MINUTES OF THE
SENATE Committee on Natural Resources
Seventy-second Session
March 31, 2003
Chairman Dean A. Rhoads called the Senate Committee on Natural Resources to order at 2:07 p.m., on Monday, March 31, 2003, in Room 2144 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Dean A. Rhoads, Chairman
Senator Mike McGinness, Vice Chairman
Senator Raymond C. Shaffer
Senator Mark Amodei
Senator Bob Coffin
Senator Maggie Carlton
COMMITTEE MEMBERS ABSENT:
Senator Michael Schneider (Excused)
STAFF MEMBERS PRESENT:
Fred Welden, Committee Policy Analyst
R. René Yeckley, Principal Deputy Legislative Counsel
Gina Rasner, Committee Secretary
OTHERS PRESENT:
Hugh H. Ricci, P.E., State Engineer, Division of Water Resources, State Department of Conservation and Natural Resources
R. Michael Turnipseed, P.E., Director, State Department of Conservation and Natural Resources
Robert V. Abbey, Nevada State Director, Bureau of Land Management, United States Department of the Interior
Doug D. Busselman, Lobbyist, Nevada Farm Bureau
Steve Boies, President, Nevada Cattlemen’s Association
Ramona Hage Morrison
David K. Schumann, Lobbyist, Nevada Committee for Full Statehood
Demar Dahl
Harry W. Swainston
O. Q. Chris Johnson, Lobbyist, Nevada Committee for Full Statehood
Julia A. Keller, Lobbyist
John L. Falen
Joe Dahl
Mike L. Baughman, Lobbyist, Humboldt River Basin Water Authority
Jackie A. Holmgren, Lobbyist, Nevada Live Stock Association
David G. Holmgren, Lobbyist, Nevada Live Stock Association
Pamela B Wilcox, Acting Administrator, Division of Conservation Districts, Department of Conservation and Natural Resources
Merritt K. Yochum, Lobbyist, Independent American Party of Nevada
Janine Hansen, Lobbyist, Independent American Party of Nevada
Chairman Rhoads:
We will open the hearing on Senate Bill (S.B.) 76.
SENATE BILL 76: Revises provisions governing acquisition of water rights for purposes of watering livestock. (BDR 48-670)
Chairman Rhoads:
The premise for this bill has been around for 8 or 10 years. Senate Bill 76 does two things. It allows a rancher to obtain a permit on federal land for stock water, and it allows the Bureau of Land Management (BLM) to acquire a water right if they seek a willing rancher to work in partnership on a joint venture. Before public comment, René Eckley will describe the historical perspective of the bill.
R. René Yeckley, Principal Deputy Legislative Counsel:
I will remind you of the events that led to this bill, and provide a detailed summary of the provisions and the proposed amendments of S.B. 76 (Exhibit C).
Hugh H. Ricci, P.E. State Engineer, Division of Water Resources, State Department of Conservation and Natural Resources:
I have been dealing with the applications of this bill for the past two Legislative Sessions. We have granted the nine applications in Douglas County that the Nevada Supreme Court remanded back to the district court, then to us. There have been 184 permits issued over the years in the name of the BLM only throughout the State. There have been 153 joint permits granted to the BLM and private individuals.
Chairman Rhoads:
Under the law, after the ruling of the Nevada Supreme Court, an individual rancher can get a permit for stock water, is that correct?
Mr. Ricci:
There are 308 applications for stock water pending. Of that number approximately 60 percent have been protested, primarily by the BLM. We are reviewing each one individually and acting upon those we are able. Some are protested on the basis it is a public water reserve. The Nevada Supreme Court decision did not affect those. I agree with S.B. 76, and hopefully we can move on some of these applications. The bill will go from a three-way system to a two-way system. The issue is for the bill to withstand constitutionality. To attempt to do anything different than what is in S.B. 76 would not be any better than we were after 1995. I do want to mention section 1, subsection 3 already exists in present law. Vested rights will not be impaired in any way whether the bill passes or not. Also, a joint permit is an application filed in the name of two or more people. It can be transferable, and the transferee must meet the same criteria. Any private individual who would transfer their portion of a stock water application would be to the successor of a grazing permit.
Chairman Rhoads:
How long have joint filings been going on with the BLM?
R. Michael Turnipseed, P.E., Director, State Department of Conservation and Natural Resources:
The State got in the livestock business in 1925. Since 1933 until 1995 there have been various opinions whether the BLM did have to comply with State law. Finally an Executive Order from the President ordered all federal agencies to comply with State law when appropriating water. There were 284 permits issued from 1925 until 1995. There have not been any issued since 1995, except for the nine mentioned in Douglas County. There have been joint filings allowed at least since 1984. If a rancher or the BLM filed, or if there was joint filing, we approved. Other ranchers protested many of the rancher-only filings.
Mr. Ricci:
I do not know why the effective date of the bill is October 1, 2003, instead of July 1, 2003.
Ms. Yeckley:
October 1, 2003, is the default date, but it can be changed.
Robert V. Abbey, Nevada State Director, Bureau of Land Management, United States Department of the Interior:
I will read prepared testimony (Exhibit D) on S.B. 76, which the BLM supports.
Chairman Rhoads:
You stated in your testimony the bureau is considering some changes. Will the bureau drop the Rangeland Reform regulation that said all stock waters on public lands are going to be in the name of the United States?
Mr. Abbey:
There have been no final decisions reached. Meetings have been held to determine how far the bureau would like to go to change rangeland reform. The matter of the United States possessing interest on public lands is one of the issues being considered for revision. I believe there will be modifications made to allow some joint ownership.
Doug D. Busselman, Lobbyist, Nevada Farm Bureau:
We are here to support S.B. 76. We believe passage of the bill accomplishes a key objective returning the ability of a private individual to own a stock water permit on federal lands, and at the same time to jointly own a stock water permit with a land management agency. We also wish to note, for the record, the importance of protecting vested water rights as described on page 3, lines 16 through 19.
Our executive board of directors has raised an additional point of concern, which is the need to have a clear transferable ownership of the private portion of a joint water permit. The bill accomplishes the requirement with the language on page 3, line 18. Our executive board of directors also raised the need of having a workable process in place to take a permit through to certification. Section 2 covers our concern in this regard. Passage of S.B. 76 will be an important step in the process necessary to bring about improved resource management on lands managed by federal agencies. It is critical existing federal regulations be changed to provide opportunities for water development projects to be completed. Our organization is involved in working this objective. Having spent time with members who have been affected by the difficulties related to not being able to move forward with needed water development projects, we see the passage of this bill as one of the most important of this Legislative Session.
Steve Boies, President, Nevada Cattlemen’s Association:
The board of directors of the association addressed S.B. 76 at the February 2003 meeting. A majority of the board felt the federal land agencies should not hold stock water rights, and anyone owning rights should own livestock in order to put the rights to beneficial use. It is likely existing water rights on BLM or forest service lands will be held hostage if the bill is passed. Owners of the rights will be required to forfeit 50 percent of their rights to the federal government to develop those waters. The Nevada Cattlemen’s Association took the position of no joint filings with federal agencies. Our goal is a long-term solution. We feel this approach will assure the future of the livestock industry in Nevada. The motion the board passed reads:
The Nevada Cattlemen’s Association supports S.B. 76 with the exception of joint filing and with the inclusion of language stating an applicant may not acquire a right to use waters for watering livestock, which he does not own or possess unless he can show an alternative legal interest in the instrumentality of the beneficial use, which is the livestock animal to be watered.
Chairman Rhoads:
The Nevada Cattlemen’s Association’s position is to go to back “to do nothing” or insert “no joint filings.” I will read from a letter I received from Mr. Busselman.
The proponents of “do nothing” fail to understand S.B. 76 is putting the burden of joint ownership on the federal agency by requiring a federal agency without livestock to bring the person with the livestock to private sector along with them in joint ownership of a stock water permit on federal lands. Also under S.B. 76 a rancher can get his own permit. As things stand currently, if this bill is not processed based upon the Nevada Supreme Court ruling, the federal agencies can acquire a stock water permit on the federal land and do so by themselves. Since they determine who can establish water developments on federal lands, and since current federal regulations require ownership title of the types of improvements in the name of the federal agency, a private person wishing to develop waters on federal lands and own the use of the water cannot accomplish their goal.
Mr. Boies:
I understand, but I believe in 20 or 30 years we will look back, if we endorse this bill or anything relating to a joint filing, and see a precedent has been set that we will regret. We need to do whatever is possible to get this issue back in the courts. If we do not accomplish it this time, we will try again. Water is sacred in Nevada and we will do what it takes to control it.
Chairman Rhoads:
The amendment authored by the association would not let us back in court.
Mr. Boies:
Perhaps it will, depending on the position of the Office of the Attorney General and the Legislature.
Ramona Hage Morrison:
I will read prepared testimony (Exhibit E) testifying in opposition of S.B. 76 today on behalf of the chairman of the Nevada Live Stock Association.
Senator Rhoads:
There are many cases I do not know about, but our legal advisors will take a look at the issues you have raised. I question your concern about joint ownership. You state if an individual who has joint filing in the water right dies, the 50 percent goes to the BLM by virtue of survivorship. The Legal Division of the Legislative Counsel Bureau, the Office of the Attorney General, and several attorneys I have consulted within the private sector told me that is not true.
Ms. Morrison:
I think that is technically correct under Nevada law. We are concerned the grazing permit causes the joint water permit to go to the BLM under certain circumstances.
David K. Schumann, Lobbyist, Nevada Committee for Full Statehood:
The committee is opposed to S.B. 76. It is based on a false premise, which I have summarized (Exhibit F).
Demar Dahl:
I would like to state I concur with the testimony of Mr. Boies. I will read prepared testimony (Exhibit G) in opposition to the bill.
Harry W. Swainston:
This is a topic I worked on for 20 years as an attorney for the Office of the Attorney General. It appears amendment number 2 proposed by Ms. Yeckley (Exhibit C) presents what I believe is the appropriate approach to the stock water provisions. I have prepared a summary of the basis for my opposition (Exhibit H).
O. Q. Chris Johnson, Lobbyist, Nevada Committee for Full Statehood:
I have summarized my testimony (Exhibit I).
Julia A. Keller, Lobbyist:
As a director of the Wild Horse Preservation League, I am opposed to S.B. 76. Changing the language from “public lands” to “public grazing lands” would essentially affect multiple use which defines what public lands are, including but not limited to wildlife, mining, and recreation. Public grazing lands do not include private land or lands held in trust for Indian purposes or Indian reservations. The language, in principal, changes all public land to public grazing land. For purposes of wildlife, mining, and recreation, this term essentially defines the acquisition of public land.
John L. Falen:
I have provided the committee with a letter summarizing the opposition of the Nevada Cattlemen’s Association to S.B. 76 (Exhibit J). Mr. Chairman, I have heard you stress the individual rancher can file for water as the law is today. Is that a true statement?
Senator Rhoads:
The individual rancher can file, but it is likely to be contested by the federal agency. If this bill is successful, the rancher can file for a permit and the BLM will probably not protest. Currently, based upon the ruling of the Nevada Supreme Court, the federal agencies may acquire a stock water permit on federal land by themselves.
Joe Dahl:
I will read prepared testimony in support of Mr. Swainston’s proposal (Exhibit K).
Mike L. Baughman, Lobbyist, Humboldt River Basin Water Authority:
The Authority has been very involved in this issue, and has encouraged the Legislature to maintain a private interest in stock water rights in Nevada. Senate Bill 76 does not provide any new authority for a federal agency to acquire stock water rights. The bill seeks to raise the bar under which any party would need to demonstrate certain facts in order to acquire rights. It has been easy for any party to acquire stock water rights in Nevada, and as a consequence individuals disagree with various acquisitions. I would suggest a minor change in language. We think the use of the word “joint” in the new language is troublesome and sends alarms. We believe a change from “joint” to “made by two or more applicants” will clarify when two or more parties are putting their names on a certificate. As an example, three ranchers may apply for one-third each.
Jackie A. Holmgren, Lobbyist, Nevada Live Stock Association:
We concur in all Ms. Morrison said in earlier testimony. We would like to see amendments drafted into this bill, and I will read from our proposal (Exhibit L).
David G. Holmgren, Lobbyist, Nevada Live Stock Association:
We must ask ourselves if legislation was passed in 1995 that created the mess in which we now find ourselves. Mining and ranching losses experienced by Nevada are because of requirements made by federal agencies. The BLM and U.S. Department of Agriculture have made no effort to help prosperity. Why do these agencies want water? Please do not pass any law to allow the federal agencies to own any portion of stock water. With diminishing wildlife in most areas, do we need more water development or do we need more livestock and wildlife? It is obvious with the controversy involved with this legislation that federal agencies are undermining the fiber of this State. I applaud the ranchers of this State who try to get along with these federal agencies, but it is now time to stand up and be counted.
Pamela B. Wilcox, Acting Administrator, Division of Conservation Districts, State Department of Conservation and Natural Resources:
I support S.B. 76. I would like to state, for the record, I do not support proposed amendment 1. It would cause a problem relating to State lands, since it would remove the shelter the committee has extended to such lands. We have a number of grazing leases which go to the highest bidder. There is no continuing right to graze State lands. The amendment would discourage the State from developing new grazing leases.
Merritt K. Yochum, Lobbyist, Independent American Party of Nevada:
I am happy to see there is activity to protect the interests of Nevada. We support the amended bill introduced by Ms. Holmgren.
Janine Hansen, Lobbyist, Independent American Party of Nevada:
This bill has been supported by the BLM, and it is in their interest for the passage of S.B. 76. We support the substitution for the bill provided by the Nevada Live Stock Association, which will protect the water rights in the State.
Chairman Rhoads:
We will close the hearing on Senate Bill 76, and open the hearing on Senate Joint Resolution (S.J.R.) 1. This resolution sends a message to our congressional delegation.
SENATE JOINT RESOLUTION 1: Urges Secretary of the Interior to amend certain regulations concerning allocation of water rights for watering livestock on public lands. (BDR R-671)
Mr. Busselman:
The Nevada Farm Bureau supports S.J.R. 1. We believe the bill will facilitate Nevada’s move forward with effective water development projects.
Ms. Holgren:
I would like to suggest the wording “public lands” be changed. We do not need to develop more water until we are sure the water is in the hands of Nevadans.
Mr. Dahl:
The resolution appears to ask for the opportunity to return to the three-way system which worked well. Is that correct Chairman Rhoads?
Chairman Rhoads:
The resolution is designed to repeal language in the Public Rangelands Management Act. We are asking the U.S. Congress to remove language which has the effect of eliminating the system used for many years in Nevada, by precluding a range user from holding such water rights solely in his own name even if the range user was fully responsible for the development of the water rights.
Mr. Dahl:
Most of the tone of the resolution is to return to the three-way system. Does it then conflict with S.B. 76?
Chairman Rhoads:
It does refer to the three-way system on line 11. We will have staff review it. We will close the hearing, and this meeting is adjourned at 4:17 p.m.
RESPECTFULLY SUBMITTED:
Cynthia Cook,
Committee Secretary
APPROVED BY:
Senator Dean A. Rhoads, Chairman
DATE: