MINUTES OF THE meeting

of the

ASSEMBLY Committee on Elections, Procedures, and Ethics

 

Seventy-Second Session

May 13, 2003

 

 

The Committee on Elections, Procedures, and Ethicswas called to order at 5:13 p.m., on Tuesday, May 13, 2003.  Chairwoman Chris Giunchigliani presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are presented in the traditional legislative style.

 

COMMITTEE MEMBERS PRESENT:

 

Ms. Chris Giunchigliani, Chairwoman

Mr. Marcus Conklin, Vice Chairman

Mr. Bernie Anderson

Mr. Bob Beers

Mr. Chad Christensen

Mr. Tom Grady

Ms. Kathy McClain

Mr. Bob McCleary

Ms. Peggy Pierce

Ms. Valerie Weber

 

COMMITTEE MEMBERS ABSENT:

 

None

 

GUEST LEGISLATORS PRESENT:

 

Senator Dina Titus, Senatorial District No. 7, Clark County

Senator Maurice Washington, Senatorial District No. 2, Washoe County

Assemblyman William Horne, District No. 34, Clark County

Assemblywoman Sheila Leslie, District No. 27, Washoe County

STAFF MEMBERS PRESENT:

 

Michelle Van Geel, Committee Policy Analyst

Kelly Fisher, Recording Secretary

 

OTHERS PRESENT:

 

Carole Vilardo, representing the Nevada Taxpayers Association

David Schumann, representing the American Independent Party

Alan Glover, representing the Nevada Association of Clerks and the Registrars of Voters

Richard Siegel, President, American Civil Liberties Union, Nevada

Leonard Pugh, Director, Washoe County Department of Juvenile Services; and President, Nevada Association of Juvenile Justice Administrators

Frances Doherty, District Court Judge, Second Judicial Court, Washoe County

Kaitlan Backlund, representing the Nevada Conservation League

Ellen Pillard, Chapter Chair, Toiyabe Chapter of the Sierra Club

Pat Elzy, Public Affairs Director, Planned Parenthood Mar Monte, Reno

Bobbie Gang, representing the Nevada Women’s Lobby; the National Association of Social Workers, Nevada Chapter; and the American Association of University Women, Nevada

Lorna Weaver, representing the Sportsmen and Sportswomen of Nevada Wildlife Federation; the Coalition to Save Walker Lake; and the Walker Lake Working Group

Joe Johnson, representing the Toiyabe Chapter of the Sierra Club

Mike Turnipseed, Director, Department of Conservation and Natural Resources; and Leader, Nevada Team in the Walker River Negotiations

Gordon DePaoli, representing the Walker River Irrigation District

Chris Miller, President, Nevada Wildlife Federation

Susan Lynn, representing Public Resource Associates, Reno, Nevada

David Fulstone, Chairman, Lyon County Board of Commissioners

Toby Montoya, Walker Lake Working Group, Hawthorne

 

 

Chairwoman Giunchigliani:

[Roll called.]  We have a quorum.  I’m going to take S.B. 449 first because we had to roll it from last week, then we’ll go into A.C.R. 19.

 

Senate Bill 449 (1st Reprint):  Makes various changes to provisions governing advisory questions appearing on ballot. (BDR 24-250)

Carole Vilardo, representing the Nevada Taxpayers Association:

I’m speaking in support of S.B. 449.  The reason you have this legislation before you is because we have tracked, as an association, ballot questions since 1988, and published them.  The phenomenon that we find happening is that there are more and more advisory questions being used. 

 

On the last statewide general election at various counties, we had 15 advisory ballot questions.  Of the 15, 12 asked the voters to approve a tax increase.  Because there are so many Clark County members here, the issue of the homeless question was a property tax override of one cent.  If it had been a non-advisory question, the information that would have been contained on the sample ballot would have been what the cost impact was to the voters; if it were going to be a bifurcated issue, where part of the rate would be used for bonding, and part would be used for operations; how much; and what the duration of time would be.  As it was, the information that you had was, if the question is approved by the voters that it carries with it up to a one-cent increase in property tax.  We think the voters, particularly when it comes to fiscal matters, are entitled to more information. 

 

The language you see in here tracks the type of fiscal information that we require for a regular ballot question.  If it were a bond issue, it would have the full fiscal disclosure, even though it’s advisory.  If it’s an override question, it would have to contain the provisions that it’s being imposed for no longer than 30 years and, when in effect, how much it would cost to the owner if it were a regular question.  This is in first reprint.  The original bill was written so that it would have included initiative petitions.  It was felt that if a governing body, which is the way it was written, calculated the fiscal impact on an initiative petition that the governing body could skew the information.  In addition, it was felt that if you turned around and had the group write the language, they might not have sufficient expertise to write a good explanation on the initiative.  That’s the part that was deleted.  That’s the reason the bill is in first reprint. 

 

Assemblyman Grady:

In some of our rural areas, there is a real problem with getting the expertise to write these questions.  I believe last session there was legislation on how the rural areas could get help.  From some of the clerks that I talked to in the rural areas, they feel this is still a problem of getting the expertise to help with those questions.  Would you tell us your thoughts on that?

 

Carole Vilardo:

With the help of Mr. Swenseid and the Committee on Local Government Finance, there was a provision made relative to ballot questions that had financial impact to have that committee write regulations, which would be sent to all district attorneys and all clerks.  These templates say, if this is an override, there is the language and all you need to do is fill in the blanks.  I would assume that because of the section of law that this is written in, they would expand and put templates down for the advisory question or just change those templates to say whether you have an advisory question or a regular ballot question, this is what you need.  Sometimes the clerks and the district attorneys don’t always talk to one another.  Even with a template, they interpret it differently, and I don’t know how you take something that literally says “fill in the blanks” and have a different interpretation.

 

Assemblyman Conklin:

I’m reading in Section 3 of the bill, which starts at the bottom of page 3, and I think I like what I’m reading, but I need some clarification.  It appears to me what you’re trying to do is say only a governing body, city, or county may put an advisory question on their ballots, i.e., political subdivisions and political entities that don’t report to cities and counties may not do so.  Is that a fair assessment of what you’re trying to do here?

 

Carole Vilardo:

It is a fair assessment and I apologize for not bringing up this issue.  There was a Legislative Counsel Bureau (LCB) legal opinion that a particular board did not have the authority to go directly to the ballot and yet it did.  In talking to the Legal Division about this bill and the language, it was felt that this was a logical place to clean up that problem.  You are absolutely right.  That is what it is doing.  There is another provision in here, which is strictly out of LCB, and that is the provision that talks about the sequence the questions will appear on the ballot.  The testimony and the understanding was that this would provide consistency and came from the LCB Legal Division itself.

 

Assemblyman Conklin:

Is the Legislative Counsel Bureau comfortable with the language that appears throughout Section 3, and at the very beginning of subsection 1, where it says, “A county or city, the governing body of a county or city”?  I want to make sure that is limiting to county commissioners and city council, exclusively.  Were they comfortable with that or did anybody ask that question?

 

Carole Vilardo:

That was not recommended from us, so I am accepting that, like we see cleanups and clarifications in bills that are stylistic for period.  I believe that’s what it is, but I think there is one other clarification I should make.  There are times where you give specific authority for a ballot question.  For example, the Las Vegas Metropolitan Police Department in Clark County was given authority by the Senate to go to the voters with a property tax question.  If they first went to the city and the county, recommended by fiscal and debt management commission, so they would be included because you have granted a specific authority to them.  For general purposes, this is exactly what we’re looking at, the cities, counties, and you would have GIDs (general improvement districts) also, because they are a local government unto themselves the way they are created, and they do have the ability right now to go to the ballot.  But you would stop some of what has happened with non-elected boards making decisions, or boards that are quasi, where they’re made up of both public and private members, from trying to go directly to the ballot.

 

Chairwoman Giunchigliani:

I believe Assemblyman Mortenson’s A.B. 293 was heard in Assembly Committee on Government Affairs the other day, and I think Assemblyman Hettrick asked that A.B. 428 be amended into that, which also outlined four categories of public purpose standards that had to be met.  I think that would strengthen this, so that you did not have a re-advisory question under the sun going out. 

 

David Schumann, representing the American Independent Party:

One section on page 6, Section 4B, applies to people who put constitutional amendments on the ballot.  If you need to put a fiscal note in, there’s going to have to be a template or some other very detailed explanation, because I’ve noticed on these fiscal notes, when the state does this, they do not follow generally accepted accounting principles.  Generally, we recognize accounting standards.  That’s not the way this state does it.  Those of us who don’t practice under state financial conditions wouldn’t have the foggiest notion how to make a fiscal note.  For instance, if you were to do something like Proposition 13, which says the assessment for all homes are fixed as of this date, and then they can only increase one and a quarter percent per year for purposes of real estate taxes, obviously that’s going to have a fiscal impact.  It would just overdo the capabilities of citizens’ groups to be able to figure out without having some kind of detailed guidance by the [people who] do this for you people, how to make an accurate fiscal note on this.  I just don’t think they could do it. 

 

Chairwoman Giunchigliani:

That’s a good point.  I think Ms. Vilardo mentioned that there would be some templates that we could look at and that would be helpful.

 

Alan Glover, representing the Nevada Association of Clerks and the Registrars of Voters:

We are generally in support of the bill.  We like the language in there; however, we’d like to come and plead with you to see if we could not be exempted out of the bill in the rural counties because the bill, as written, applies this to counties 40,000 or more, which picks up quite a few of the rural counties.  The clerks have called me and they’re concerned for a number of reasons.  Carson and Douglas tried this even though we were not subject to the law last year.  Douglas County had trouble getting anyone to serve on one of their committees and therefore they didn’t do it, which didn’t really matter because they weren’t really subject to the law.  It is a problem in the rurals getting people to serve on these committees. 

 

One of the other things that they are concerned about is that most of us hold dual offices.  I’m Clerk-Recorder, they are clerk-treasurers, or if they’re simply the clerks, they’re also clerks to the district courts.  These committees are time-consuming.  During the election period, especially the one coming up next year, especially after the implementation of your favorite legislation, HAVA (Help America Vote Act), we’re going to have a very heavy schedule in there.  They were hoping we could see how this goes with the new language for a couple years before it’s applied to the rest of us.  We’d very much appreciate if you could retain the language, “with 100,000 or more,” and leave us out for a while, if that is at all possible.

 

Chairwoman Giunchigliani:

It’s a valid reason.  I’ll talk to Senator Ann O’Connell and Ms. Vilardo and get back to the Committee before we take it up on Thursday.  We will close the hearing on S.B. 449 and open the hearing on A.C.R. 18.

 

Assembly Concurrent Resolution 18:  Directs Legislative Commission to conduct interim study of juvenile justice system in Nevada. (BDR R-1285)

 

Assemblyman Bernie Anderson, District No. 31, Washoe County:

Assembly Concurrent Resolution 18 directs the Legislative Commission to appoint a committee consisting of three members of the Assembly and three members of the Senate to conduct an interim study of the juvenile justice system in Nevada.  The last time the Nevada juvenile justice system was subject to an interim study was during the 1999-2000 interim.  The study was a continuation of an interim study of juvenile justice initially conducted under the A.C.R. 57 of the 69th Legislative Session subcommittee during the 1997-1998 legislative interim.  A major recommendation of that subcommittee was that a second phase of discussions oversight in consideration of juvenile justice issues was necessary to continue the development of a comprehensive approach designed to result in meaningful improvements to the juvenile justice system. 

 

[Assemblyman Anderson continued.]  In January 2001, the subcommittee to study the system of juvenile justice in Nevada made its report and recommendations to the Seventy-first Legislative Session of the Nevada Legislature.  Within the subcommittee report was recommendation number 8, which recommended a bill draft request that would create a statutory legislative commission of juvenile justice, with a sunset provision to expire after two legislative sessions. 

 

The Seventy-first Legislative Session failed to create a statutory committee to continue the study of the juvenile justice system.  As a result, a two-year lapse occurred in the tremendous progress previously made toward developing a comprehensive approach designed to result in meaningful improvements in the Nevada juvenile justice system.  Those were first started by Assemblywoman Jan Evans. 

 

Assembly Concurrent Resolution 18 simply seeks to revive the Legislature’s prior studies of the Nevada juvenile justice system, which will necessarily result in meaningful reform.  That there existed dire need for the revival of the legislative oversight of the Nevada juvenile justice system is illustrated by current events in the juvenile justice system area. 

 

For those of you who are not aware, in February 2002, the United States Department of Justice conducted a three-day investigation of operations at the Nevada Youth Training Center in Elko to determine if civil rights of offenders were being violated. 

 

The report of the Justice Department, released in November of 2002, found credible evidence of staff using excessive force against youths, including punching youths in the chest, shoving youths against lockers and walls, throwing youths to the floor, slapping youths in the face, smashing youths’ heads into doors, pulling youths from beds and to the floor.  The reason for this violence, according to the report, was disobedience, not dangerous behavior.  After the Justice Department report was released, I, along with you Madam Chair, my two distinguished colleagues here, and a couple of other members, actually visited the Elko facility and noted there was need for reform at this and other juvenile facilities. 

 

The interim study proposed in A.C.R. 18 is the appropriate vehicle by which meaningful changes in the juvenile system can be made.  It should also be noted that the interim study proposed in A.C.R. 18 will present the perfect forum for a complete review of the juvenile statutes.  As some of you are aware, Senator Valerie Wiener’s Senate Bill 197 recodified the juvenile justice statutes into one location in the NRS (Nevada Revised Statutes).  During the different hearing on Senator Wiener’s bill, many witnesses in favor of the bill commented that a complete review of the statutes would be appropriate now that the statutes will appear in one single place in the NRS. 

 

[Assemblyman Anderson continued.]  The area of consideration for the Committee contemplated by A.C.R. 18 are outlined in the resolution beginning on page 2, line 16.  The makeup of the committee reports proposed in A.C.R. 18 is stated on page 2, beginning on line 10.  Since I served on the subcommittee to study the system of juvenile justice in Nevada during the 1999–2000 interim, and a result of my visits to the Elko facility this year.  After the report of the Justice Department was released, each of you can probably guess how important I feel this particular resolution is. 

 

Suffice it to say that children of our state, whether juveniles experienced within the system or not, deserve the most effective, efficient, and fair juvenile justice system we can offer them and their families.  Assembly Concurrent Resolution 18 will assure those goals through the continued concentrated study of the Nevada juvenile justice system. 

 

Assemblyman William Horne, District No. 34, Clark County:

I had the privilege of being invited to tour the Elko facility.  I was asked to come here today to testify to my observations and also bring some perspective on my background.  First, my undergrad degree is in criminal justice.  I studied that, particularly in the area of juvenile justice, at University of Nevada, Las Vegas (UNLV) and in California.  One of the things you learn studying juvenile justice is the history of our juvenile court system and justice system in this country and the rationale behind it.  

 

The first thing we decided a long time ago was that our juveniles were different.  They may commit crimes and sometimes they commit crimes that could be seen as adult crimes, but it didn’t necessarily make them adults.  We chose to treat them differently.  The policy behind treating them differently was because we believed that it wasn’t too late.  We were going to put in the resources and the time to cut off a path of future crimes, crime as adults escalating crimes.  We set up an entire different system for juveniles.  That’s what we have today. 

 

As we see, though, our juvenile justice system has become more punitive in recent decades.  People want punishment.  They get tired of crimes.  In the last 20 years crimes by juveniles have grown much more serious, so we as a society, say we need to punish them.  We need to punish them more vigorously, more seriously, because these are serious crimes. 

 

However, there’s a part that’s missing.  The part that’s missing is that they’re juveniles.  Oftentimes they’re going to get out again, and we haven’t done what we initially set out to do, which is to cut off that path of future crimes.  This was a problem that I saw in Elko.  As you heard Mr. Anderson speaking on the various conduct from the staff there that was revealed in the Justice Department’s reports, this is all conduct perpetrated on these youthful offenders that they oftentimes have experienced at home, the schools they came from and the like, and the neighborhoods they run in.  Now they’ve been put into this facility and they experience that same type of conduct to them again.  We haven’t broken the pattern; we’ve only contributed to it.  This really jumped out at me that we’re not fixing it; we’re making it worse. 

 

Now, as you tour the facility, you see that we’ve put in things like a school, there’s actually a football field and a track field, and they’re pretty good.  However, can you imagine if you were to play football, for instance, but you didn’t play with a helmet or pads, and you got hurt, dislocated your shoulder, or broke a leg, and we let you heal and then sent you right back out there without a helmet and without pads?  I think that’s what we’re doing with these kids in facilities like these.  We’re sending them out without the proper equipment or the proper tools.  We’re not helping them.  In fact, we’re hurting them when we send them back out there without the proper tools to deal with society that we ask them to tow the line. 

 

These are just a few observations that I had from there.  Outside the responses that I heard from any of the kids, some of them have already adapted to playing the game and buying their time.  Unfortunately, they don’t have a whole lot of time because pretty soon they’re going to be 18 years old and they’re going to participate in the same conduct that got them there, but they’re going to find themselves in a prison this time after they’ve committed another crime or more serious crime to another one of us out in the population. 

 

Chairwoman Giunchigliani:

You’re right.  When we were on our travels, I actually ran into one of my former students.  Many of the kids there were special education kids, but they were not getting the services they needed, either.  Hopefully, if this were one of our recommendations, we would look at more of the de-institutionalization and then capitalizing on what other programs may be available so that we aren’t compounding the problem.  I think in some cases we are. 

 

Assemblywoman Sheila Leslie, District No. 27, Washoe County:

I want to echo just a little bit of what you’ve heard from my colleagues here at the table about how important this study is.  I’ve read the resolution and I completely support all of the areas of study they have suggested.  I want to tell you that when I first heard of the CRIPA (Civil Rights of Institutionalized Persons Act) report, it was in January during our pre-session budget hearings.  The Division of Child and Family Services had asked for quite a few additional staff for the Elko facility and the Caliente facility.  I asked, “What’s CRIPA?  What does that mean?  A report?  Can I see it?”  And they gave me a copy of the report. 

 

I read it the night before we came back and talked about it at the hearing.  I was so appalled when I read the report, I had to put it down several times and go outside and take a walk.  I have copies of the report if you’d like to read it.  I suggest that you do read it.  I think if you did read the report, you would be sitting right here at the table with us saying we must do better for our youth. 

 

The main area I was concerned about was the excessive use of force, which is well documented, as Mr. Anderson said.  When he was reading that list, I was getting mad all over again, because I was remembering the report.  The other area I was particularly concerned about was the lack of mental health care.  When we visited the facility several months ago, I’ll never forget the most chilling moment for me was when we were listening to the nurse at the facility talk about how few kids were on psychotropic drugs.  With the experience we all have, knowing how many kids in our juvenile detention facilities have severe mental illness needs, we questioned her about that and she talked about how they wean youth off their mental drugs at the facility.  That’s clearly unacceptable.  I’m going to talk about what your budget subcommittee has done about that. 

 

What I wanted to focus on today was the second trip I took.  I had five people accompany me to Elko, but nobody wanted to make the trip out to Caliente.  After going to Caliente, I can see why.  It took a long time to get there from northern Nevada.  It’s a very interesting community, but I did go out with our fiscal staff and some of the Department of Human Resources staff to look at the Caliente facility, which houses boys and girls.  That’s the only facility that we have for girls.  I can tell you that as in Elko, that facility is very well kept.  The grounds are very neat.  The facility is very clean. 

 

I did not observe the culture of violence and the problems that we saw at Elko, but I did have one major concern I left with that I want to put on the record today so that hopefully the A.C.R. 18 committee will look at.  That’s the program that we’re using out there.  It’s something called Positive Peer Culture.  Our state staff swears by the program.  They think it’s the best program they’ve ever seen.  I’ve read some of the material they provided me with and I’ve done some of my own research.  I’m here to tell you that I hope and pray the A.C.R. 18 committee makes this a major focus, because this program is from the 1970s era.  I’ve done a little bit of research on my own, as I’ve had time, and I just want to read into the record a couple of paragraphs about the Positive Peer Culture that we’re using in Caliente.  This comes from a paper from the Institute for Gender-Responsive Services and it’s called “Positive Peer Culture and Female Development” (Exhibit C).  The authors state and I quote: 

 

“At most programs, PPC (Positive Peer Culture) is used primarily to maintain order and to create a positive youth subculture by mobilizing the power of the peer group in a positive manner.  However, the peer-based treatment models of the 1970s, including PPC, are based on assumptions of human and group behavior that come primarily from studies of young males.  The most current studies and evaluations are challenging the traditional use of such models in modern treatment programs, serving males or females.” 

 

[Assemblywoman Leslie continued.]  The second quote I really want to read fits my personal experience of visiting Caliente and observing the peer culture groups, including the youth who listen in on all phone calls of other youth.  When I asked why, I had the same reaction as Ms. Giunchigliani just did, why they do that.  They explained that they want the youth to listen to the other youths’ phone calls home, so they can bring those problems at home to the peer culture group, so they can be discussed.  This is what the authors say: 

 

“In most PPC programs we have observed, the model itself evolves into a culture of artificial rules and norms, which take on a life of their own.  The very structure of the group process becomes a series of rules by which the group interacts both within a session and outside it, and that structure seems to be counterproductive or at least counter-indicated by recommendations of what a girls’ treatment group should look like, particularly since it often doesn’t even happen consistently throughout the program.” 

 

I think the A.C.R. 18 study should take a very close look at the PPC model and how it is employed in our facility and make sure that this 1970s-era program is still the correct program we should be using with our youth in 2003.  A lot of things have changed and I think we need to look at that.

 

As the Assembly Chair of the Joint Budget Subcommittee on Human Resources, I can tell you that we have closed the DCFS (Division of Child and Family Services) budget granting the request for additional staff for Elko and Caliente, as well as insisting on a budget amendment that provides mental health treatment to these youth as well as the youth on parole, and youth at the soon-to-be-opened Summit View Facility in Las Vegas.  The budget amendment also includes additional training dollars for staff.  Ms. Giunchigliani and I have discussed at length some of the things we’d like people to look at if this study should be granted, which is a more therapeutic model at all of our juvenile corrections facilities. 

 

[Assemblywoman Leslie continued.]  All of these issues need to be closely monitored over the interim.  We will be getting reports back at IFC (Interim Finance Committee) about the fiscal side of things and how it’s working out, but we really need legislative oversight on staffing, programs and services, and operations of our facilities to ensure these youth can be rehabilitated into the capable and productive citizens we know they can be.  I just want to disclose this, just in case you hear, “Oh, that Sheila Leslie, she was involved in the study, she didn’t even tell you, I’m hoping somebody else will be talking about this.” 

 

You all should have received a copy of this study that just came out in March called “Providing a Promising Future for Nevada’s Girls: A Statewide Gender-Specific Services Plan.”  I was one of the writers on the study as part of my private consulting, so I want to make sure that you know that.  This study, I think, needs to be closely reviewed.  It hasn’t received much attention yet, but it certainly fits in.  I was very delighted to see Mr. Anderson’s resolution no. 5, the gender-specific services, because I think that’s another very important area that A.C.R. 18 could address that to my knowledge has not been studied in the previous juvenile justice studies and certainly needs attention. 

 

Chairwoman Giunchigliani:

I appreciate you bringing that document up because I also had a copy and there were quite a few recommendations in there that have never been discussed.  I think items four and five are very key in here, the overrepresentation of minority youth and the whole gender issue.  I’m tired of studies being based on males.  No offense, guys, but if you look at the issue of heart attacks in women, it was always studies on men, never on women.  The same kind of thing I think needs to be dealt with, because program delivery is different for the gender, depending on which is there.  We may need to tighten up that language.  I’m shocked that they still use the PPC model.  I didn’t realize that.  I know I was concerned years ago when they first put the males in the Caliente Youth Center, just because they were overcrowded, rather than looking at a better way to deal with them with more outreach or treatment programs.  I’m fearful that we actually victimize them again, in many instances. 

Assemblywoman McClain:

Assemblywoman Leslie, I did read that report and thought it was excellent.  I totally agree with our Chairwoman that we need to look at gender-based situations a lot closer, because I know girls and women think differently, react differently, and you cannot base anything on a male model.

 

Assemblyman Grady:

I feel I probably should disclose that my son is involved with the tri-county, which is Humboldt, Pershing, Lander juvenile facility and has been employed there for probably five or six years now.  I don’t think this legislation would affect him or myself any different than anyone else.  Secondly, I’ve had the pleasure of taking groups and going to Caliente, Elko, and China Springs.  Winnemucca has a brand-new facility, Leighton Hall, and we’re very proud of the facility that’s in Silver Springs that is a co-op of about five or six western counties.  They’re excellent facilities, brand-new, very well kept, and have great programs.  I would encourage anyone that has a chance to go to any of these facilities to do so, because it’s a great experience. 

 

Chairwoman Giunchigliani:

Do you feel that Section 5 is tight enough for the interim committee to consider, or are there any language changes that we might want to take a look at?  You don’t have to get that to us tonight, but just think about it in case there’s anything else that we should make sure is reviewed because we’ll take this up in work session on Thursday.

 

Assemblywoman Leslie:

I will get together with my colleagues and take another look at it.  When I read it today for the first time, I actually sat down and read it carefully, and I think it’s pretty good, but we’ll take an extra look.

 

Richard Siegel, President, American Civil Liberties Union (ACLU), Nevada:

You’ll be receiving some testimony (Exhibit D) and the first of it has to do with the Elko situation.  I also have read the Elko study.  I did not do the field visits that went there.  I have discussed the Elko situation with the Division Administrator.  I have a sense that they are not denying the problems that at least existed in the form they did at the time of the study being made, and certainly it suggests a need for continuing attention.  In my capacity with the ACLU, this raised a question, even of litigation.  We have not acted in terms of litigation of the Elko situation.  We would like to see this study go forward. 

 

The second point in my testimony has to do with the MacArthur Foundation Study.  I think that in terms of the second and third points, I don’t see it in my reading today of the bill.  The second deals with the issue of the process of juveniles being tried in the juvenile and adult court system, which is a significant part of the new codification of the juvenile court law.  We presented to Senate Committee on Judiciary a summary of the MacArthur Foundation Study, which is a very serious study that says about 20 percent of the average-aged juveniles that we have in these facilities do not understand proceedings in an adult court and cannot assist their attorneys, which also has some significance in terms of the juveniles there.  So, I would ask to consider a numbered item that would deal with the issue of court process and juvenile competency. 

 

The last point has to do with juveniles in adult jails and prisons.  I don’t have current information on that in Nevada, but it is a national issue, a national problem, and if we are going to have such a study, it is my understanding that juveniles are housed in adult jails in rural counties, in some rural counties at least.  We need to review that and their housing as a potential issue.

 

Leonard Pugh, Director, Washoe County Department of Juvenile Services; and President, Nevada Association of Juvenile Justice Administrators:

In that capacity, I also serve on the Juvenile Justice Commissions Work Study Group, which continually reviews the progress of the juvenile justice system.  As I testified, related to the special hearing, related to the CRIPA report that I participated in both the A.C.R. 57 of the 69th Legislative Session and the A.C.R. 13 of the 70th Legislative Session subcommittees on juvenile justice. 

 

In my 26 years of experience in the juvenile justice system, the greatest progress in improving the system was made as a result of those two interim studies.  Obviously, as indicated in the resolution, there are still outstanding issues that certainly require our attention.  I fully appreciate your comments that we have to look at a development of a continuum of community-based resources to deal with these issues that’s going to require the cooperation of not only the juvenile justice system, but the mental health system, the substance abuse treatment system, and the educational system, to make sure that we’re putting resources into our communities that serve these kids and address issues at the earliest stage possible. 

 

Now, while I think there was an obvious need made and addressed in the earlier studies for either institutions to be replaced, remodeled, or added, and those issues have been addressed with the addition of some of you and some appropriations that were given to the counties to build new juvenile centers, which is greatly appreciated, if we don’t take strong measures to develop a system of appropriate community-based systems, we’re going to be back here in five years asking the Legislature to build more institutions to house kids.  It’s my personal opinion that’s not the appropriate response to dealing with those issues.  So, I think that issue needs to be studied by an interim committee and I’m confident that progress will be made as a result. 

 

Frances Doherty, District Court Judge, Second Judicial Court, Washoe County:

I’m here in that capacity, as well as my capacity as a member of the Nevada Juvenile Justice Commission appointed by Governors Miller and Guinn.  I too shared testimony on the concerns of the court with respect to the Elko facility at the hearing chaired by Assemblywoman Leslie.  I won’t repeat those concerns, but I will summarize them.  The court, as required by law, is in the position of approving every placement that a child is put into when the child comes through the doors of juvenile court.  That responsibility is not insignificant.  It requires the court to know those placements, to have a level of understanding and appreciation for their strengths, and to place a child with the confidence that the court is about to communicate to parents that this is the most appropriate placement for their child for purposes of rehabilitation and for purposes of growth, maturity, education, and treatment.  The CRIPA report diminished many of those abilities on the part of the court.  It diminished my ability to look parents in the eye, parents that any one of us may be, on any given day, but for fortune go we, and tell them this is the best and safest place for their child where the child is going to receive the rehabilitation that we have confidence in, will have an impact on the child and the community. 

 

We now as a court review every single placement in Elko.  We now as a court review the medical treatment of children in Elko.  We now as a court have a level of insecurity that is disconcerting in a manner that is unacceptable.  Parents should not be in the position of having concerns about their children.  Some areas of concern I am still not able to address.  So, I supported then and I continue to support an interim study committee to address this and many other issues in the juvenile justice system.

 

This morning I hurriedly, as usual, was getting my nine- and four-year-old children ready for school.  I fed them their cereal and let them watch their cartoons and got my nine-year-old off on the bus just in time, which is always the pattern, and she got off that bus and she went to school.  I then went to my job, which was conducting detention hearings at Wittenberg Hall.  Into the courtroom walks a child who is a few months older than my nine-year-old daughter, who also is alleged to have gotten on a bus in the same manner that I put my daughter on a bus, and yet she got off the bus. 

 

The allegations, with respect to her conduct, are so serious, with respect to her safety and the safety of the community, are so unimaginable that we now have a child that exemplifies in my mind a child we cannot serve.  Not because we don’t have the commitment.  Not because we don’t have sophisticated individuals, but because our juvenile justice system is all over the place.  We are piece-mealed individuals trying to fit.  Of the thousands and thousands of cases that I’ve presided over, placing children, approving placements, I have yet to walk into a courtroom and not be surprised and challenged by what walks through that courtroom door. 

 

[Judge Frances Doherty continued.]  Can I say that I have confidence that there is an extended level of community care that I can place a ten-year-old into, and ensure that ten-year-old won’t be pointing a gun at anyone else in the near future?  I can’t say that.  Can I say that I could place that ten-year-old in a residential facility and have a level of confidence that her needs, as well as the community’s needs, are appropriately being met, based on a level of expected standard treatment procedures?  I absolutely could not say that.  Can I say that the school district will be connected to the needs of this child, as she’s in the juvenile justice system, or in a special placement where she would need to receive ongoing special education services?  I absolutely could not say that.  Can I say that there’s a residential rehabilitative program in the state into which I could place this child?  Absolutely not. 

 

She is not an isolated case.  She is indicative and exemplifies the challenges we have in trying to pull together, as we have been doing for years, a system that can be responsive to the individual needs of a child.  Elko exemplified for us how we can massively fail at those efforts.  This child exemplified for me this morning how we individually have to keep on trying.  We need an interim study committee to get us together with mental health services, educational services, residential treatment providers, and rehabilitative services within our own state, paid for by our own state, and come up with a system that’s more efficient, that’s more effective, that’s more respectful of the communities we’re serving, in addition to the families we’re serving. 

 

I recognize, as everyone does, the cost associated with the interim study committee.  I know you hear time and time again that the cost will be much more if you don’t approve any given bill at any given time, but when you consider children, and you consider the limited resources that exist in a scattered network of disconnected juvenile services, despite best efforts, the interim committee study is really our salvation to turning around what I think we have in this state.  That is an incredibly sophisticated and committed group of individuals trying to respond to the needs of juveniles.  The Legislature has shown that commitment in support of previous interim study committees.  You’ve gone to Elko, you recognize the issue, and we need your support to continue the work. 

Assemblyman Anderson:

I just wanted to thank Mr. Pugh, first of all, for calling and reminding me of the need for this study.  If it hadn’t of been for his telephone call, I’m afraid that we [would have] probably let it slide by the wayside.  He reminded me of the need.  Of course, I want to again thank the judge for clearly showing why she was such an excellent choice to move to the juvenile bench in Washoe County.  There isn’t anybody who cares more about kids than she.

 

Chairwoman Giunchigliani:

I think maybe we have to look at the word “juvenile.”  A 10-year-old isn’t, anymore.  We’ve had a tendency in our society…  You always have some institutional needs.  I remember my first year teaching in Las Vegas.  I had an 11-year-old who came to me with a file folder this thick, who had already used a gun, shot out windows, attacked somebody with a knife.  This child I was just supposed to do something with.  We don’t have mental health programs in our schools, let alone in our prison system, that are adequate.  Hopefully, some of that will be looked at as well, because that’s just one more piece of a safety net, if that’s the case, but we don’t link them together. 

 

We will close the hearing on A.C.R. 18 and we will open the hearing on S.B. 362.

 

Senate Bill 362 (1st Reprint):  Requires Las Vegas Monorail Company to provide certain documents to Legislative Commission and authorizes Legislative Auditor to conduct audit under certain circumstances. (BDR S-573)

 

Senator Dina Titus, Senatorial District No. 7, Clark County:

I’m bringing you S.B. 362 to provide some legislative oversight into the Las Vegas Monorail Company (LVMC), which is becoming quite the landmark in southern Nevada.  If you’ve driven along Paradise or Desert Inn, you can’t help but notice this new public structure that’s been going up.  Just by way of a little background, I’m handing out to you a fact sheet (Exhibit E) about the monorail and a newspaper article that appeared recently that kind of highlights the reasons why the Legislature needs to have some more oversight on this body. 

 

It was in 1997 that the Nevada Legislature enabled Clark County to franchise the development of a privately financed monorail system in the Las Vegas Valley.  In 1999, Clark County issued a franchise to what’s called the Las Vegas Monorail Company to construct a monorail serving the major resorts on the east side of the Strip.  Today that project is completing construction, and the LVMC is negotiating with the RTC (Regional Transportation Commission) to extend the system to downtown Las Vegas. 

[Senator Titus continued.]  In November of 1999, the Las Vegas Monorail Company sold approximately $650 million worth of debt through the state of Nevada to construct the monorail.  The debt issuance was accompanied by a number of independent studies, including an evaluation by the Department of Business and Industry, to evaluate the risk attendant was selling debt backed by the fare box.  At the time, the finding of those evaluations showed that the debt was high quality and that the fare box was a solid source of revenue to repay the principal and the interest.  Now, bondholders do not have a case with the state in case of default.  They can’t come back to the state if the fare box doesn’t pay off.  Yet, the fact that the state was used to issue the bonds means that the state has a vested interest in assuring that the project proceeds properly and that the bondholders receive their principal and interest payments in a timely manner.  If this doesn’t occur, the states bond ratings could suffer, causing taxpayers to incur a premium through higher interest that could result from a lower rating of the bond for the state.  For that reason, I believe that the state must be diligent about this during a time when revenues are stretched, when we’re looking at tax increases, and when the economic future of the state is uncertain. 

 

I bring you this bill that would give the state some oversight of the operations of the monorail, an entity that is using local funding, state funding, federal funding, and private funding, an entity that was created by the state, an entity that used the state’s good name and reputation to issue bonds, and an entity over which we have very little control and we know very little about.  This bill simply requires that the monorail company provide an annual audit and a financial statement to the Legislature.  If they fail to do that, the Legislative Commission can do an audit. 

 

The second thing it does is it requires an annual performance report to the Legislature that includes a number of things that you find on page 2, subsection 4, that are the things you would find usually in the performance audit, not just a financial audit.  That way the state can maintain some oversight, see that things are going along as they were intended, and protect the interest of our bond rating and our taxpayers. 

 

This has become even more important if you didn’t already think it was just on its face, by a recent news story that involves the contractor, Bombardier, with the monorail company, and the financial problems that it’s having.  I’ve highlighted some of those problems in this article, but you can see there are some serious financial problems with that company, and that suggests that the state should be having more oversight onto the issue. 

 

On the other side, this originally was just the required performance audit.  It was amended as a compromise and the Las Vegas Monorail Company—I don’t think they’re here today—is represented by Morgan Baumgartner, who had to be at the tourism reception, so I think that means they’re okay with it and there isn’t any opposition.

 

Chairwoman Giunchigliani:

I did not support having us use the state bonds.  In fact, I had some concerns about the whole mix of private/public there, so I think it’s timely now.

 

Senator Titus:

There’s concern, too, that if the fare box doesn’t pay for it and some people wonder who’s really going to ride this, they’ll be coming back to the state to help with some of the financing.  If that’s the case, all the more reason for us to have as much information as possible before we go down that path.

 

Chairwoman Giunchigliani:

Absolutely.  The concept of needing the ridership and a program like that is good, but even third-world countries haven’t resorted to the antiquated monorail system that we chose to go on, unfortunately. 

 

Senator Titus:

I’m not sure it’s going to be that much of an attraction when you can ride a roller coaster on the top of the Stratosphere Tower.

 

Chairwoman Giunchigliani:

We will close the hearing on S.B. 362.  Since they’re at a reception we’ll take that as no opposition. 

 

We will take up S.J.R. 6 as soon as Senator Maurice Washington arrives.  We’ll stand at recess [at 6:11 p.m.] for a few minutes. 

 

 [Meeting was reconvened at 6:20 p.m.]

 

We will open our hearing on S.J.R. 6.

 

Senate Joint Resolution 6:  Requests Congress to vote on appointment of Miguel A. Estrada to United States Court of Appeals. (BDR R-1291)

 

Senator Maurice Washington, Senatorial District No. 2, Washoe County:

I’m here on behalf of S.J.R. 6 regarding the nomination of Miguel Estrada to the U.S. Court of Appeals in the District of Columbia, or formerly known as the U.S. Court of Appeals Number 1.  Not to belabor or waste a lot of time, I think for the most part, Miguel Estrada’s résumé is quite impressive.  He has been selected by the President of the United States to serve.  His résumé speaks well of him. 

 

Miguel Estrada was born in Honduras and moved to the United States at the age of 17.  Upon his arrival in this country, he sought the American dream, learned how to speak English very fluently, he pursued his studies, and received numerous awards for his academic achievement.  Miguel Estrada received a degree from Harvard Law School magna cum laude in 1986.  He also received a degree from Columbia College in 1983, with honors as magna cum laude and Phi Beta Kappa.  He has done numerous pro bono works. 

 

I could go on and on, but for the most part, Miguel Estrada comes with high regards and great credentials to serve on the Court.  He would be the first Latin American to actually serve on the Court of Appeals, one of the highest courts in our land, and has the potential to even rise to the Supreme Court.  His nomination has been filibustered for some time due to the fact that Miguel Estrada has not answered the questions concerning his philosophical beliefs.  The last time I checked, to be appointed to the Court of Appeals is not based your philosophical beliefs, but based on how you’ve conducted yourself and your jurisprudence.  It comes with great accolades from his peers, those listed are numerous on the League of United Latin American Citizens, the U.S. Hispanic Chamber of Commerce, the Latin Coalition, et cetera.  Because he refused to answer some of the questions regarding his philosophical beliefs, his nomination has been delayed substantially. 

 

This resolution urges Congress to take a vote, one way or the other, either approve him or disapprove him.  Without going into a lot of history or any other factual information, I think his nomination speaks for itself.  Some would say that we’ve been wasting time regarding this resolution, but I don’t think it’s a waste of time.  I think his nomination, like any other that’s being considered for any Court of Appeals or even the Supreme Court, is very important, concerning all the states within this country.  To have a man of his stature to be considered for the U.S. Court of Appeals is an honor not only to people of color, but especially to this individual for coming up through the ranks and reaching the highest levels within this land.  The resolution urges Congress to cease the filibuster and vote for Miguel Estrada either up or down. 

 

Kaitlan Backlund, representing the Nevada Conservation League:

I’m here to present testimony in opposition to S.J.R. 6.  I handed two letters that weren’t written by our organization, but were written by a collection of national environmental organizations that recognize that there may be some challenges to the environmental communities nationwide with the current administration.  You’ll see that one of the letters is dated July 18, 2001 (Exhibit F) and sets forth some of the qualities and criteria by which the many leaders in the environmental community were hoping that judicial nominees would be able to satisfy before being nominated to any of the courts.  That was then followed up by a second letter on February 4, 2003 (Exhibit G) specifically addressing the nomination of Miguel Estrada.  If they could be entered into the record just for the fact that many of these national groups have local chapters here in Nevada, including the Sierra Club, Trout Unlimited, and the National Audubon Society.  I would also like to just make a few brief points. 

 

One is that the District of Columbia Circuit Court is viewed as the most crucial court for environmental protection after the Supreme Court.  At this time, the Senate has little information to assess whether or not Miguel Estrada respects congressional policies on the environment, such as the Clean Air Act or the Clean Water Act.  I would point to an example of this; Mr. Estrada was questioned specifically about a Supreme Court case regarding American Trucking v. The EPA (Environmental Protection Agency) in which the Supreme Court upheld strong protections that eliminate soot and smog pollution from vehicles.  He was asked directly whether or not he had an opinion on this case and he refused to answer.  This is a problem, I would think, if I were sitting on the U.S. Senate.  Of course I’m not, but I’m glad to see some folks there are taking this very seriously. 

 

In addition to that, there is a concern that the legal decisions on the proposed nuclear waste dump at Yucca Mountain, Nevada, could be decided in this court.  Therefore, it would also be very significant for the U.S. Senate, particularly our Senators, to have some feeling for Miguel Estrada’s legal opinions on environmental concerns.  In addition to that, I would suggest that an absence of disqualifying evidence in a nominee’s record should not constitute sufficient grounds for confirmation.  We should see a nominee that could show a record of support-balanced decision-making for the decisions made in Congress regarding environmental policy and public health.  With that, again, I urge the Committee to oppose this resolution and I appreciate your time this afternoon. 

 

Ellen Pillard, Chapter Chair, Toiyabe Chapter of the Sierra Club:

I came when the Senate heard S.J.R. 5 and S.J.R. 6, and they have forwarded S.J.R. 6 to be heard by you.  I concur with everything Kaitlan has said.  Let me just add that having spent some significant time in the last three legislative sessions seeing how much you have to do and how hard you all work at doing it, I’m sorry that something as meaningless as this resolution takes up your time.  My time I’m willing to give up, but you have much more important things in terms of budgets and taxes and critical juvenile justice concerns to be addressing.  A resolution which in some ways I see as inappropriate to be directed at duly elected representatives in the U.S. Senate, I think is unfortunate.  Therefore, I oppose S.J.R. 6.

 

Senator Titus:

[Senator Titus spoke from prepared testimony (Exhibit H).] I just wanted to share with you a little of the information that I presented on the Senate side that puts this resolution in perspective.  I have to tell you that the rhetoric down the hall was much more inflamed than what you have heard here today with the presentation of this resolution.  So, I’m going to try to tone my rhetoric down as well.  I appreciate Senator Washington having done that.  There are a few facts that you need to know when you hear some of the arguments in favor of this resolution that I think might be interesting to you. 

 

First, one of the points that was made is that the Democrats are being obstructionists and they are delaying this appointment perhaps for political reasons.  The truth is that when the Democrats control the Senate, they set a record-breaking pace in confirming nominees.  The Democratic-led Senate confirmed 80 judicial nominees within the first 15 months of Bush’s administration, more than were confirmed by the Republican Senate during the first 15 months of the Reagan, Bush Senior, or Clinton administration.  On the other hand, more than 12 Clinton nominees had to wait over 500 days to be confirmed, 9 waited over 700 days, 4 waited over 900 days, and 2 waited over 1,000 days.  One, Richard Paez, waited 1,520 days.  Not one time during all of those other nominations and pending nominations did this Legislature send a resolution urging them to move forward and take action. 

 

The second thing is that I find it a little bit offensive to suggest that the proponents of that resolution are pro-Hispanic and the opponents are in some way not pro-Hispanic or are in some way even anti-Hispanic.  Again, some facts are interesting.  When the Democrats led the U.S. Senate Judiciary Committee, they approved six Hispanic nominees to the federal bench.  The Republican record on Hispanic nominees under Clinton, however, was dismal.  Those who never even received a hearing, much less a vote, include Jorge Rangel, Enrique Moreno, Christine Arguello, Ricardo Morado, Anabelle Rodriguez, and Sam Paz.

 

Third, while I appreciate the proponents’ elaboration of Estrada’s résumé and the notion that his credentials are outstanding, and some people might think they are outstanding, let me also share with you some of the credentials of the Hispanic judges who were nominated by President Clinton who never even received a hearing, much less a vote.

 

Jorge Rengel is a Harvard Law graduate with a “well qualified” rating from the ABA (American Bar Association), as is Enrique Moreno, another Harvard Law graduate with a unanimous rating of well qualified by the ABA.  Christine Arguello was the first Latina to graduate from Harvard in 1980, where she served as editor of the Harvard Civil Rights Law Review.  Anabelle Rodriguez was the Attorney General for the Commonwealth of Puerto Rico.  That’s not too shabby of a list either, and they weren’t confirmed, unfortunately. 

 

Fourth, I agree with Ms. Pillard that we have a lot to do in this Legislature and this is a time when we need to be working together.  I think it’s unfortunate to interject something that’s partisan into our debate when what we do with this resolution is going to have no impact whatsoever on what the U.S. Senate does in its consideration of this confirmation.  We ought to be looking at ways to collaborate, cooperate, work together, instead of finding things like this that drive unnecessary wedges between us. 

 

Pat Elzy, Public Affairs Director, Planned Parenthood Mar Monte, Reno:

[Ms. Elzy spoke from prepared testimony (Exhibit I).] On behalf of both Planned Parenthood Mar Monte and Planned Parenthood of Southern Nevada in Las Vegas, I am here to voice our opposition to Senate Joint Resolution 6, which requests Congress to vote on the appointment of Miguel A. Estrada to the United States Court of Appeals.

 

We believe the lack of information available regarding Mr. Estrada’s views and judicial philosophy raise serious concerns about whether he should be given the enormous honor and responsibility of a lifetime appointment to this nation’s second-most-powerful federal court.  Both at his hearing before the Senate Judiciary Committee and in written questions, Mr. Estrada was asked directly about his views on privacy and reproductive rights.  He also declined to provide the Senate with the legal memoranda he wrote while working for the Department of Justice.  Without more information about Mr. Estrada, it would be simply irresponsible to put him on the bench. 

 

Planned Parenthood, the world’s largest and most trusted voluntary family planning organization, has a long-standing history of working to ensure the protection of reproductive rights as well as working to advance the social, economic, and political rights of women.  Because lower federal courts exercise enormous power in deciding cases involving women’s rights, the right to privacy, reproductive freedoms, and other basic civil rights, we believe that judges appointed to these courts must demonstrate a commitment to safeguarding these fundamental rights.  Judicial appointments should be considered in a thoughtful, thorough manner.  Unless and until Mr. Estrada responds to legitimate questions about his judicial philosophy, his nomination must be blocked.  This nominee has not demonstrated a commitment to protect our hard-won civil liberties. 

Planned Parenthood joins the broad coalition of civil rights, labor, women’s, and environmental organizations in opposing Mr. Estrada’s nomination to the District of Columbia Circuit Court of Appeals.  I will not go through the 29 diverse groups since you have it in my testimony (Exhibit I).

 

In conclusion, I ask you to oppose Senate Joint Resolution 6.  I believe the United States Congress should not vote on this appointment until Mr. Estrada has provided more information about his legal views.  Thank you for allowing me the opportunity to express these concerns.

 

Bobbie Gang, representing the Nevada Women’s Lobby; the National Association of Social Workers, Nevada Chapter; and the American Association of University Women (AAUW), Nevada:

[Ms. Gang submitted prepared testimony (Exhibit J).] All three organizations oppose the vote on the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit Court on the basis that they cannot fulfill their responsibility of advice and consent on judicial nominations unless they have sufficient information upon which to make a determination of the nominee’s qualifications.  I’m going to use some information from AAUW’s publications because as a national organization, AAUW monitors and testifies at hearings on Capitol Hill in Washington, D.C., and they are speaking from first-hand observation.  In observing the Senate Judiciary Committee hearings, AAUW believes that nominees should not go forward unless they have fully participated at hearings in the Judiciary Committee and have openly provided information to the Committee proving their qualifications. 

 

AAUW has expressed serious concern regarding the nomination of Miguel Estrada.  I’m going to quote from one of their publications:

 

Mr. Estrada’s interpretation of the law and current legal precedent suggests that he may find it difficult to enforce critical constitutional and statutory rights in the areas of civil rights and civil liberties, worker’s rights, and consumer rights.  Also, nominees bear the burden of establishing that they meet the criteria appropriately applied to nominees to these esteemed positions.  In particular, AAUW is troubled that Mr. Estrada evaded answering important questions at his hearing during the 107^th Congress.

 

I am testifying in opposition to S.J.R. 6 because these organizations do not think that the Nevada Legislature should request the U.S. Congress to allow a floor vote until Mr. Estrada has provided the information requested by Senators. 

 

If this Committee is inclined to send a message to Congress, we suggest that you amend this resolution with the language in S.J.R. 8, Senator Titus’ resolution, which was killed in the Senate Legislative Affairs Committee.  I’d like to just read one section, the first “resolved” part of that. 

 

That the Legislature of the state of Nevada respectfully requests the United States Senate to discharge its constitutional duty to provide Advice and Consent on Miguel A. Estrada’s nomination by securing forthright responses to questions asked of the nominee, and by securing legal memoranda written by the nominee while in the United States Office of the Solicitor General, before rewarding Miguel A. Estrada with a lifetime judicial appointment to the second highest court in the country . . .

 

And it goes on from there.  Otherwise, if you do not choose to amend it, we urge that you not pass S.J.R. 6.

 

Chairwoman Giunchigliani:

I have no one else signed in on S.J.R. 6, so we will close the hearing.  Now, A.C.R. 21, I want to thank everyone’s indulgence for letting me take these bills out of order.  We will open the hearing on A.C.R. 21.

 

Assembly Concurrent Resolution 21:  Declares that preservation of Walker Lake’s freshwater ecosystem is important in public interest. (BDR R‑1302)

 

Lorna Weaver, representing the Sportsmen and Sportswomen of Nevada Wildlife Federation; the Coalition to Save Walker Lake; and the Walker Lake Working Group:

I would just like to say that this resolution basically speaks for itself, outlining the major issues that are related to the viability of Walker Lake.  In brief, it states that “Walker Lake is important for many reasons, including the economy of mineral counting, the cultural aspects, its unique ecosystem as a freshwater fishery, its value as wildlife habitat for migratory birds and an endangered species of trout.”  This resolution also provides some basic history and it states the basic problem:  Walker Lake is going to die if we don’t get water there immediately. 

 

The resolution also shows that should we decide to save the fishery there is a large sum of money in the amount of $200 million to help us with solutions.  That’s in the bill.  All we are really asking here is for official recognition by the Legislature of the problems of the lake.  This statement is very important to the people who live in Mineral County.  Some of those people are here today, and could you please stand?  Thank you.  This statement is also very important to the 18 local, regional, and national organizations that support the Coalition to Save Walker Lake.  We have representatives here from that coalition.  We would also appreciate your support.

 

Joe Johnson, representing the Toiyabe Chapter of the Sierra Club:

This resolution is intended as Ms. Weaver spoke that we simply wish to recognize the importance of the lake to the state of Nevada.  There have been some claims and interpretations of motives that I think certainly were not in our original intent and construction of the language.  We have met with representatives, a number of individuals, and rather than speaking to the resolution as it is here, I would invite the Director of the Department of Natural Resources to present what is in general agreement by the various parties.  There’s still some concern and I believe there’s another amendment to be brought forward by representatives of the Walker River Irrigation District that we may or may not agree in part or whole.  But, we are certainly willing to negotiate and talk to the issues there. 

 

Chairwoman Giunchigliani:

I do appreciate the groups getting together to try to work this out because verbiage is interpreted by one person differently than somebody else.  We want to be careful about the sensitivity of negotiations.  People killed over water in the old days and unfortunately we just want to make sure that we protect this absolute necessary piece of Nevada.

 

Mike Turnipseed, Director, Department of Conservation and Natural Resources; and Leader, Nevada Team in the Walker River Negotiations:

[Read from a prepared statement (Exhibit K).] First let me provide some quick history.  There have been multiple errors of litigation on the Walker River.  One ended in 1919 and a later one ended in 1936.  It went up to the Ninth Circuit and back down in 1940.  This latest round of litigation began late in the 1980s during the last big drought.  The Bridgeport Reservoir was drained and that spawned a whole new round of litigation.  The state of Nevada has been involved in the litigation since 1992, largely representing the Division of Wildlife at the Mason Valley Refuge and also the water rights that they have with Walker Lake.  Irrigation began in the Walker system nearly 150 years ago, primarily to feed the miners at Bodine, Aurora, and in possibly the Comstock.  A large irrigation economy has been built up in Smith Valley and Mason Valley, as well as the Bridgeport Valley and Antelope Valley, California.  Now let me speak to the resolution. 

 

[Mike Turnipseed continued.]  In general concept, I’m opposed to the resolution for the following reasons:  When this litigation began in the 1980s and then we got it in 1990, the United States amended its claims later in the mid-1990s to assert additional service water for the Walker River Tribe, ground water for the Walker River Tribe, ground water for the Hawthorne Army Depot, ground water for the Mountain Worker Training Center up on the west fork of the Walker, various other in-stream flows, public water reserves, and I probably missed a few of the claims filed by the United States on behalf of the tribe and the other federal agencies.  A short time after that, Mineral County and the Walker Lake Working Group sought to intervene in the litigation.  All of this time throughout the last ten years on the one plight and six or seven years on behalf of the other one, they’ve never been able to provide service of process.  In other words, if I’m suing you, I have to let you know that I’m suing you.  Those who are lawyers understand what that means.

 

I became Director almost three years ago and took it upon myself— we had a status conference in Magistrate McQuaid’s court in Reno.  This is all under a federal decree, so any litigation involving water rights or change applications all are sanctioned or heard by the federal court.  I asked Magistrate McQuaid if there was a room where we could talk about settlement.  He was happy to oblige us since it’s been in litigation for ten years already.  I thought there were some possibilities to begin some settlement negotiations, so in August 2001, I sent the Secretary of the Interior a letter asking for a federal negotiating team.  There’s a formal process for a federal negotiating team to be constructed.  That took nearly a year to construct or assemble. 

 

In the meantime, the others of us in the room, there’s the state of California; the state of Nevada; Walker River Irrigation District; Mineral County, Nevada; Lyon County, Nevada; Mono County, California; the United States, and the tribe, although they came to the table later, we sent out proposals for a mediator, a short list of that proposal, did personal interviews, short-listed it again down to three, and once the federal negotiating team was constructed, submitted those three names and just barely, in January 2003, got to our first mediation session.  With all those parties, two states, three counties, an irrigation district, and other federal interest, EPA, military, Forest Service, obviously that has the ingredients to have protracted litigation on in for decades and decades. 

 

We had two-day mediation sessions in January, February, March, and April.  We just recently canceled the May meeting.  The tribe wasn’t quite ready to make their proposals, so we have another meeting session on June 8 and 9.  At any rate, tensions run pretty high, as you stated, because it’s over water, and we’re just now beginning to build a little trust, begin to build a little consensus, and my fear is that just the resolution itself might upset those negotiations.  Somebody might get mad enough to just walk out of the room.  So, that’s my general thought on the resolution.

 

[Mike Turnipseed continued.]  If the Committee wishes to pass the resolution, I’ve Gordon DePaoli’s amendments, actually a substituted resolution, and I like it a lot, but you’ll hear more about that later.  I drafted some amendments (Exhibit L) to the resolution before I came to the legislative building this afternoon, and you have those.  When we met with Joe and Lorna and a representative from Lyon County and Steve and Mary Walker helped facilitate at the meeting, we added some additional language and struck some additional things.  I’ll try to go quickly through this. 

 

In the title of the bill, where it says, “Declaring that the preservation of Walker Lake’s freshwater ecosystem is…” we crossed out “in the public interest” and inserted “important to the citizens of Nevada.”  I’ll get to public interest in just a minute.  That has some extreme meaning in the water law.  Those are the changes that I made prior to coming to the building today. 

 

The first “whereas” is fine, the second whereas is fine.  Some of the group thought we ought to insert another “whereas”:  “The Walker River system is important to either the communities in the basin or the general public.”  We started to say agriculture in the basin and that it’s also important to recreation in the basin and the environment in the basin.  We weren’t sure how to insert all of that, but anyway it was agreement that another whereas needed to go in there representing the upper basin.  The next whereas is fine.  The next whereas is fine.  The next whereas is fine.  The next whereas is fine.  The next whereas is fine. 

 

Turning over to page 2, “Whereas without an immediate influx,” cross out “immediate,” “without an influx of freshwater, the food chain and ecosystem of Walker Lake could be lost in the”—cross out “very near”—future. 

 

We agreed to cross out the entire next whereas, dealing with the Bureau of Land Management (BLM) and the environmental impact statement (EIS).  Let me explain that a bit.  There was a draft environmental impact statement that went out to the cooperators more than a year ago that came under a lot of criticism by the cooperators.  It went back to the BLM to redraft it.  The bottom line is it never came out for a public comment.

 

Assemblyman Beers:

What is a cooperator?

Mike Turnipseed:

I’m not an expert on the NEPA (National Environmental Protection Act) process that the federal agencies have to follow, but in this case, they go out and scope what they’re going to have to cover in the EIS.  In that scoping process, there were other federal agencies and possibly others that joined in as cooperators to make sure they studied the right things.  That draft went out to the cooperators, which I was not, so officially, I’m not supposed to have one.  It went back for redrafting.  One of the criticisms was that it took into the socioeconomic effect of the entire Lyon County.  Well, Fernley is in Lyon County, but it’s not in the Walker River Basin.  Dayton is in Lyon County but it’s not in the Walker River Basin, so I believe they were instructed to go back and determine the socioeconomic impacts of Lyon County in the Walker River Basin.  There was multitude of criticism like that. 

 

There was another EIS drafted and that’s been pulled back and put on the shelf until we get further down this mediation process.  The chair of the federal team in the mediation process want an EIS to cover the possibilities that we end up with in the mediation process.  The next whereas, we took it out, put it back in, and I think we finally decided to leave it in.  It has to do with the $200 million to provide assistance for Walker Lake, Pyramid Lake, Summit Lake in the state of Nevada and, I believe we added, “However, it cannot be used to lease or purchase water rights.”  That’s by the federal court that created the money.  Now we get down to the resolves. 

 

The first “resolved by the Assembly in the state of Nevada and the Senate concurring that the Nevada Legislature hereby declares that,” cross out “preservation of Walker Lake’s freshwater ecosystem, which supports Lahontan Cutthroat Trout, is in the public interest and that…”  Let me explain why that is particularly bothersome to me.  The state engineer will be administering any change applications that are filed or that have to be filed that will eventually move any water anywhere, upstream, downstream, out of storage, into storage, or down to Walker Lake. 

 

There are three criteria in NRS 533.370 that the state engineer uses to evaluate a new appropriation, two of them applied to change applications.  They are: whether the change application is going to interfere with existing rights and whether the change application threatens to prove detrimental to the public interest.  That public interest language is particularly troublesome to me because that is the very criteria, or one of the criteria, that the state engineer would use in evaluating any change applications.  Anything this serious, there will be applications filed, there will be protests filed, there will be hearings held by the state engineer, and there will be appeals. 

 

What I don’t want is one of the appellants, for whatever reason, raising this resolution and saying, “See here, the Nevada Legislature says that is in the public interest.”  The Chairwoman will remember, twice before there were study committees to study the water law and water management, and twice before the Legislature, I think largely in the Senate through Senator Mark James, tried to define “public interest.”  Both times it failed.  After the red, cross out, “All reasonable actions to sustain” stays in, cross out “The,” and we inserted “freshwater ecosystem at Walker Lake should be taken.”  “And be it further resolved that the Nevada Legislature finds and declares that conservation” insert “over the long run is” and cross out that added “but” and the “is one of the reasonable means of acquiring water for Walker Lake,” crossing out the remainder of that resolution. 

 

Chairwoman Giunchigliani:

Thank you very much, Mike, and we do want to be very sensitive.  It’s too delicate a balance, so I do appreciate the groups working together, especially about the issue of the public interest.  Sometimes we read it, and I thought, no big deal, but you’re right, we’ve never been able to resolve what that actually means.

 

Mike Turnipseed:

And negotiations are very delicate.  Nobody has punched anybody out yet, but there have been some tempers flared. 

 

Joe Johnson:

I’d simply like to go on record that we certainly support the negotiation process.  We did not intend to offer any language to interfere in that process.  We’re sensitive to future proposed amendments and would reserve the right to comment on them, perhaps in written form to you and your Committee after we have heard from the Walker River Irrigation District.

 

Chairwoman Giunchigliani:

Okay, and it’s the Irrigation District that may still have some language.  We won’t take this up until Thursday, so that gives everybody a little bit of time. 

 

Gordon DePaoli, Walker River Irrigation District:

What I have handed out and what you’re receiving now is a proposed amendment (Exhibit M), which I suggest is to amend the resolution as a whole.  In my schedule, I was unable to attend the session this afternoon that Mr. Turnipseed just spoke to you about.  I think as I provide my testimony it will fit in with this proposed amendment, which I will cover briefly at the conclusion.  As Mr. Turnipseed indicated, there are a number of related issues pending on the Walker River system. 

 

[Gordon DePaoli continued.]  For those of you who are unfamiliar, the Walker River Irrigation District was formed in 1919 and encompasses approximately 80,000 acres of irrigated land in Smith and Mason Valleys in Lyon County with reservoirs in Nevada and in California.  As Mr. Turnipseed indicated, there are a number of interrelated issues pending on the Walker River system.  As we have stated them in the mediation process agreement, which I will tell you more about shortly, they include claims by the Walker River Paiute Tribe in the United States for additional service and ground water for the Walker River Indian Reservation, as well as claims by the United States for additional surface and underground water for various federal properties on the entire system in Nevada and California including the Hawthorne Naval Ammunition Depot, the Marine Corps.  Mountain Warfare Training Center at Pickle Meadows in California, the Yerington Paiute Tribe, the Bridgeport Indian Colony, and a host of others. 

 

They also include Mineral County’s request to assert claims to adjudicate and reallocate the water of the Walker River system to preserve minimum water levels in Walker Lake.  In addition, there has never been an approved allocation of the water of the Walker River system between California and Nevada.  In the mediation process agreement, we collectively refer to these issues as the Walker River issues. 

 

I say these are interrelated issues because of the fact that we’re dealing with a single integrated system.  As a result of that, issues related to Walker Lake cannot be finding resolution without resolving the claims for additional water for the Walker River Indian Reservation and the other federal properties and the interstate issue between Nevada and California.  The issues related to additional water for the Walker River Indian Reservation and other federal properties cannot be finally resolved without resolving the issues related to Walker Lake and without resolving the interstate allocation issues between Nevada and California. 

 

Finally, the interstate allocation issues between Nevada and California cannot be conclusively resolved without resolving the Walker Lake issues and the federal claims for more water.  Effective January 14, 2003, the United States; the state of Nevada; the state of California; the Walker River Paiute Tribe; Mono County, California; Lyon County, Nevada; Mineral County, Nevada; the Walker Lake Working Group; and the Walker River Irrigation District agreed to attempt to resolve the Walker River issues through mediation with a third-party mediator.  As Mr. Turnipseed indicated, primarily because of the complexities associated with getting the federal government to the negotiating table, it had taken almost two years to get to that point.  We are just now beginning the substance of that process as it relates to the Walker River issues. 

 

[Gordon DePaoli continued.]  This resolution, if you enact it in its present form, and I would suggest if it is enacted, even as proposed to be amended, in my judgment it undermines the mediation process in several ways.  First of all, it sends the message to all of us at the mediation table that while we give lip service to the mediation process, we should seek other solutions outside that process.  Secondly, it singles out one, only one, of the many issues on the system, and suggests that the Legislature declare that single issue be addressed in particular ways and that it be solved at a particular level, which is, in the original resolution, “Preservation of a freshwater ecosystem to support a particular kind of fish.”  Certainly, all of the participants in the mediation process understand the importance of that goal, but there are additional issues to solve and there are different levels of supporting that particular fish from a put-and-take fishery to a natural reproducing fishery. 

 

In addition, the original resolution directed the solving of the Walker Lake issue in a particular way.  One was the conservation of water and acquisition of water rights.  The amendments, as I have seen them, are related only to conservation.  Those are only a couple of the solutions that are being considered in the mediation process.  None of these solutions have been fully explored in that process.  No information is provided to you on how these solutions may affect the other issues that we have to solve if we’re going to solve any of this.  No information is provided to you on the efficacy of conservation in getting water into the lake.  What I mean by that is, under Nevada law, conserved water presently accrues to the benefit of the system, so that it would take legislative action to ensure that conserved water gets to Walker Lake.  Conserved water, under the present law of the state of Nevada, would simply be available to serve the next priority.  I’m suggesting that conservation is not an appropriate way to look at attempting to solve this problem, but to the extent that we go at it in that direction, we will need to come to this Legislature and ask for some changes to Nevada law. 

 

Finally, there is no consideration given to the upstream impacts of these particular solutions.  For example, although conservation in a lot of ways sounds like the thing to do, one of the things that people have to look at when they look at conservation as a solution is what other impact that will have.  For example, will it impact domestic wells in the areas where the conservation has occurred, because recharge for domestic wells does come from irrigation ditches and other places? 

 

It seems to me that both of these resolutions place the state of Nevada in a box that it should not be in when considering all the solutions that may be available to solve all of the interrelated problems.  As Mr. Turnipseed indicated, the original resolution with its use of the public interest language had the potential to affect the state engineer process, and in my judgment has the potential to affect the existing litigation related to the applicability of the public trust doctrine to the claims for Walker Lake.  In short, you shouldn’t act on this resolution in its present form because it undermines the one process that has the possibility of solving these problems in a timely fashion.  You also should not act on it in its present form, or as amended, because in my judgment it is not a fair statement of the public interest of the state of Nevada on the Walker River system. 

 

[Gordon DePaoli continued.]  Here is where I hit with my proposal.  The original bill, and I couldn’t quite follow everything that Mr. Turnipseed was saying, points out the importance of Walker Lake to the economy of Mineral County, but there are other important economic issues upstream on the Walker River system.  The upstream Walker River system, within the District, is the principal agricultural area in Lyon County, Nevada, and is the most productive agricultural area in Nevada on a per acre basis.  The total market value of agricultural products in Lyon County in recent years has regularly exceeded $50 million a year.  The farmers within the Walker River Irrigation District produce more white onions than any other area in the United States, and about half of all the seed garlic of California garlic growers comes from western Nevada, most of it grown within the boundaries of the district.  An additional 8,500 tons of potatoes are produced by farmers within the District.  The District’s reservoirs, which are at Topaz Reservoir, which is partly in Nevada and partly in California, and Bridgeport Reservoir, which is in California, are prime recreation areas for Mono County, Lyon County, and Douglas County.  There are recitals about the importance of the ecology of Walker Lake. 

 

They are also important ecological issues upstream.  The irrigated lands within the District provide extensive habitat and food for eagles, geese, ducks, quail, wild turkeys, deer, and many other birds and animal.  Bridgeport Reservoir produces the food chain, which makes the East Walker River in California and Nevada the world-class German Brown Trout Fishery.  The district is home to the Mason Valley Fish Hatchery and Wildlife Area, owned by NDOW (Nevada Department of Wildlife).  NDOW is the single largest water-right holder within the boundaries of the district.  The Mason Valley Hatchery rears cutthroat, rainbow, cut bow, and brown trout for planting in streams, rivers, and lakes throughout Nevada. 

 

The recitals of the bill speak to recreation being recognized as a beneficial use.  The upstream uses are also beneficial.  The recitals in the bill, and I think in the proposed amendment, speak to the difference between Walker Lake in the 1880s and the difference in today.  There are a lot of things about Nevada in 2003 that are different than Nevada in the 1880s.  I’ll give you two examples:  In the 1880s, there was a lake called Winnemucca Lake near Pyramid Lake.  That lake is now dry.  In the 1880s, the Truckee and Carson Rivers supported about 113,000 acres of wetlands.  As a result of development in western Nevada, those wetlands have been reduced to about 15,000 acres in 1987. 

 

[Gordon DePaoli continued.]  In the 1800s, Lahontan Cutthroat Trout flourished throughout the Truckee, Carson, Walker, Quinn, and Humboldt River Basins.  Today, self-sustaining Lahontan Cutthroat populations occur in 10.7 percent of their historic river habitat, and four-tenths of a percent of their lake habitat.  For those of you from southern Nevada, you know that the Meadows are not today what they were in the 1800s and the early 1900s. 

 

I think that Mr. Turnipseed’s proposed amendment corrects the recitals concerning the immediate need for influx of water and the loss of the ecosystem in the very near future.  Those recitals, which were in the original bill, were not consistent with the information that has been provided to us.  They have also corrected the information related to the authorization, with respect to the farm bill and the use of funds from the farm bill. 

 

The resolution itself as originally drafted, it seemed to me, really ignored the expense of the declarations.  By expense of the declaration that you were asked to make originally, I don’t mean in dollars, I mean in terms of how much loss of upstream agriculture are you willing to see to meet that demand?  Fifty percent?  Ninety percent?  Eighty percent?  How much loss of tax base upstream?  How much loss of recreation upstream?  How much loss of ecology upstream?  How much loss of economy upstream?  You ought to have more information about that. 

 

Those are the things that we are grappling with in the mediation process, and those are the things that we set up the mediation process to deal with.  It is that process which, in my judgment, has the best opportunity to resolve all of these issues on the Walker River system in a timely fashion.  For that reason, I would ask you not to act on this resolution in its present form, and I would ask you to consider, at least, the one I have drafted, which I will just tell you about quickly. 

 

The recitals are an attempt to bring some balance to the resolution, to recognize that it flows out of the Sierra Nevada from California, to recognize the upstream facilities, and the facility on the Walker River Paiute Indian Reservation of Weber Reservoir.  The next to the last “whereas” on the first page is an effort to recognize the importance of the system to significant recreational, ecological, and economic benefits in California and in Nevada from the top of the system to the bottom of the system, including Walker Lake.  The next recital is intended to reflect the issues that are there.  The final recital speaks to the mediation and the resolution part of it asks that you declare that all reasonable actions be taken to resolve those issues through the ongoing mediation. 

 

[Gordon DePaoli continued.]  I have also altered who you might send the resolution to.  I know Governor Guinn is very familiar with this.  I have left him in.  I have added Governor Gray Davis, as well as the participants in the ongoing mediation.  I added Governor Gray Davis for a specific reason.  One of the difficulties we are having, and you all know it here, is that California is having a very difficult time financially participating in these discussions.  I do think it would be helpful if the governor of California knew that the Nevada Legislature was interested and noted that California is participating in this process and needs to continue to participate. 

 

When I walked in this evening, there was sort of a general proposed amendment, which I suggest that you not do for a couple of reasons.  One is that public interest of the United States, the public interest of Indian tribes, the public interest of all federal interests on the system are at the table.  The public interest in the state of Nevada, in my judgment, is at the table through all of the participants in the process, including the Department of Conservation and Natural Resources, Mineral County, the Walker Lake Working Group, Lyon County, and the Walker River Irrigation District. 

 

One of the difficulties we had was we had to have the mediator mediate the mediation process agreement.  The reason we did is that the Department of Justice for not bad reasons is very concerned that the confidentiality of the process be maintained, that information in the process not be used in litigation, and so in the mediation process agreement, we have confidentiality provisions and provisions as to who may participate.  Because of those concerns, the Department of Justice will not even permit representatives of the congressional delegations from the two states to sit in on the process.  So, it would be very problematic if the Legislature attempted to add two persons to the process for that process. 

 

Assemblyman Anderson:

I recognize that you have a long history with the water projects from your experience with the Sierra Pacific Power Company and this area for a long time.  These lakes are all residual lakes.  As such, their death is going to happen.  Other than the fact that we have some giant snow storm that’s going to give us a billion feet of snow up there, are we going to change this ecosystem, and why do you believe that the Nevada Legislature would not want to be involved in this on an ongoing basis? 

Gordon DePaoli:

First, you are right, this lake is a terminal lake, and because it is a terminal lake, which means that it has no outlet, sooner or later, it will eventually get to a point where it is not a freshwater ecosystem.  The issue is how soon and when that would happen.  I think what all of us are striving to do in this process is to try to postpone that as long as we can, solve the other issues that are in the system, and at the same time not destroy the upstream interest economy, ecology, and recreation. 

 

Obviously, the Nevada Legislature would be and is concerned about these issues, and properly should be.  If and when solutions are found, I suspect that we may very well be back in front of the Legislature asking for specific help, whether it is with changes to the water law, or in some other fashion, to help implement whatever we come up with.  But that’s different than saying the Nevada Legislature needs to have somebody at the negotiating table. 

 

My experience on the Truckee River system, which I have been involved in since the late 1970s, the interests in the state of Nevada in that process have been very adequately and ably represented by the Department of Conservation and the other parties at the table, with the exception of the folks from California.  Some of the folks from the United States also have interest of the state of Nevada in mind.  In that process, we did come to the Legislature from time to time with things that were needed to help us move that process along.  The two that come to my mind, one related to getting the prohibition on installation of water meters in Reno and Sparks removed; another was related to the claim of the Pyramid Lake Paiute Tribe to the unappropriated water of the Truckee River.  The Legislature has been involved here, but not directly at the negotiating table.

 

Chairwoman Giunchigliani:

Are you one of the mediators or negotiators, or does the Irrigation District recommend some individuals who are part of this mediation?

 

Gordon DePaoli:

The Irrigation District is one of the parties to the mediation process agreement.

 

Chairwoman Giunchigliani:

And how many individuals are there?

 

Gordon DePaoli:

Probably 25 to 30 at one time.

Chairwoman Giunchigliani:

That’s a lot of people.  We appreciate the sensitivity and we will definitely take into consideration your concerns.  Perhaps you could work with the others.  I do appreciate that it’s not just Nevada that we’re dealing with here, and I think that’s what you’re also trying to represent, is that where it did start?  Where’s your upper level?  What’s happening in California?  So, no one feels any offense that they haven’t been mentioned to some extent.  Is that where you’re kind of trying to get?

 

Gordon DePaoli:

That is part of it.  We simply are not going to be able to solve just one of these issues.  We are either going to solve them all, or we’re just going to continue to have a problem.

 

Chairwoman Giunchigliani:

As you mentioned, the claims and everything else are all still key to making anything resolved.  I think the whole intent, at least from the sponsors and my discussion with them, is we wanted to declare that we have a precious resource, we believe in it, and we’re behind whatever you can do.  So, we’ll see if we can find the words to say that.

 

Chris Miller, President, Nevada Wildlife Federation:

I’m representing a little over 1,100 members, basically hunters, fisherpersons, and outdoor enthusiasts, who support the habitat that allows them to do these outdoor activities.  Keeping Walker Lake viable is an important part of that.  I was involved in Committee earlier today.  If we could take out the hot words, “public interest,” and maybe put “citizens of Nevada,” I think the resolution is a good resolution. 

 

I do not see how my personal opinion would hamper mediation.  We need mediation, but I think the state of Nevada should take an interest in this blue jewel in the desert.  It affects cultural and natural resources, international and migratory bird laws.  It’s very important and I think you should be interested in it.  Hopefully, with mediation, they can solve the problems, because we don’t want to hurt the river users that could be done with proper water uses.  I don’t know what they’ll come up with.  Installing proper enforcement for water meters, or whatever.  But we’re asking you to take an interest in this resolution.  Maybe do a little worksmithing, but consider it an important part of Nevada for all the users, the recreationists, especially wildlife and people of Mineral County.

 

Assemblywoman Pierce:

So, you’re all right with the way Mr. Turnipseed amended it?

 

Chris Miller:

Right.  If it means that we can get a resolution showing support of the Nevada Legislature, I would like to have a resolution, yes.

 

Assemblyman Grady:

First, I want to thank you [Chairwoman Giunchigliani], because when I approached you the day that this was introduced, I was the only one of the 63 of us here that had not signed on it.  You were very gracious to say we will have a hearing on it and work this out in your usual manner of getting the folks together.  So, I thank you there. 

 

I have the distinction of having three rivers, the Walker, the Carson, and the Truckee, in my district.  Both amendments, I think, go a long way to correct what we had in mind.  I did not see the one from the Irrigation District until Mr. DePaoli got here this afternoon.  I like it, because I think it’s positive and it’s taking a position that we support the mediation group.  Fighting over water whenever you can get the folks to sit at the table is a huge step in the right direction.  I do again thank you for giving us this time tonight.

 

Chairwoman Giunchigliani:

Thank you for your words, Tom, because I know you had some concerns and some ideas, as well. 

 

Susan Lynn, representing Public Resource Associates, Reno:

I have been a long-time proponent of protecting Walker Lake because I think it is a very important critical habitat and location for the state of Nevada.  It fits perfectly into the Nevada tourism promotions of outdoor adventure and recreation.  I also want to say that we need to learn from our mistakes of the past.  We have had historical losses of other lakes and we do not need to lose one more. 

 

This lake has no water rights.  The Division of Wildlife may have flood rights for the lake, but there are no other water rights.  The only time the water gets to the lake is when we have a superb snowfall.  There have been studies to show that the lake would be much higher today if there were no diversions, but we all recognize the fact that we do have upstream users, and we are seeking a balance in that use; some for the lake, some for agriculture, and some for recreation. 

 

The resolution, as it stands now, does not propose any solutions.  We are not proposing them in this resolution.  We are only asking for recognition of the problem at the lake.  We do not think that the negotiations will cease.  There are probably people who will be slightly upset, but I don’t see this as an offensive measure.  It is just a recognition measure for a lake that is in serious trouble. 

 

The total dissolve solids, or salts in the lake, have risen to the point where the fish, especially one of the fish, has not reproduced for the last two years.  They spawned, but the eggs don’t survive in the saline water, so we have that problem.  It’s part of a whole food chain system where we lost two of the zooplankton that the fish feed on.  Then, the birds feed on the fish and so on up the line.  When we have no fish in the lake, then we have no economy for Mineral County.  They are almost a destitute county.  So, we hope that you will give consideration to that, in understanding that we are only seeking to balance use of water in the system.  We appreciate the upstream ecosystem and we think it’s important, but we also think the lake is very important and it has no rights right now. 

 

We request your support of A.C.R. 21 as Mike Turnipseed amended it today.  We have not had the opportunity to review Mr. DePaoli’s comments, and we would like the opportunity to do that before it comes back to you in the work session.  We think this legislation is an opportunity to raise awareness of the lake’s problems.  Again, we only ask for the recognition of it, its problems, and the people who survive on it.  We have nothing to bargain with, but all we ask is for the survival of Walker Lake as a freshwater ecosystem. 

 

David Fulstone, Chairman, Lyon County Board of Commissioners:

Lyon County is the fastest-growing county in the state of Nevada now, but it’s also consistently either the number one or number two agricultural county in the state of Nevada.  As you know, we’re the most arid state and we’re one of the smallest agricultural states in the United States.  We support 80,000 acres in Lyon County in the most productive land in the state.  Some of that’s been talked about before, so I won’t go over it again. 

 

The interstate stream of the Walker River is mostly in Lyon County.  It flows out of the Bridgeport area, down through the valley of Smith Valley, Mason Valley, on down to the Paiute Tribe and then to its terminal lake, Walker Lake.  The 150 years that we have had agriculture in Lyon County, I want to point out that we are not a reclamation project, the government didn’t put this project together.  It was the families, the farmers, with their own money and their own hard work that built the system that built the dams, and have paid for them, and have maintained the system for the last 150 years. 

 

We recognize the challenges on the river, the need for water, just the shortage of water, for agriculture, for recreation, and also the critical needs of Walker Lake.  Lyon County supports the mediation process; I am the team leader of the Lyon County group, which includes four members on the meditation group.  We very much support the comprehensive resolution of all the problems on the Walker Lake.  I have to say that my preference is for Mr. DePaoli’s substitute resolution.  I think it really points out all of the problems and issues on the Walker River, including Walker Lake, and including the claims of the tribe and the claims of the federal government.  I think it’s a good product and I think it’s something that we can all be proud of as a resolution saying that Nevada has stepped up to the plate to support the resolution of these problems on our river.

 

Kaitlan Backlund, representing the Nevada Conservation League:

We were also involved in the initial effort to bring this forward to the Legislature.  I would like to say and reiterate again that the intent was to have something very broad in language that just simply stated that Walker Lake is important.  That ecosystem is important to the state of Nevada.  We would like to see that intent on behalf of California, as well.  We are trying to keep the language purposely broad, and obviously not broad enough, just so that we wouldn’t interfere with the ongoing mediations that were in process.  Some of the people who helped bring this forward were involved with that and were very conscientious about not wanting to violate the confidentiality agreement that was signed. 

 

I don’t think that the intent was to ask this body to resolve the issues surrounding this freshwater ecosystem.  We have very talented, skilled, knowledgeable people who are clearly working on this process.  Those are the folks that I can definitely see going with some language to support that process.  I would also like to suggest that since there are so many people here who are participating in the mediation process that they have the chance to go back to that group as messengers about the fact that this is not a resolution designed to topple the tables in one direction or another.  It is designed to give the state an opportunity to indicate its support for the importance of this issue and that it be addressed.  In that, I would suggest that we are simply in support of the amendments presented by Mike Turnipseed.  We haven’t had a chance to review the other ones, but certainly look forward to working some language out. 

 

Toby Montoya, representing the Walker Lake Working Group, Hawthorne:

I’m very much in support of Walker Lake and the original copy written to you.  I don’t see any changes necessary because there is nothing being asked.  There’s nothing saying that the farmers shouldn’t receive any water.  We’re just looking for something to help us out, which is not being done right now.  Since 1882, Walker Lake has dropped 140 vertical feet.  I’ve never seen any lake like that happen before, unless it’s dried up, and Walker Lake has not dried up.  As they said before it is a terminal lake.  That means that there’s no outlet, it’s [not] going to dry up.  Walker Lake is a rare lake and it has just as much life as any other lake.  Harry Reid, at the Senator’s symposium last year in Hawthorne, had research showing that the levels in 1882 were the first known records of the lake’s elevation.  That would be higher now if there was no irrigation.  Irrigation is bound to happen, especially when there’s plentiful water in the river, but now we aren’t receiving any water.  We used to receive from 250,000 acre-feet of water up to 300,000 acre-feet.  Now we’re receiving zero.  Me and my friend go there and check on it all the time.  The amount of water going there is the amount of water that comes out of a hose.  That’s not going to support an entire ecosystem.  People from Mesa Valley and Yerington [wouldn’t agree], but we’re not asking to take all the water.  They want [the same amount] of water they have now, but there are two areas.  You need to mix it up and help both out.  It’s very important to Mineral County because if you’ve ever been to Hawthorne, you’ll see there are not too many things to do or jobs there.  Besides Walker Lake, there aren’t too many reasons for anyone to come to Hawthorne.

 

If you go there July 4, you’ll see a lot of people.  All the stores are doing well.  The only reason is the lake.  Walker Lake holds fishing derbies and if there’s no water, these fish are going to be dead and [there will be] no reason to come to the lake except to come see 8 million dead fish.  That won’t be too good for tourism.  We just want some water going into the river.  There’s no water.  They show Topaz, a reservoir, they probably do well up there too, but this is a natural lake.  I see that comes first.  There are people who have jobs, too, who live off this river to support their families farming, but they could spare a little bit because we’ve spared a little bit for a long time here.  It’s just sad to go there.  You go there a year ago from today, you’ve got to walk 100 feet down at some places just to get to the lake from where it was last year because it drops at a steady rate, four feet a year.  That can’t be good.  As they were speaking, the TDS from before, and back in 1882, things do change, but the research shows things wouldn’t have changed, it would have only been for the better.  It has quadrupled.  The fish can’t live off of that.  We’re just looking for you to recognize this, because nothing is being done and we need something done now.  

 

All this is saying is Walker Lake is an important resource not only to our county but also to Nevada as a whole.  We’re all Nevadans and we all want to support one another and this is very important to our county and the people around it, even people in Lyon County, because if you look in our paper, people winning the fishing derby from the last five years are people from Yerington.  I know they enjoy using our lake also, not just Mineral County people. 

 

People in our own county need to be more aware too, because they’re not as much support because they don’t realize the importance of the lake.  People don’t even know that now it’s at the lowest rate recorded.  We’ve never seen it drop as low as this.  We just want it to be at a sustained rate and anything such as this that would allow people to see what’s happening could help the fighting between the two groups.  We just want it so it’s something that we don’t have to worry about.  We have to worry about landowners, too.  We have houses and nobody wants to buy a house.  They invested $150,000 on a house, but nobody is going to want that when you’re living on a dried-up lake.  It’s going to hurt them.  I don’t see it affecting too many people in Lyon County or California or whoever is using the irrigation out.  It’s going to hurt a lot less people there by letting just some of their water go, then killing an entire lake, which in the end is going to kill an entire town, because there’s nothing there.  That’s one thing that is there and it could still be there if we help it out. 

 

Chairwoman Giunchigliani:

It’s wonderful to see youth involved.  Welcome to the world of politics.  I think you might have a future.  To quote you, “We’re going to mix it up a little bit.”  Thank you very much.

 

Assemblywoman Pierce:

You had a statistic.  I think you said 250,000 acre-feet.  Was that correct?

 

Toby Montoya:

That’s what I think it is.

 

Assemblyman Pierce:

And when was it that amount reached the lake?

 

Toby Montoya:

1982, before irrigation had begun to Walker River from a dry year, up to 300,000 acre-feet per year.  I personally check on it.  There are a lot higher people that know what they’re talking about more than me, but I see zero water coming in there, besides from a well. 

 

Chairwoman Giunchigliani:

And even those of us from southern Nevada just as we drive up, I drive the state regularly and it’s appalling to see how much it’s down. 

 

Assemblyman Grady:

There are a lot of Lyon County fishermen that go there, but I think you left out one of the most important things.  Hawthorne has one of the best Armed Forces Day parades and fun time.  We’ve been there many times, and the town is to be congratulated.  They go all out for Armed Forces Day and it’s a fun day.

 

Chairwoman Giunchigliani:

I have no one else signed in to testify.  I would ask the groups…  It’s touchy, but see what we can work out, so everybody feels good, and give some support.  I like the idea of mentioning Gray Davis, so that the mediation team has some support as well.  We’ll take this up on Thursday, so if you have any language or need money assistance, let me know.  Thank you.  We will close the hearing on A.C.R. 21.  We will move to our work session document (Exhibit N).  I also have a BDR.  I need an introduction. 

 

• BDR R-1349 — Provide compensation of clergy for services rendered to Assembly and Senate during 72nd session of Nevada Legislature.  (A.C.R. 28)

 

ASSEMBLYMAN CONKLIN MOVED FOR A COMMITTEE INTRODUCTION OF BDR R-1349.

 

ASSEMBLYWOMAN MCCLAIN SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Christensen was not present for the vote.)

 

We’ll take up A.C.R. 10 [on the work session document (Exhibit N).  This is the one that we discussed last week to try to flush out the potential amendments. 

 

Assembly Concurrent Resolution 10:  Directs Legislative Commission to conduct interim study of operations of Public Employees’ Benefits Program. (BDR R-1111)

 

The additions were from Woody Thorne.  We just clarified that the working group could be at least nine members instead of the seven that we listed.  We tried to list some of what Mr. Grady recommended and then left it more global so that we could have the working groups from the local trusts to see if they wanted to build a consortium.  Assemblywoman Leslie had agreed early on when her prescription drug bill had been in the commission.  We could include them also looking at the purchasing power of prescription drugs.  That’s also suggested in here as well. 

 

Assemblywoman McClain:

What was Assemblywoman Leslie’s request?

 

Chairwoman Giunchigliani:

She had a bill to establish a commission on prescription drugs.  We didn’t feel it was appropriate to do that, but she worked with Purchasing and they came up with some language that they felt would be appropriate for the interim study to take a look at.  The pharmaceutical programs, how we could do a statewide buying consortium.  There may be some language that’s prohibitive in statute that wouldn’t allow commingling of different types of public employee groups to actually form a consortium.  We thought this would be appropriate to look at, as well, because the buying power is part of what will help drive the cost down. 

 

Assemblywoman McClain:

I just don’t want it take over the focus of this bill.

 

Chairwoman Giunchigliani:

No.  It’s just one small component.

 

ASSEMBLYMAN CONKLIN MOVED TO AMEND AND DO PASS ASSEMBLY CONCURRENT RESOLUTION 10.

 

ASSEMBLYWOMAN McCLAIN SECONDED THE MOTION.

 

We have not approved any interim studies yet.  This would be our first one.

 

Assemblyman Anderson:

Do we know how many we’re going to have?

 

Chairwoman Giunchigliani:

Yes.  Three.  The vice chairman was negotiating today with the Senate and it’s three in each house.

 

THE MOTION CARRIED.  (Mr. Christensen was not present for the vote.)

 

[Chairwoman Giunchigliani opened the hearing on Senate Bill 123.]  There were no amendments that had been proposed.  This was Senator Titus’ bill, and I believe Mr. Parks wants to let this one be the one that moves as the vehicle.

 

Senate Bill 123 (1st Reprint):  Prohibits public officers and employees from requesting or otherwise causing state and local governments to, under certain circumstances, make expenditures to support or oppose ballot questions or candidates. (BDR 23-214)

Assemblyman Conklin:

Just for confirmation, this is the exact same bill this Committee has already passed. 

 

Chairwoman Giunchigliani:

Assemblyman Parks wishes this one to go forward rather than his.

 

ASSEMBLYMAN CONKLIN MOVED TO DO PASS S.B. 123.

 

ASSEMBLYWOMAN McCLAIN SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Christensen was not present for the vote.)

 

The next bill is Senate Bill 221.  This was Senator Nolan’s bill.  There were no proposed amendments. 

 

Senate Bill 221 (1st Reprint):  Prohibits lobbyist from misrepresenting authorization from Legislator to request certain services from employee of Legislative Counsel Bureau. (BDR 17-1057)

 

ASSEMBLYWOMAN McCLAIN MOVED TO DO PASS S.B. 221.

 

Assemblyman Anderson:

This bill, I think is well intended, but I thought there was a commission that already handled the issue in telling people that they couldn’t go down there anyways and we didn’t accomplish anything.  I think it’s a feel-good piece of legislation, but it’s not going to do anything.  I’m a little hesitant about it, as a result.

 

ASSEMBLYMAN BEERS SECONDED THE MOTION.

 

Assemblywoman McClain:

Is it a problem?  We on occasion pass legislation that doesn’t get too much done. 

 

THE MOTION CARRIED WITH ASSEMBLYMAN ANDERSON VOTING NO.  (Mr. Christensen was not present for the vote.)

 

Chairwoman Giunchigliani:

That’s all I have for this evening. 

Assemblywoman McClain:

We have five Assembly proposed interim studies and we’ve just approved one?

 

Chairwoman Giunchigliani:

Correct.  There are times when the Senate gives us some of theirs or we join them together so we can get one more out there.  We also try to be sensitive to the size of the committee so it doesn’t get overburdened with legislators.  We may want to increase a couple of these by one or two, just so we have a balance, so more people can participate in the long run.  Seeing no further business, we are adjourned.  [The meeting adjourned at 7:59 p.m.]

 

RESPECTFULLY SUBMITTED:

 

 

 

Corey Fox

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Assemblywoman Chris Giunchigliani, Chairwoman

 

 

DATE: