571. To eliminate some ambiguity, we’re going to introduce the term “animal” rather than “livestock.” Changing times and cultural differences have changed the direction and scope of State Quarantine Officers’ duties. This would help eliminate some of the questions and issues we’ve had arise. The other portion of this would eliminate the dollar amount for indemnity. Current statute specifies that no more that $75 for grade livestock and no more that $200 for purebred livestock.
[Dr. David Thain continues.] Back in late January, early February, in Las Vegas, we were paying on the order of up to $300 for breeding roosters for our Exotic Newcastle Disease eradication program. That was done under USDA (United States Department of Agriculture) authority because we couldn’t actually go out and negotiate more than $75 for these birds.
The last area is for the Nevada Beef Council. The industry has requested that the Nevada Beef Council be removed from state government. It currently has authority under federal law for the collection of beef promotion taxes. By pulling it out of state government, it eliminates some bookkeeping hassles that the Nevada Beef Council has been underneath.
Assemblyman Marvel:
How will that be handled now?
Dr. David Thain:
It would be handled just like it is now. Right now, the Beef Council is administered under agreement from the National Beef Council, the NCBA (National Cattlemen’s Beef Association), which designates it back to the Nevada Cattlemen’s Association. They have two oversight people, one for the state of Nevada and the other for the federal government.
Assemblyman Marvel:
Would the Cattlemen’s Association be the home office for it? [Dr. Thain said it would.] They have the staff to administer?
Dr. David Thain:
Yes. They have been doing it for several years now.
Assemblyman Marvel:
Regarding the Sheep Commission, would you let them get predatory animal tax?
Dr. David Thain:
No. The Predatory Animal and Rodent Control Committee tax would continue to go where it goes now. The PARC Committee will still exist; we changed the definitions a little bit so now there will be two members of the Board of Agriculture on it, one representing the woolgrowers, and the other one appointed. The money will still go where it’s supposed to be going.
Assemblyman Carpenter:
Would you explain more fully what is going to happen to the Beef Promotion tax?
Dr. David Thain:
I’d be more than happy to. Currently, the Beef Promotion tax is collected by the State Department of Agriculture, Bureau of Livestock Identification, and then it’s forwarded into a state budget. That state budget cuts a check that goes to the Nevada Beef Council. The Beef Council then cuts a check and pays the Division of Brand Inspection for the collection of the tax, under a cooperative agreement. The way it would work, with the elimination of the Beef Council, is, under a cooperative agreement contract with the Division of Brand Inspection, they would continue to collect the tax. The tax would then go directly to the Nevada Beef Council. The Beef Council immediately cuts 50 percent of what they collect, and that goes to the national Beef Promotion Board. They use the rest for both administration and for beef promotion here in Nevada.
Assemblyman Carpenter:
How is the Department going to get paid?
Dr. David Thain:
The Division of Brand Inspection will continue to be paid under a cooperative agreement for collections with the Nevada Beef Council, just like they are now.
Assemblyman Marvel:
Is it still a dollar a head?
Dr. David Thain:
Yes, it’s still a dollar a head for each times as the cow is sold.
Assemblyman Goicoechea:
Can you tell me what percentage the Brand Division takes as administrator?
Dr. David Thain:
Last year, nearly $400,000 was collected; I believe it was $18,000 to $20,000 that went to the Brand Division for collection.
Stephanie Licht, Legislative Consultant, Nevada Woolgrowers Association:
[Introduces herself.] I was the last operating secretary for the Sheep Commission. I’ve worked closely with Dr. Thain. This was a request, partially by the Governor’s Office, to mesh the Sheep Commission administration into the Board of Agriculture. We wobbled over to the Board of Agriculture at the Governor’s request. As the sheep industry has lessened, it’s been more difficult to find people to serve on the Board of Sheep Commissioners. As Dr. Thain said, we worked this out two years ago at the Nevada Woolgrowers Convention. This has the support of the industry. I might point out, for Mr. Marvel’s information, that the Nevada Woolgrowers Committee for Predatory Animal Control is a kind of subcommittee of the Sheep Commission, and they’re still there; they’re still taxed.
Dr. Thain worked very hard, and he was the main crafter of this bill and did a very good job of leaving Nevada Revised Statutes Chapter 562 in statute so, if we should have a resurgence of the sheep industry, we can pull up a sheep commission again. Just for your information, this was the issue that brought me to this particular job that I have now. Before I did this, I didn’t know anything about this process. That is still okay. The Predatory Animal and Rodent Committee of the State, under which Bob Beach works, is still an entity, but it has a sheep representative on it.
It’s a state committee, and Bob Beach works as the state predatory animal person. There’s a memorandum of understanding between the state and Bob Beach’s federal predatory animal folks, Wildlife Service people. The Predatory Animal and Rodent Committee is the one that is dovetailed with that. There are two separate predatory committees, one under the Sheep Commission and this separate state agency, that have the cooperative agreement with the USDA (United States Department of Agriculture) people. I’m probably the only one in the state who really knows how it works.
Assemblyman Carpenter:
On page 7, Section 14, lines 20 through 22, it says something about “authorities of the United States in the enforcement of any federal rules and regulations pertaining to the sheep industry.” To me, that cuts a pretty wide swath; it looks to me like you wouldn’t get any chance to have hearings on any proposed rules or regulations. I think it’s too harsh.
Dr. David Thain:
This is existing statute that’s already in place. It’s always been there so that the Board, which in the past was the Sheep Commission and would now be the Board of Agriculture, can accept and adopt rules that the USDA puts out for the control and eradication of certain diseases.
[Dr. David Thain continues.] The statutes have been in place for a good many years and have worked very, very well with cooperative efforts between the USDA and the Sheep Commission. It’s worked very well. We have the enabling legislation in Nevada Revised Statutes Chapter 571 where the Department of Agriculture, in cooperative efforts, works for the control of brucellosis, tuberculosis, and many other diseases we currently have in cattle and swine in place. It doesn’t mandate that the Board has to accept and adopt these rules and regulations of the USDA, but it allows them to be adopted. Any time, before of these rules are adopted, they have to go through the hearing process.
Assemblyman Carpenter:
I think, though, that all of the language that refers to diseases and things like that has been crossed out. I just think the way it’s written could cover anything, and I think you need to put the language back where it talks about “prevent the exportation of diseased cattle.“ Really what it’s talking about, I don’t have any problem on disease and things like that, but the way it’s written, any federal rules and regulations pertaining to the sheep industry.
Dr. David Thain:
We moved all of the disease authority for sheep to put it in the same category as the rest of the animal diseases. That is under the authority of the State Quarantine Officer. What we’ve done is we’ve moved animal disease authority to the State Quarantine Officer who is, by statute, the Director of Agriculture. By delegation, I’m the State Quarantine Officer, because the Director has delegated that authority to me. Before we adopt any arbitrary rules, they still have to go through the hearing process. That’s under Chapter 571 of the Diseased Animals Chapter 571 of the Nevada Revised Statutes.
Assemblyman Carpenter:
I don’t like the way it’s written; we’ve got enough things out there without putting something into state law that we’re absolutely bound by. We need to change that part, I believe.
Chairman Collins:
Dr. Thain, would you and Mr. Henderson sit down with Assemblyman Carpenter after the hearing today? [Dr. Thain agreed to do so.]
Don Henderson, Acting Director, Nevada Department of Agriculture:
Maybe we could quickly dispense with it. What if, on page 7, line 21, we inserted “any feral health rules and regulations;” would that would clarify Assemblyman Carpenter’s concern? We’re trying to define here what the authority of the Board of Agriculture is in assuming this new responsibility of the Sheep Commission.
Assemblyman Carpenter:
Something like that, so we’d know what we’re really talking about.
Assemblyman Goicoechea:
Dr. Thain, we’ve got some language here talking about, at the owner’s request, inspecting sheep, but, technically, how do you certify health papers or if those sheep are in fact tagged before they are transported?
Dr. David Thain:
The reason we inserted the language allowing an industry representative with sheep to request a brand inspection is under the new federal Scrappy Rule to allow sheep to move via interstate commerce without a specific individual identification tag; they can have a registered brand. With the brand inspection, they can move without the individual ear tags put in place. This statute allows the sheep producer to either use scrappy ear tags or they can use brand inspections to move those animals on through interstate commerce.
Assemblyman Goicoechea:
I wasn’t aware you could move sheep with the brand inspection rather than a scrappy tag. Thank you.
Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation:
[Introduces himself.] This bill does a lot of different things pertaining to animal agriculture in Nevada. All of those things need to be done, and we are in support of the bill. We wish that you would process it and move it forward.
Keku Kamalani, Intern for Senator Titus, University of Nevada, Las Vegas:
[Introduces himself.] I wanted to remind you that Senator Titus sent a memo to the Committee earlier this morning about S.B. 486. I will now read Senator Titus’s prepared statement for the Committee. Please make sure this is typed into the record.
To Members of the Assembly Natural Resources:
As you know, I have long been involved with the protection of Nevada’s wild horse population. Accordingly, I would urge you to give careful consideration to the comments of the Wild Horse Preservation League in opposition to parts of S.B. 486 scheduled for hearing this afternoon. I share their concern about drawing a distinction between estrays and feral livestock. Thank you for your attention to this matter. Dina Titus.
Charlie Fisher, Citizen:
[Introduces himself.] I was a range conservationist with the Bureau of Indian Affairs for 27 years. I don’t think there’s another person who has seen more of the wild horses in the state of Nevada than I have. My old horse, Napoleon, and I covered the whole state, either hunting or on the job; a lot of the hunting was on the job. I did pay special attention to the definition of feral livestock on page 9 of the bill, and Dr. Thain explained everything like that to me. To go back a little bit, I was one of the guys who helped Wild Horse Annie write the Wild Horse bill, but I couldn’t get two things across to her.
If you remember how the wild horse bill reads, it reads that the wild horses out on the range are direct descendents of those mustangs brought over by Cortez. In the state of Nevada, any of the horses that are designated as wild horses that are any relation to the original mustangs is nil to none. They would all be feral horses. That was one point I wanted to get across.
I’m for the bill. When I read the letters to the editor that were in the Nevada Appeal a couple of days ago about this meeting, I called Mr. Henderson and asked him if he was in favor of the bill. He said, “Yes,” so I’m in favor of it. He’s smarter than I am; I’ve known him for a long time, and he hasn’t given me any bum steers so far. [Provided Exhibit H but did not discuss it.]
Betty Kelly, M.D., Wild Horse Advocate:
[Introduces herself.] There’s a packet that was distributed that says, “The Wild Horse Story,” and it has a lot of excellent information (Exhibit I). I’ve been in Nevada since 1970 and am a wild horse, public lands, and environmental advocate; I really appreciate you allowing me to testify today. I handed out this informational packet; it has several articles in there that I think are historical as far as this issue goes. But there’s also some new information there, too. I would urge that anybody involved in passing laws like this look at it and have an open mind.
My testimony is in opposition to the language in S.B. 486, as amended, to the NRS statute (Exhibit J). This bill is only one more imperialistic stepping stone by the politically powerful special interest group, historically known as the Sagebrush Rebellion, that has continually pecked away, like a chicken, over past decades, at American free roaming wild horses on both private and public ranges, as this group marches to gain control of America’s public lands as their own private domain.
[Dr. Betty Kelly continues.] The added language, “feral livestock,” is another example of ignorance and perpetuates the rhetoric by this group, aimed directly at wild horses. Included in this packet is “the rest of the story,” articles that are informative and educational. The “Pied Piper of Hamelin” conspiracy must be stifled as our public lands and all wild horses, including the Virginia Range horses, are methodically being destroyed.
Nevada political affairs may call them estrays, feral livestock, or whatever, but wild horses are wildlife, not livestock. This bill states that “feral livestock” does not include equines subject to the BLM’s Wild Free-roaming Horses and Burros Act of 1971. However, herd areas and herd management areas have been and continue to be negatively manipulated in a way so that these areas are shrinking. Historically, wild horses and burros have been pushed from federal lands onto private lands. The BLM and Department of Agriculture collaborate to classify wild horses as estrays. Now the term “feral livestock” is added to again treat them as livestock.
This group has also battled to appeal this Act (Wild Free-roaming Horses and Burros Act), (Exhibit J). The current statute, and these amendments, will be perfectly worded to take over America’s wild horses as livestock. Most will end up as delicacies on the dinner tables of Europe, Japan, and Scandinavian countries for a huge profit. America’s heritage and this symbol of freedom will be destroyed.
The Webster’s Dictionary defines agriculture as, “the science or art of cultivating the soil, producing crops, and raising livestock, and in varying degrees, the preparation of these products for man’s use and their disposal.” Livestock is defined as, “animals kept or raised for pleasure; especially farm animals kept for use and profit.” As you can see, the Nevada Department of Agriculture has overstepped its function instigated by the group mentioned above. This bill will only create a larger, nonagricultural zoo to the already current statute zoo, with the language that defines “animal” as anything that is not human. The word “livestock” is now obsolete for their plan.
This bill is blatantly out of bounds for the Department, except for the changes regarding sheep. I can’t point a finger entirely at the Department as both the Department and BLM are controlled by this greedy, private special interest group.
Chairman Collins:
How do you know they’re greedy and private if they are public agencies?
Dr. Betty Kelly:
They’re not public agencies because they are private permittees.
Chairman Collins:
I was just looking for clarification.
Dr. Betty Kelly:
I’m not pointing a finger at the private ranching industry, which has its own private lands. The philosophy of the Department is “advance and protect” livestock and agricultural industries in this state as reflected by a bumper sticker that I saw some time ago. In essence, it said, “Cattle Grazing: Earth First…Venus Next.” This is at the expense of anyone, anything, or any animal that stands in its way, including America’s vanishing, over-managed, free-roaming wild horses. Now, elk-free zones have been created.
Who and what will be next in their plan? What is the cost of sustaining the public lands livestock ranching industry to the American taxpayer? Over four years ago, the annual cost was estimated from $75 million to over $2 billion a year.
Chairman Collins:
What was the cost of that again?
Dr. Betty Kelly:
It was estimated, over four years ago, to be from $75 million annually up to $2 billion annually, the cost of the taxpayers sustaining the public lands ranching industry.
Chairman Collins:
I wanted to clarify the taxpayers . . .
Dr. Betty Kelly:
I no longer see Nevada’s natural resources as conservation and preservation, but as a pig trough at which this special interest group furiously feeds, pushing others away under the auspices of state’s rights. This group hates government unless they control it and has always been the first in line for governmental handouts to benefit their personal greed. A few peanuts are thrown to the unknowing public to create a positive perception to win public support.
Nevada will soon be perceived as the “cow flop” state. I respectfully submit my testimony for the written record, to this Committee, and to other Nevada legislators. I appreciate you letting me speak, but if you would please read some of these articles. The feral livestock language that is going to be inserted into this bill is just another way to make it easier for our wild horses to be taken off to slaughter. I would like that language to be removed; I would like word “livestock” to be retained, and “animal” thrown out of this bill. Thank you very much.
Chairman Collins:
I want you to make sure you give the secretary a copy of your testimony. It’s interesting because some of the comments you made, the areas that wild horses can roam, or feral horses can roam, or whatever horses can roam, these boundaries are just drawn on a map by people that don’t realize that these horses don’t know that, when they get to longitudes and latitudes, they’re supposed to turn around. They just go where there’s food and water. It’s tough for us to say they’re over-managed because there are a whole lot of people who think they are under-managed because the BLM has not really funded Nevada’s people who work here to manage those horses very well because of the fluctuations in populations we have with the wild horses.
When you were talking about the cattle grazing, I think, in the last 20 years, cattle grazing in the state of Nevada is down something like 200,000 head. Obviously there are some people other than ranchers in control of some of this. I really appreciate you testifying and coming forward as you have. Were you able to present this in the Senate?
Dr. Betty Kelly:
No, I just found out about this bill last week, so it’s caught me by surprise. The livestock industry makes money by not keeping their cows on the ranges, but by taking them off and selling them. I think it gives you a false perception that the livestock grazing has decreased, because, otherwise, they wouldn’t make the money. Humans don’t know those imaginary boundaries either, but some of this language is pointed toward the wild horses. I would certainly hope you would consider removing that language.
Chairman Collins:
You’re specifically talking about Section 28, “feral livestock”?
Dr. Betty Kelly:
“Feral livestock,” period.
Chairman Collins:
The whole term.
Dr. Betty Kelly:
I think it’s a slam dunk term that knots the noose around the wild horses’ necks right now, but that’s just going to drag them up and kill them.
Chairman Collins:
From what I understand, speaking to people in Washington, D.C., the only way funding is done through the Wild Horse and Burro Act is with the provision of no-slaughter. You want to make sure that this is also the case on any other classification of horse, if there is such a classification. What are we going to do with them all?
Dr. Betty Kelly:
Yes. By the way, there is a way to manage them if they are managed by the laws. As far as money, it has been increased at the federal level and is aimed specifically at capture and removal of wild horses. I think, by 2005, they’ll be down to nonviable levels. Before the current federal administration took office, the budget really prevented a lot of this massive capture and gather removal. Since the current federal administration, there has been some sort of money found, and it’s aimed right at massive removal of wild horses to nonviable populations.
Chairman Collins:
What is a nonviable population?
Dr. Betty Kelly:
Probably less than 100 head.
Chairman Collins:
I think the plan calls for leaving 17,000 to 20,000 out there.
Dr. Betty Kelly:
If you really can believe the BLM’s statistics, which are only estimates. It’s hard for a person like me to get any statistics from BLM; they always have a barrier for that information. For the last several years, the population, as estimated by BLM, is 20,000 to 23,000.
Chairman Collins:
Are you aware of the Legislative Counsel Bureau’s Constituent Services? Who’s your legislator?
Dr. Betty Kelly:
I really don’t know. I hate to say it, but my northern legislators are usually unapproachable. I hope not. I’d like to know. Usually the southern legislators seem to have a more open mind. That’s my perception. [Chairman Collins asked where she lived.] I live in Truckee Meadows, Washoe Valley, and Carson City area, northern Nevada.
Chairman Collins:
There are three or four legislators up there. There is a place called Constituent Services, which is part of the Legislative Counsel Bureau (LCB), which has a full-time, nonpartisan staff here in the building, who will provide you with information upon request. If you find out who your legislator is and send them a letter requesting that information or write directly to LCB and make that request to Constituent Services. Paul Mortenson works with us. Mr. Mortenson, in the Research Division of LCB, can find you all that kind of information you want. Those are documents that are presented to this Legislature from those different agencies as well. You are right, though, some of those numbers are estimates.
Assemblyman Goicoechea:
I’d like to ask, Dr. Kelly, what’s your position on the 17,000 or so horses that are being held in federal sanctuary facilities at this time?
Dr. Betty Kelly:
That’s the result of this massive removal, because we increased the appropriations for capture and gather. It certainly would be cheaper for the American taxpayer to leave the horses on their home range managed by the federal laws, which are now being skirted for all sorts of reason. There are ways to manage them; I’m for managing the wild horses by the established federal laws and not by skirting it by using all sorts of emergency removals.
Assemblyman Goicoechea:
If you took those numbers and combined them with existing numbers that are out there, that would leave 40,000 head of horses or so on the range, with a recruitment value of 20 to 23 percent. In a couple of years, you’d have 60,000 to 75,000 head of horses out there. How are you going to . . .
Dr. Betty Kelly:
You’re talking about the whole western states?
Assemblyman Goicoechea:
No, that would be just Nevada.
Dr. Betty Kelly:
There are not that many in Nevada. That’s the whole western population.
Assemblyman Goicoechea:
If you take the 23,000, that is the BLM number as they it have in place today. They’re trying to draw it down to about 13,000 to 15,000. If you took the 17,000 or so horses that are in federal facilities today and added them to the 23,000 the BLM estimates, you would have 40,000 head of horses in the state of Nevada or someplace between here and Wyoming. The BLM has established that—Ms. Robinson just left—I assure you, if you go to someone in the BLM, they will tell you we cannot support 40,000 head of horses in the state of Nevada.
Dr. Betty Kelly:
Like I say, they have massively removed them and then put them in a situation that is appalling. It certainly would be more cost-efficient to leave them on the range and manage them by the federal laws.
Assemblyman Goicoechea:
How do you intend to manage them? I don’t want to argue with you, but I would love to talk to you a little more after the Committee adjourns, because I think that’s the problem we’re up against. How do you manage them? How do we control these numbers without sale authority and without removing? If you remove them, the adoption program can’t absorb that many horses, or it’s shown it hasn’t so far.
Dr. Betty Kelly:
First of all, I don’t think those numbers are massive; they’re estimates. I have to question BLM’s estimates. It seems like the more they take off, the more there are out there. The few horses that are still out there are peanuts compared to the amount of land that’s out there. If you want to compare them to the livestock grazing out there, they are just peanuts. You can’t blame 500 horses for degrading the ranges when there are 10,000 cows out there on the same range. I think what’s happening is that we focus so much on wild horses, but we have certainly disregarded or ignored cattle grazing out there.
Assemblyman Goicoechea:
It is an established number; as of last fall, there were 17,000 head of horses being held in federal facilities. I would counter to you, there probably isn’t room for those 17,000 head of horses and the existing numbers today in the state of Nevada. That’s my only argument. You say you want to manage them, but we need to come up with a way to manage them. Those horses are removed, and they are in a federal sanctuary, a federal holding facility.
Dr. Betty Kelly:
They are continuing to do massive roundups, and I don’t think that’s right. They are our heritage, and the BLM is kind of out of control. I think there are some lawsuits against BLM because they are removing, not by the law, because of created reasons.
Assemblyman Goicoechea:
There are areas in the state of Nevada, and herd management areas, that are over AML, appropriate management levels, today. We know that. Whether it’s drought that’s driving it, there isn’t forage and water there for the numbers that are on HMAs (herd management areas). It is remove them, or they die. That’s where it’s at; the cows have already been removed from a lot of those areas.
Dr. Betty Kelly:
That’s the only way you make money off of cows. Livestock fencing has been put up restricting their migration; they set them up for starvation and not water. Our ranching system, or BLM has set the wild horses up when there is land for them to migrate to, to remain free, and to be managed by the federal laws. This has been created not according to federal law.
Assemblyman Goicoechea:
I agree, management is the issue, and how are we going to get there? That’s where we need to go. What number? What is appropriate? What’s good for the animal as well as the ranges?
Dr. Betty Kelly:
Wild horses need to be managed to maintain a thriving ecological balance on public lands, and that’s not being done. There is an arbitrary setting of the AMLs (appropriate management levels) for a horse that is way below that. They are ignoring the conditions of the land. Someone has just said, “We’re going to set the AMLs at this level,” and that’s what is happening. That’s not the way the law reads.
Chairman Collins:
We’re about to run out of time; we’ve got at least three members who need to go to another Committee. We have no meeting on Wednesday, May 7, so our next meeting is Monday, May 12. A request was made several weeks ago to not schedule anything this Wednesday afternoon because of activities in the Legislature.
The stock water bill, S.B. 76, will be in front of us on Monday. It would be nice if we could find some legislation that the ranching community would agree with, that the federal government and BLM enforcers could accept, and environmental people wouldn’t protest. There is a current ongoing process that the BLM is doing to look at changing some of their regulations. It is going to be another year before they complete it. What would be nice would be to have a ranch be able to file and receive the stock water right, or the Forest Service or BLM to be able to file and get a stock water right or other improvements, and for everyone to get along.
Because we have been in court for several years, there has not been, or very little, legal development of stock water in the state of Nevada for several years. If we can’t find something that will end these litigations, there will be several more years before we will have water development to improve our communities and the rural parts of Nevada. Having said that, I hope you will all be ready next Monday for discussion of stock water and our future in Nevada.
Is there anything else that needs to come before the Committee today? Assemblyman Goicoechea wants to present some minutes. We are adjourned [at 3:31 p.m.].
RESPECTFULLY SUBMITTED:
Erin Channell
Committee Secretary
APPROVED BY:
Assemblyman Tom Collins, Chairman
DATE: