MINUTES OF THE meeting
of the
ASSEMBLY Committee on Natural Resources, Agriculture, and Mining
Seventy-Second Session
May 16, 2003
The Committee on Natural Resources, Agriculture, and Miningwas called to order at 2:03 p.m., on Friday, May 16, 2003. Chairman Tom Collins presided in Room 3161 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Tom Collins, Chairman
Mr. Jerry D. Claborn, Vice Chairman
Mr. Kelvin Atkinson
Mr. John C. Carpenter
Mr. Chad Christensen
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Pete Goicoechea
Mr. John Marvel
Mr. Bob McCleary
Mr. Harry Mortenson
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall (excused)
GUEST LEGISLATORS PRESENT:
Senator Mike Schneider, Clark County Senatorial District No. 11
STAFF MEMBERS PRESENT:
Linda Eissmann, Committee Policy Analyst
Erin Channell, Committee Secretary
OTHERS PRESENT:
Anthony Bandiero, Governmental Relations, Nevada Emissions Testers Council
Anthony Granito, Chief Investigator, Compliance Enforcement Division, Nevada Department of Motor Vehicles
Joe Guild III, Representative, Nevada Cattlemen’s Association
Hugh Ricci, P.E., State Engineer, State Engineer’s Office, Division of Water Resources, Nevada Department of Conservation and Natural Resources
Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation
David Holmgren, Vice Chairman, Nevada Livestock Association
Harry Swainston, Citizen
Chairman Collins:
[Chairman Collins called the meeting to order at 2:03 p.m. Roll was called.] We will start as a Subcommittee. I just left the Government Affairs Committee while in discussion before making an amendment. I told them I could stay until 2 p.m. I apologize to you for us being late. [Commented on several Committee members joining the meeting; still a Subcommittee.] Is Mr. Wilson present for S.B. 135? That’s too bad; I wanted to deal with that bill first. Is there anybody here representing Senator Schneider for S.B. 18? We’ll contact him and see if he wants to testify on this bill. We’re not going to do S.B. 336 yet. We’ll open the hearing on S.B. 76; we might interrupt that hearing to take care of other legislation as people show up. This is a work session. Is Mr. Guild here?
I might go back to Government Affairs if a motion has been made. While we’re waiting for two more Committee members, four of whom are in Government Affairs, I’ll recess. [Recessed at 2:05 p.m. Reconvened at 2:13 p.m.] We’re reconvened for this afternoon’s meeting. We’ll open the hearing on S.B. 18, sponsored by Senator Schneider. It’s a simple little bill. I’ll express to the Senator that we were going to amend about six things into this, and they all got taken care of. We’re ready now to process your bill.
Senate Bill 18: Requires Department of Motor Vehicles to establish by regulation procedures for inspecting certain stations involved in control of emissions from engines. (BDR 40-177)
Senator Mike Schneider, Clark County Senatorial District No. 11:
[Introduced himself.] I’m king of the page-and-a-half bills, and that’s the way I like them. If they get much longer than that, they start to confuse me. If you do amend it, if you’ll just do a separate page for each one, then I don’t have to worry about going through there.
Senate Bill 18 was actually brought to my attention by some constituents. Assemblyman Mortenson attended a couple of the meetings and spoke with many of the gentlemen who have smog inspection stations. What was happening was the DMV (Department of Motor Vehicles) would run sting operations in those inspection stations and run a vehicle through there that was not a proper vehicle. If the inspector didn’t catch it, they would know they were going to cite them, but it would come in the mail a month and a half later.
The smog inspectors had no clue as to what they missed, what happened, and which car was an issue. They got a big fine, and it wasn’t a learning process for them. The smog inspectors want to do a good job. That was their testimony to Assemblyman Mortenson, to me, and on our side in the Senate. They want to do the right thing, and, if they are making a mistake, “Let us know right now.” It was a “gotcha” thing, and a month and a half later they were getting a violation in the mail. Assemblyman Mortenson was just relating some of the incidents to me, also. I’ll let him elaborate, if he’d like to, on some of the things he heard. With that, I’ll stop; short testimony is usually better.
Chairman Collins:
There are others signed in on this to speak: Mr. Bandiero, Nevada Emission Testers Council; and Mr. Granito, DMV Compliance.
Senator Schneider:
Assemblyman Mortenson could enlighten the Committee also since he helped work on this.
Chairman Collins:
I think we’re going to hear, because I received the same calls you did and you introduced the bill, that the DMV is already putting this in.
Anthony Bandiero, Governmental Relations, Nevada Emissions Testers Council:
[Introduced himself.] I just want to go on the record, very briefly, to be in full support of this bill.
Anthony Granito, Chief Investigator, Compliance Enforcement Division, Nevada Department of Motor Vehicles:
[Introduced himself.] I’m here to also offer testimony in support of S.B. 18, which will require the establishment of regulations. If this bill becomes law, it will require amendments to NAC 425B (Nevada Administrative Code), emissions from engines. The current regulations do not address how the Department of Motor Vehicles (DMV) conducts covert emissions testing. We’ve been listening to the industry; we have made several changes in our procedures. If this bill becomes law, they will be incorporated into the NAC procedures, especially the procedure which concerns the industry on notification of a failed emissions test.
Now we make an immediate notification. The person who takes the car in, the covert driver, will call the emission technician, and the investigator will be a block away. He will come up to the car, inform the inspector of what he did wrong, point out the car, and show him what went wrong. If it’s a first violation, we’ll give a cease and desist letter; if it’s after a first violation, we will issue a citation with a fine. As a matter of fact, the Department has a review committee in process to look at the whole NAC right now. We are reviewing the NAC, not only this portion of it, but other portions as well. We can incorporate that into a review of the NAC.
Chairman Collins:
At the end of the inspection, your enforcement inspector comes up and explains what happened.
Anthony Granito:
Exactly. It’s like getting stopped for a traffic ticket. If you break the law, we tell you what you did wrong.
Chairman Collins:
[Commented on Vice Chairman Claborn joining the meeting.] We now have a quorum for a meeting; we’re a full Committee. Are there any questions from the Committee?
Assemblyman Mortenson:
It’s not a question. What you have just said seems to me to solve all the problems. There were an enormous number of problems and, I think, some very unfair treatment of these small people. What you just said sounds good.
Chairman Collins:
Is there anyone else who wants to speak on S.B. 18? Seeing none, I’ll close the hearing on S.B. 18; we have a quorum, so I will entertain a motion.
ASSEMBLYMAN CARPENTER MOVED TO DO PASS S.B. 18.
ASSEMBLYMAN GEDDES SECONDED THE MOTION.
Assemblyman Mortenson:
I just want to thank Senator Schneider for bringing this forward, and also congratulate him on probably the shortest bill of the whole session with a two‑word change.
Chairman Collins:
I would join you. Having been elected for the first time in 1993 with Senator Schneider, when he was an Assemblyman, he didn’t introduce any legislation. He is gaining some confidence.
Assemblyman Carpenter:
This one makes up for what he brings to the Judiciary Committee, 300 pages.
Chairman Collins:
Is there any further discussion? Seeing none, we’ll vote.
THE MOTION CARRIED. (Mr. Atkinson, Mr. Christensen, Mr. Goicoechea, Mr. McCleary, and Ms. Ohrenschall were absent.)
Chairman Collins:
We’ll open the hearing on S.B. 76 and ask Mr. Guild to come forward to answer a question for the Chair. At this time I’d like to hear again the amendment presented at our first hearing on Monday from Senator Rhoads (Exhibit C).
Senate Bill 76 (1st Reprint): Revises provisions governing acquisition of water rights for purposes of watering livestock. (BDR 48-670)
Chairman Collins:
Mr. Guild, the first question I would like to ask you on this bill is to show the Committee where water-based is covered in this proposed legislation.
Joe Guild III, Representing Nevada Cattlemen’s Association:
[Introduced himself.] I wasn’t in the room on Monday when there was discussion about water-based permits. I was not privy to the questions that were asked. Since then, I was asked to look at the state water law and to answer the specific question that you just posed. If you look on page 6 of the bill, Section 6, and going on to page 7, I think I can answer the question. I will walk the Committee through the current law and how the law would be changed by the first reprint of S.B. 76.
[Joe Guild III continues.] If everybody is with me, Section 6, bottom of page 6, I think the easiest way to do this is to read and then I’ll explain what I just said. Starting on line 42, Section 6, subsection 1:
The State Engineer shall not issue a permit to appropriate water for the purpose of watering livestock unless: the applicant for the permit is legally entitled to place the livestock on the lands for which the permit is sought and: owns, leases, or otherwise possesses a legal or proprietary interest in the livestock . . .
Stop there with me, and I’ll give you point one of my statement. You go to the State Engineer for a permit to get stockwater. You have a water-based permit only. If S.B. 76 passed the State Engineer would look at your permit and determine two things. First, are you legally entitled to place the livestock on the public land? There has to be some evidence of that. Not to speak for the State Engineer, but he has told me that he would look for a grazing permit, for instance. Then he would say, “Do you own, lease, or otherwise posses a legal or proprietary interest in the livestock?” Don’t even go beyond that.
If you own livestock, you have a water-based operation, and you have a grazing permit; this covers a water-based operation. If that’s all it did, then I would say that S.B. 76 protects a water-based livestock operator’s interests. But, I think there is another thing that supports that even further, and that is on page 7, Section 6, subsection 1(b), line 11. You must show what we just talked about: that you are legally entitled to and you own, or otherwise possess, a legal interest, or:
The forage serving the beneficial use of the water to be appropriated is not encumbered by an adjudicated grazing preference for the benefit of a person other than the applicant.
So the applicant must have an adjudicated grazing preference and qualify under Section 6, subsection 1(c). That individual would demonstrate to the State Engineer by reasonable means, such as a valid grazing permit, that he is the person with the adjudicated grazing preference. There would be two places in this bill, which, I believe, protect the water-based livestock operator if S.B. 76 were to pass.
Chairman Collins:
Before I ask my other questions, I’d like to ask Mr. Ricci, as the State Water Engineer, if he concurs with that opinion.
Hugh Ricci, P.E., State Engineer, State Engineer’s Office, Division of Water Resources, Nevada Department of Conservation and Natural Resources:
[Introduced himself.] Yes, especially on the part of Section 6, subsection 1(a)(1) where it says “owns, leases, or otherwise possesses a legal or proprietary interest in livestock.” However, I want to make sure that everybody understands, this is not going to solve the problem of those people who are on the water-based allotments who may have a vested right, because this bill, in a number of places, says that it can impair a vested right. Whatever their problems are with BLM (Bureau of Land Management) of having their grazing permits cancelled or not renewed, this bill isn’t going to solve the problem. This bill is only from this day forward.
That was a long answer to say I concur with Mr. Guild. Yes, I believe this does take care of water-based allotments. However, they are going to need to show that they have a grazing permit with BLM (Bureau of Land Management).
Chairman Collins:
That’s part of the question on the part of a few people who have vested water rights, that you said the vested rights of water that are currently or have been in beneficial use could be hindered or in jeopardy. [Mr. Ricci commented that he used the term “impaired.”] Section 6 is the portion of the bill that, if it’s disallowed through the courts, causes a reversion to Section 1. Is that correct, Mr. Guild?
Joe Guild:
Actually, I think I understood the question. Section 9 is the section of the bill that reverts to Section 1 if Section 6 is found to be unconstitutional.
Chairman Collins:
Correct. Now my question is, without Section 6, are there any water-based provisions?
Joe Guild:
If Section 1 of the bill became law as the result of the Section 9’s reversionary measures, then you would look to page 1, and you’ve basically got the same language there that I just read to you in Section 6.
The State Engineer shall not issue a permit . . . unless the applicant . . . or if the application for the permit is made by two or more applicants at least one of the applicants . . . is legally entitled to place the livestock on the lands . . . and owns, leases, or otherwise possesses a legal . . . interest.
Remember, this isn’t the exact language I read in Section 6, because now we’re talking about a situation where one of the permit applicants, in the case of a joint application, is a rancher and legally entitled to place livestock on the lands. It does protect a water-based operator for the same reasons that I just talked about. The other thing that I think is important to point out about Section 1 is subsection 1(a).
The State Engineer shall not issue a permit . . . unless . . . the applicant for the permit . . . is legally entitled to place the livestock on the lands for which the permit is sought, and owns, leases or otherwise . . .
This situation contemplates that only a rancher, in his or her own name, can apply for a sole permit for livestock watering. It would cover a water-based permittee in that situation, too. Only in the case of a joint permit situation would one of the permit applicants have to be a rancher. I believe that if Section 1 becomes the law as a result of Section 6 becoming unconstitutional, the reversionary measures kick in under Section 9 of the bill, that a water-based permittee would be protected as well.
Chairman Collins:
You are an attorney, but you’re also representing the Nevada Cattlemen’s Association?
Joe Guild:
Yes. I’m the registered lobbyist for the Nevada Cattlemen’s Association. I’m the immediate past President of the Nevada Cattlemen’s Association, and I’m a Board member and member of the Executive Committee of the Nevada Cattlemen’s Association. I’m also an attorney licensed to practice law in California and Nevada.
Chairman Collins:
You also support this bill as amended from the Senate as it was introduced to this Committee.
Joe Guild:
The position of the Nevada Cattlemen’s Association is that we support S.B. 76 as presented to you on Monday at your hearing on this bill with the proposed amendments that Senator Rhoads presented to you. That’s consistent with the testimony that Mr. Steve Boies, the President of the Association, gave on Monday and that I gave as well on that same day.
Chairman Collins:
The reason I’m asking for some of this clarification is because I was out of the hearing part of time with legislation in the Senate that I needed to address. I’d like to ask Mr. Busselman to come up, if he’s still here. I’d like to ask you, as a representative of the Farm Bureau, for a statement on this bill.
Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation:
[Introduced himself.] Our position is in support of the bill with the amendments that have been discussed by Mr. Guild.
Chairman Collins:
I have a dual question for Mr. Guild and Mr. Busselman. How many people do you represent who are ranching and grazing and who are affected by this legislation, approximately?
Joe Guild:
The current membership of the Nevada Cattlemen’s Association is approximately 670 members. Of that, there is an associate member category where the person doesn’t have to own cattle. There’s a youth membership category. Please don’t hold me to these exact numbers, but I believe the current membership of the Association actively involved in livestock production is in the neighborhood of 550 people. I could be off by as much as 20. It’s in that general number.
Doug Busselman:
We have just under 1,200 farmer and rancher members. As a general farm organization, our membership encompasses all commodity interests, not just livestock producers. Our current membership is just under 1,200 farmers and ranchers.
Chairman Collins:
I’ll disclose at this time that I am a member of the Nevada Cattlemen’s Association. Currently, I do not knowingly have any livestock outside of my backyard or out of state at this time. I don’t know if that needs to be disclosed for any other members of the Committee. I have questions for you because you’ve been dealing with this for years, along with Senator Rhoads. This law will not, or should not, and you just said it could, impair existing water rights. I’m doing this backwards, but I’m trying to get something cleared up.
Hugh Ricci:
What I said is, if this bill is passed in the form amended by Senator Rhoads, I’m only dealing with applications from the effective date of this legislation. If there is a vested right that is on that particular land or water source, it cannot be impaired.
Chairman Collins:
The water source is separate, right?
Hugh Ricci:
Correct. The claim of vested right is on that source for livestock water. In that matter, there might be some other vested rights on certain water sources, but let’s just leave it on livestock. If BLM (Bureau of Land Management) has cancelled the grazing permit for that particular person who has a claim of vested right, just by the fact that they have the claim of vested right, they still have to meet whatever requirements BLM has. I’m assuming that to be the case. I don’t think that, by the claim itself, they have entitlement to graze their cattle without the BLM’s permission. I could be wrong, and maybe somebody smarter than I could tell you that.
Chairman Collins:
Mr. Holmgren, can you speak for the Nevada Livestock Association? You are a representative for them, correct? Approximately how many member ranchers do you represent?
David Holmgren, Vice Chairman, Nevada Livestock Association:
[Introduced himself.] In a little over a year, we have 140 members at the present time (provided Exhibit D).
Chairman Collins:
With similar categories as junior, rancher, nonrancher, and associate members, or is it all pure membership? Do you know how many ranchers are actually active in ranching?
David Holmgren:
Most of the members are active ranchers; there are a few associates, but it’s maybe two or three associate members, and the rest are ranchers.
Chairman Collins:
Let me turn this over for some questions. Was your proposed amendment (Exhibit D) left in back, Mr. Holmgren, for people to look at? [Mr. Holmgren indicated he had provided additional copies for the public.] What I’d like you to look at is Section 6, subsection 3, that says:
This section must not be construed to impair the vested right of any person to the possession of beneficial use of water for the purposes of watering . . .
See if that is already in S.B. 76 or could be inferred to already be included. Excuse me for a minute while I step outside. Assemblyman Claborn, I’m going to let you run the meeting for about five minutes.
Vice Chairman Claborn:
Thank you, Chairman Collins. I can probably handle it for about five minutes. Assemblyman Mortenson, you have a question?
Assemblyman Mortenson:
Mr. Ricci, could the government unload a bunch of cattle in Jackass Flats, drill a well, and pipe water from that well up to Yucca Mountain? I believe we’ve stifled them on their water permits.
Hugh Ricci:
If this bill passes, as amended, the BLM cannot get a permit.
Assemblyman Mortenson:
They own the land, and they couldn’t apply as an applicant?
Hugh Ricci:
The BLM would have their own cows?
Assemblyman Mortenson:
Yes. The government badly wants to get Yucca Mountain going, and they need water. They are still stifled, right? You have stifled them in getting water to operate Yucca Mountain?
Hugh Ricci:
To a certain degree; that particular issue has been remanded back to me for additional information. Maybe Mr. Guild can elaborate on that. I’m not aware that the United States owns cattle, unless they confiscate them, and I thought that they sold them.
Assemblyman Mortenson:
They can always buy them.
Joe Guild:
To help answer Assemblyman Mortenson’s question, the Bureau of Land Management (BLM) is currently not authorized.
Assemblyman Mortenson:
The Department of Energy (DOE), not the BLM.
Joe Guild:
I can’t think of any federal agency that is currently authorized by statute or regulation to operate livestock. The short answer to your question is that I don’t think that’s possible. The Forest Service owns horses, for instance, and mules. The BLM does as well, which they use in the monitoring and management activities that they conduct on the public ranges. As far as operating livestock, they’re not authorized, and, in fact, a recent United States Supreme Court decision spoke to that very issue.
The United States Supreme Court basically said that the Taylor Grazing Act is the authorization for the use of BLM-managed lands. The only person, using the legal definition of “person,” who can be a livestock operator on the public ranges is a rancher with a preference right guaranteed by the Taylor Grazing Act. The issue before the court was whether a nonlivestock operator could purchase a grazing preference, like from a ranch with an allotment, and then put it to nonuse. The Supreme Court of the United States said that they could not do that; that would violate the Taylor Grazing Act.
Assemblyman Mortenson:
I wouldn’t think that the test site would be public land, that would be land owned by the federal government, wouldn’t it?
Joe Guild:
Yes. I think your question did talk about the BLM putting livestock on it.
Assemblyman Mortenson:
The DOE (Department of Energy) putting it on federally owned land.
Joe Guild:
The extent of my expertise has just been stated to the Committee. I’m not sure I answered your question.
Hugh Ricci:
Let us assume, under the most pessimistic scenario here, that, for some reason or other, the Department of Energy could go out and buy a truckload of cows, throw them out there, and then say, “I want to have a permit for stockwater,” under the guise that really they want to use this water for Yucca Mountain. There is still the process that says the permit is only for stockwater. It can’t be for anything else. If they’re going to use it for Yucca Mountain for the project, they have to file a change application to change the use from stockwater to that purpose. I’m sorry I failed to mention that. It’s not automatic that if they receive a stockwater permit, they can use it for whatever they want.
Assemblyman Mortenson:
That’s a good answer. I know they have had cattle out there, because they used them for radiation experiments.
[Chairman Collins returned and asked for additional questions.]
Assemblyman Carpenter:
This question is probably for Mr. Ricci. Right now, a person who is operating on a water-based permit and has either vested or certificated rights, which I guess they say are all the same now, how are they protected with those water rights other than they’re still keeping them alive with beneficial use?
Hugh Ricci:
One thing I want to mention is that there has been some thought that a certificated right is a vested right. There are only two types of rights in the state of Nevada. One is a claim of vested right; that is a prestatutory right. The second right is through the appropriative process. The culmination of a water right through the appropriative process is finalized by the issuance of a certificate, which shows that the water has been put to beneficial use for the purpose of which the application was applied.
Under that scenario, claims of vested right, or vested rights, are not the same as certificated rights. This bill only protects those that are prestatutory rights. Once there has been a certificate issued, the 1999 Legislative Session stated that a surface water right could not be forfeited any longer; however, it can still be abandoned, as long as there is appropriate proof of which to do that.
I’m not sure how that would be handled, because what would end up happening is that somebody would have the water right by the fact that they didn’t put it to the use for which it was intended. Let’s assume they went through the procedure, got the permit, put it to beneficial use, got the certificate on a surface water source, and it can no longer be forfeited, and then, for whatever reason, they quit ranching, go away, or the grazing permit is cancelled, that water right cannot be forfeited. If there becomes another bona fide grazing permittee on there, and that’s the only source of water, and there’s going to be another application filed, I’m not sure what the State Engineer would do.
[Hugh Ricci continues.] That could be me or somebody else who is my successor. I’m not sure exactly what would happen under that scenario. Obviously, the first person has no means for putting the water to use. It’s on public land; he has no authorization to stop somebody from using that. It looks like it would be another court case or something.
Assemblyman Carpenter:
In reality, even the vested right and a certificated right, as long as you’re making beneficial use of them, are in good standing.
Hugh Ricci:
Yes. Even a claim of vested right becomes almost impossible to show that; I’m not even sure you can abandon a vested right. There are many vested rights that are not used any longer. I don’t think, in looking at this bill, somebody who has a vested right for stockwater is going to be using the water. I mention, also, that there are hundreds, if not thousands, of claims of vested rights filed by multitudes of governmental agencies and private individuals. By the fact that somebody files a claim of vested right does not automatically entitle them or give them the right to use that water until it goes through the whole process set out in Chapter 533 of the Nevada Revised Statutes under the adjudication process. As long as it takes to do these adjudications, it may be a long time before some of those issues are resolved. I hate to say that, but that’s the reality.
Chairman Collins:
In the case that you gave where there was developed water on public lands somewhere that is no longer being used, does the owner of that water have access to that water? Has that been settled in court, as far as maybe in the Hage case?
Hugh Ricci:
I don’t believe that issue had been addressed in Hage.
Chairman Collins:
He was given his rights on his ditch, stream, or water, so I was curious. If you had a developed water right somewhere, would you still have access to that water, or would you have to go on down the R. S. 2477 road, Federal Revised Statutes, from the Mining Act of 1866, or would you be able to go out there to your vested right, if you were going to haul it to the house or something? If you need to think about that, we can let you.
Doug Busselman, Nevada Farm Bureau:
I’m not an attorney, and there are lots of other people here who would maybe be better qualified than I, but when you asked Mr. Guild originally to talk about what was in the bill that would deal with the issue of water-based ranches, Mr. Guild gave the explanation that he did. Also I think, if the Committee were to be directed to look at NRS 533.495 (Nevada Revised Statutes), which is existing statutes not in this bill currently, but it does exist in NRS, that may better cover the issue of a water-based situation.
Chairman Collins:
On subsisting rights?
Doug Busselman:
That is correct. That particular protection, or set of protections, that is afforded there is probably stronger than anything in the current bill that deals with the issue of protections for existing rights when you are dealing with a water-based type of situation.
Joe Guild:
I agree with what Mr. Busselman said. I neglected to point that out; I’m glad he’s here.
Chairman Collins:
I had that page open for about a week looking at different things that might go in or out of that section of the statute. Did you get a chance to look at Mr. Holmgren’s amendment (Exhibit D), Mr. Guild?
Joe Guild:
I’ve been reviewing it as Mr. Ricci and Mr. Busselman have been testifying. I did review it during the last few minutes.
Chairman Collins:
Could you comment on the language just before Section 2, at line 3-23?
This section must not be construed to impair the vested right of any person to the possession of beneficial use of water . . .
It sounded like Mr. Busselman might have said that NRS 533.495 might have covered that, just for clarification.
Joe Guild:
I looked at that, and I was curious as to the wording because of the words “possession of beneficial use.” I don’t think that’s a term I’ve every seen. We’ve seen “beneficial use” all through our water law, but not “possession.” If you’re looking for an impairment of existing rights protection language in the bill, in the proposal by the Nevada Livestock Association on the prior page, Section 1, subsection 3, lines 3-16 to 3-19, that is the protection from impairment of existing rights section. Then, in the bill itself, I started flipping through. You have, on page 4, Section 2, subsection 6, a protection from impairment of existing rights section there. On page 8, Section 6, subsection 3, is an impairment of existing rights protection section.
I’m not sure what the addition of “possession of beneficial use” does. I frankly don’t know why that language is changed. I believe the bill has sufficient protections for existing rights, if that’s the question.
Chairman Collins:
Mr. Holmgren, would you explain your amendment on “possession,” and the three places it already existed in the bill, in a sense.
David Holmgren:
A clarification, as water-based goes, I represent between 3 million and 4 million acres of water-based today, for myself and for constituents that do have water-based rights. I want that to be on the record. I think that’s a significant part of Nevada. To explain why “possession of beneficial use,” as Mr. Guild was going through the protections that we have in water-base and look on page 7 of the bill, where it says “legally entitled to place the livestock,” and then “possesses a legal or proprietary interest,” just to address some of those things a little and not take up a lot of time.
If you look at line 1, “legally entitled to place the livestock,” then go to line 4; it says “possesses a legal or proprietary interest.” Then go to line 12, “the forage serving the beneficial use of the water to be appropriated is not encumbered by an adjudicated grazing preference,” and then down to line 17 where you have to have “evidence of a valid grazing permit,” which you already talked about a little bit. Under that very grazing permit, the federal government has myriads of regulations that they can use to impair the vested right by stipulating times of use, periods of use, how many cattle would be allowed on a vested right at a certain time, or how many you cannot have. When they begin to move these cattle or sheep that proved possession of that vested right, what replaces that? Usually, in our cases, now, it’s wild horses.
They are impairing the right, something else is drinking the water or eating the feed, and that right is already being impaired by the very permit itself. When you talk about the water-base and whether the permit is going to protect you, or whether the State Engineer is in between a rock and a hard spot, and he asks the BLM whether you have this valid grazing permit or not, that very permit is the one that is limiting the right if the BLM wants it to limit the right. I have firsthand knowledge and experience of that very thing. There isn’t the protection there. I don’t see the protection.
The word “possession” is just a simple term that has always gone along with the beneficial use. The first thing that had to happen was the possession; without that, you can’t come to the State Engineer to prove the fact that you have been there and are entitled to even ask him for this water application. That’s what he rules on, in a lot of forms, on the merits.
Chairman Collins:
Right, and that’s one of the things I’ve been trying to focus on is that we’re doing a water law legislation and not any kind of grazing reform. But part of it does tie into grazing. I’m trying to figure out where that line is.
David Holmgren:
Here is one more clip on “possession.”
Chairman Collins:
Before you go there, Mr. Holmgren, the Water Engineer has said if you’ve already got developed water that’s been proven beneficial, his question was, and I think he’s still thinking on the answer, that once that’s proven, there’s not a mechanism to revoke it. Correct? So it’s your water, and now we need to find out the legality of your access to your water. It is Nevada’s water, and you are granted permission from the Water Engineer to use that water, even if it’s on federal land, on any land, and that’s where this bill is amended to say “lands.” It doesn’t say “any land.” It says “lands,” not federal or private.
David Holmgren:
I can address that very handily, I believe. Even the Taylor Grazing Act pointed out that you had to have five years and be able to prove it prior to the Taylor Grazing Act. Our rights are mostly vested, so they are pre-1905. I agree with you. You have a vested right, and those can’t be impaired; but how does something get to be impaired? How does that happen?
Chairman Collins:
The water itself is not impaired, necessarily, but access to it might be the issue.
David Holmgren:
I can go ahead with the access. Even Judge Lauren Smith, in the Hage case, ordered—I hate to argue over the permit, the permit always becomes the issue instead of the water right itself. We just put in “possession of the beneficial use.” In other words, here is the water in this water pitcher, and I have possession of that water because I have it in this pitcher. I have possession of it, otherwise I can’t hold it.
Chairman Collins:
Put that pitcher of water over on the cabinet, for demonstration, and sit back in your chair. It’s your water right, according to the Water Engineer, but you can’t drink it from where you’re sitting. Is that the point you’re making?
David Holmgren:
No, it isn’t.
Chairman Collins:
You’re not making the point that if you possess it, you still possess it even if you’re over there, according to the Water Engineer.
David Holmgren:
They’re trying to say that you still possess it, but I don’t have my options any more; you’re barring me from my options. The property itself always has the option to use the property. I can own a belt, but if I can’t put it around my waist, why do I own a belt?
Chairman Collins:
The point then is that the water belongs to the State of Nevada, and the Water Engineer has allowed you to put the water to use. You have other conditions to meet to be able to use that water. That’s the question. Is that not true?
David Holmgren:
Not on the merits. The preemptive rights were put to beneficial use before there was even Nevada water law. When Nevada began water law, they took, correct me if I’m wrong, the appropriation of that very water. Before that time, you could come into that water with only, say, the permission of the federal government saying, “You can settle the land.” You were open and notorious to go there.
Chairman Collins:
And that’s when it was a “good” federal government?
David Holmgren:
No. That’s not what I’m saying.
Chairman Collins:
I’m sorry; I’m getting off track.
Doug Busselman:
Personally, I don’t have a problem with the language that has been presented as an amendment. I do have a question. The question that I have deals with whether the clause of “possession of beneficial use” reinforces, once again, the requirement, if you’re dealing with livestock, that you have to possess the livestock. Of the protections that we have fought for through this whole legislative process, we are deeply concerned about people who presently own private property with livestock water rights on that property, but they may no longer own livestock. They may be retired or something like that.
The concern or question that we would like to have clarified is if this language, in terms of the requirement again of them owning livestock, jeopardizes the rights that we’ve been working this legislative session to protect. If it says that you have to possess the beneficial use, and if the beneficial use is livestock, it repeats the contention that you have to own livestock in order to make beneficial use. Does that requirement then jeopardize those existing rights that we’ve been working and trying to protect when the person may no longer own livestock? That would be our biggest concern. We’ve got no problems beyond that, but we want to make sure that we continue to protect existing rights and that no one who has rights today loses those rights because of what we’re trying to fix in another part of the world.
Chairman Collins:
Mr. Guild has pointed out three places in the bill where the water rights are protected, but not necessarily possession, as stated in this proposal. Your concern is that you would have to not allow the pitcher to be over there on the cabinet but would have to have it in your hand.
Doug Busselman:
I think that’s correct. We’ve worked at putting at least two of those items Mr. Guild made reference to back in this bill. We are very concerned about protecting existing rights; our concern is that, by putting in the clause being proposed, we would, in fact, be jeopardizing existing rights. That would be our only concern.
Joe Guild:
I want the Committee to not misunderstand me because I thought I was accurately answering your question. Mr. Holmgren and I, it’s no secret, don’t always agree on things. I’m not taking particular exception to this language; I was just saying that I don’t quite understand it. It’s up to the Committee, it seems to me, to make the policy decision on whether to include those words in whatever you do today. I’m not here arguing with Mr. Holmgren over these words.
Chairman Collins:
Now I want to go to Mr. Ricci. Current state law let’s me keep that water usage even though it’s over there.
Hugh Ricci:
Yes.
Chairman Collins:
That’s a good answer; don’t go any further.
Hugh Ricci:
I wanted to answer some of the other questions that you had. The water right may still be in Mr. Holmgren’s possession; however, it’s over there. [He pointed to the water pitcher on the cabinet.] Now the question you posed was, can he get there? Can he cross federal lands to get there? I would liken it somewhat to that being a piece of private land. I realize that this is not the issue here, but if it’s somebody’s private land, they may restrict him on it. Federal land might be a little different because how did he get there? Did he get there on a road, like you mentioned, that he customarily used to get there? Then, again, whether he could show that he has the water right or not, according to our records, he has a road to get there, but he has no use for the water. What does that get him? Absolutely nothing. That’s not a very good answer, but I don’t know what that gets him.
Assemblyman Marvel:
Mr. Ricci, how does beneficial use affect the vested right?
Hugh Ricci;
I think, if I’m getting what your question is, beneficial use is obviously whatever use that water is put to, for whatever purpose, whether it be for the appropriative purpose or for whatever the claim of the vested right was made. That is the beneficial use. I, too, like Mr. Guild, was not exactly sure of what “possession of beneficial use” means or what it was intended to mean. I, too, see no problem with inclusion of that language, but I’m not exactly sure.
“Beneficial use” is really an amorphous thing that you can’t hold onto; you can’t even hold onto the water. Sure, you can hold on to the pitcher holding the water all right, but you can’t hold onto the water. Something has to use that water for you to have a beneficial use. It’s not too problematic with the inclusion of that language of “possession of beneficial use,” even though I’m still not sure if I understand what it means.
Assemblyman Marvel:
The vested right was usually pre-1905, right?
Mr. Ricci:
Yes, that’s correct.
Assemblyman Marvel:
That was prior to Nevada Water Law. Now we have beneficial use as a condition. Is that right?
Hugh Ricci:
Yes. That’s correct.
Assemblyman Marvel:
Does that affect vested rights, the beneficial use?
Hugh Ricci:
No.
Assemblyman Marvel:
You still have the vested right.
Hugh Ricci:
You still have the claim of vested right, correct. Let me try and make an example of that.
David Holmgren:
I think Mr. Ricci is working up the answer to the question of that beneficial use. That very pitcher that’s holding that water over there is the very cow or sheep that drank the water to use the area. It’s inside the cow’s hide. Without that use, what do you need a stockwater right for? It’s like having a plaque on the wall; it’s pretty, but what good could I do with that? The fact that I rode that bridle horse in the state fair, and I trained the bridle horse is the use you got out of it. The plaque attests to that fact, but the very use is in the options to use. The options of property is the property itself. A table is no good if you don’t put it to use. It’s all that same thought of beneficial use. The people entered onto the land and put the land to beneficial use because there was water there. If there was no water there, the land was useless.
Judge Lauren Smith said that very thing in the Hage case, in that last order. What came first, the beneficial use of that range, and Hage proved it through an exhaustive chain of title, or was it some fallacy that we had to have this permit? It’s the beneficial use that surrounds the ability to have any good out of the water. The possession of beneficial use, as Mr. Ricci has said, maybe he or the rest of the gentlemen here don’t quite know where that goes.
I’m just asking once again that all the other language that has been written, all of the other things—I could point out a lot of things that I believe in there, I don’t have the time, and I would not want to take it up—but I’m just asking for 3 million to 4 million acres of water‑base that I’m representing today, I’m asking for three words. We just had a good two-word deal that passed; I’m asking for a three-word deal that doesn’t bother anybody else’s stuff. We thoroughly believe this has something to do with water-base and will strengthen our claim on that vested right.
Chairman Collins:
Seeing no further questions, I’m going to release all four of you from the table. Mr. Swainston, could you come up, please? My question to you is regarding S.B. 76, in the first reprint, and possibly including the amendment that was given to us Monday in Committee, how much of that proposed legislation have you already helped to influence or develop?
Harry Swainston, Citizen:
[Introduced himself.] Those of appurtenance and beneficial use that appear in Sections 2 and 6.
Chairman Collins:
Those two items are included, and that’s been, from my discussions with you and places we have both been, your belief as long as appurtenance and beneficial use are in the bill, you’re pretty good to go. Is that correct?
Harry Swainston:
That’s correct, as long as both of the amendments that were offered by Senator Rhoads are adopted by this Committee.
Assemblyman Carpenter:
Mr. Swainston, do you believe the way this bill is written now, S.B. 76 in its first reprint, is constitutional?
Harry Swainston:
I’ve testified previously on a couple of occasions, that I do feel it is constitutional, the way it is presently written, Sections 2 and 6. The fallback provision I have very serious doubts about.
Assemblyman Carpenter:
Why do you say that?
Harry Swainston:
Because the fallback provision, Section 1, really talks so much about grazing on the federal or public ranges in the context of water. It’s too easy to just identify against the federal agencies one form of discrimination after another when you get into this exercise. I think that’s what’s happening in Section 1. In addition is the problem, of course, that it’s very difficult to understand. It’s not in keeping with, at least in my view, the simplicity and the brevity of the whole water code per se.
Assemblyman Carpenter:
You offered some language to this bill, and you think the language would strengthen the bill and make it easier to defend constitutionally. You do believe, without putting your language in there, that the way it is now, it would be constitutionally defensible?
Harry Swainston:
Sections 2 and 6 are basically the language I proposed originally. It’s a little more verbiage; it’s the bill drafters’ version of the two sentences that I originally proposed. I have no problems with that. If that’s the way the bill drafters think it should be codified, so be it. I thought my original proposal was indeed constitutional, and, as a consequence, I can’t change my mind about these provisions, as they’ve gone through the bill drafting process.
Assemblyman Carpenter:
In regard to the amendments by Senator Rhoads offered on Monday, the first proposed amendment would amend Section 2, page 4. Do you have any thoughts on that (Exhibit C)? I imagine you saw that amendment. Does it strengthen it or weaken it, or is it immaterial?
Harry Swainston:
The only problem I have with Proposed Amendment 1 (Exhibit C) is, the way I had originally proposed it, I talked about other land or interests in real property. The interest in real property phraseology was to take care of the water-based ranches. A water right is real property. This is part of the appurtenance section. If that language were included, a stockwater right on the ranges could either be appurtenant to the home ranch, the base ranch, or if it was a water-based property, it could be appurtenant to the water rights that were at the basis of the grazing preference. The original language that I had proposed included “or interests in real property.” I think that would be a good addition.
The only other part about these proposed amendments—originally I had to deal with the problem with Section 9, which basically stated that if any part of Section 6 was to be found unconstitutional, then it would revert to the default provisions. This Proposed Amendment 2 (Exhibit C) corrects that problem. It also basically says, if it’s only Section 6, subsection 1, that’s found unconstitutional, there are two other subsections of that, and they both deal with forage, grazing preferences, and things of that nature. In the context of water law, that starts to give me a little heartburn. I would have just preferred to see those deleted, but that’s not the case at this point.
Chairman Collins:
Because that gets off of water law and starts getting involved in grazing reform, versus just being water law, that would probably be why I think some of us think that’s convoluted. My question goes back to when Mr. Guild was up here. Do you agree with the sections that he showed us that address water-base; do you believe that they do protect, to an extent, versus where you put “other interests,” maybe “other interests” being pretty broad? Other interests could go beyond water.
Harry Swainston:
I don’t have any real disagreement with what Mr. Guild was telling you. When we talk about water-based property, I think there are a couple of aspects of it. One, if you have a water-based grazing preference and you go in for a stockwater right, obviously you’re going to be treated like somebody who has a ranch-based grazing preference. That’s one aspect of it. The other aspect that I thought was important to address was the aspect that had to do with the appurtenance. There’s no reason, if a private appropriator goes onto the public ranges and acquires a stockwater right, why it should not be appurtenant to property he owns, whether it’s a ranch or other water rights.
Chairman Collins:
That’s what the last part of this amendment tried to address?
Harry Swainston:
Proposed Amendment 1 (Exhibit C) omitted that language following “other land” or “interest in real property.” I’ve always felt that should be added as an accommodation to the people who have water-based property. These are the appurtenant aspects of the water-based property and not the standing aspects when you go to the State Engineer’s Office.
Chairman Collins:
Are there any members of the Committee who have any questions they would like to bring up before the Chair accepts a motion? Are there any amendments, proposals, or questions?
Assemblyman Geddes:
My question is for Mr. Ricci. Section 9, with the fallback provision, gives me a lot of heartburn. I haven’t seen a law before where we put in a law that, if it’s struck down, we have a second law in place there. I have concerns about the bill. My question is, if we do not pass S.B. 76, what would be the consequences of that? Where would the stockwater rights be at that point, as far as filings and joint filings?
Hugh Ricci:
Right now, if S.B. 76 were not to pass, we would revert back to the decision by the Supreme Court in 2001 or 2002, and the BLM would be able to issue the roughly 100 or so permits that they have on file. I have the numbers, but they are not important right now. The BLM would be issued those permits.
Assemblyman Geddes:
As a joint permittee or the sole permittee?
Hugh Ricci:
As the sole permittee.
Assemblyman Claborn:
Mr. Ricci, when you file a permit, don’t you automatically have joint tenancy with the BLM?
Hugh Ricci:
No. The applications that are filed by private individuals, and I testified to this on Monday, under the present law under which we are operating, if a private individual files an application, we check with the BLM. If they are the grazing permittees, we grant that permit to those particular individuals, not in any joint tenancy with BLM. Only if the applicant is a joint application between the BLM and a private livestock operator do we issue it as a joint permit.
Chairman Collins:
Besides having the Farm Bureau, ranching organizations, and the Water Engineer speaking to us, as well as Mr. Swainston who was formerly with the Attorney General’s Office, having experts come up in the work session to share additional information and clarifications, we’ve also had a computer on with the LCB (Legislative Counsel Bureau) Legal Division and the Nevada State Attorney General’s Office, so we’re getting notes back and forth. I just want to read a couple of comments. “It’s our opinion that both provisions are constitutionally defensible” in answering some of the questions. There’s a legal opinion that “beneficial use is something you prove, not possess, and the statutes already recognize livestock watering as a beneficial use.”
We’ve got existing statutes that cover most of those issues. In the electronic age, we’re using some additional resources that are not here in the room for some clarification on questions.
Assemblyman Goicoechea:
Just a clarification, along those lines, when you say both provisions, you’re saying Section 1, and then Sections 2 and 6, correct?
Chairman Collins:
The amendment to Section 6 and the fallback to Section 1 are both defensible.
Assemblyman Goicoechea:
It is their legal opinion that Sections 2 and 6 would be defendable?
Chairman Collins:
Yes.
Assemblyman Goicoechea:
I, like Assemblyman Geddes, have a real problem passing a law—and I’ll be honest with you—we’re talking about proof of beneficial use that occurs in an animal out on the range utilizing the water. I have a hard time with passing a law that has fallback language in it that says, “If this isn’t right, then we’re going to go back to this.” The intent then is that there’s something wrong with the first. I’m not seeing that. I won’t be able to support it with the fallback language.
Chairman Collins:
We have provisions in legislation, probably more in the Judiciary Committee, where there is a penalty one or penalty two, there are other options and fallbacks on things. What we’re up against is changing federal regulations that are in process now that we don’t know where they’re going. Probably next session, we’ll be addressing this same issue based on the outcome of that, which won’t be determined until August. I’m almost sure that we will be addressing this next session, after changes, depending on what the changes, if any, are. Hopefully, we can have minimal litigation in the meantime.
Assemblyman Goicoechea:
In the same context, I realize we have to pass a bill given State Engineer Ricci’s comments. I think we all understand we have to get something out of here, or else we will be opening it up.
Chairman Collins:
On that note, if there are no more questions from the Committee, I’ll accept a motion for the proposed amendments (Exhibit C) presented Monday by Senator Rhoads from the Senate Committee.
ASSEMBLYMAN CARPENTER MOVED TO ACCEPT THE PROPOSED AMENDMENT #1 WITH THE ADDITION OF THE LANGUAGE AFTER “LAND OR INTEREST IN REAL PROPERTY,” FROM SENATOR RHOADS, TO SENATE BILL 76.
ASSEMBLYMAN CONKLIN SECONDED THE MOTION.
Chairman Collins:
I’ll start the discussion with the belief that Proposed Amendment 2, to those making and seconding the motion, was to clarify that it would only address, if only part of Section 6 was declared unconstitutional, that the other parts would stand. Is that what some of the others might believe?
Assemblyman Conklin:
Is it your intention to take the amendments separately, as we typically do in all of our other votes, or, did you want all of the amendments into one?
Chairman Collins:
Assemblyman Carpenter, was that your intent to do one, or were you withdrawing Proposed Amendment 2?
Assemblyman Carpenter:
I thought that that was what you wanted.
Chairman Collins:
I apologize.
Assemblyman Carpenter:
I think that Proposed Amendment 2 is a situation to the throwback language that I cannot agree with.
Chairman Collins:
You were moving on Proposed Amendment 1 (Exhibit C) with the expectation that we would take a motion on Proposed Amendment 2 next, correct?
Assemblyman Carpenter:
Not exactly. I was thinking there would be an additional amendment. My amendment would then be that we delete Section 1 and the fallback language.
Assemblyman Goicoechea:
I am looking for clarification. I think, when you don’t accept Proposed Amendment 2, then you leave the bill as drafted, and that says if a court of competent jurisdiction invalidates all or part of Section 6 . . .
Assemblyman Carpenter:
I am not in favor of the fallback language, and I am not in favor of Section 1, which, to me, speaks of dual filing.
Chairman Collins:
To address that, if Section 1 is deleted and Section 6 is found invalid, the current statute will apply, and the BLM will be able to take stockwater permits in the name of the United States only. Is that your intent, Assemblyman Carpenter?
Assemblyman Carpenter:
I don’t believe that we need to go to that issue right now. I feel that the main thing in our water law is beneficial use. I think Section 1 modifies that to an extent that I don’t want to go to. I think there are a lot of other things working here, from the federal government, and I don’t have any problem taking this to court because everyone has said that Section 6 is constitutionally defensible. If it is, I don’t know why we are going to a fallback position. If something happens and it is not constitutionally defensible and we get a ruling from the court, which certainly isn’t going to be any time soon, then we can decide what to do later.
Chairman Collins:
Any other discussion? We have a motion and a second to pass Proposed Amendment 1 from Senator Rhoads to S.B. 76.
THE MOTION CARRIED. (Mr. Atkinson and Ms. Ohrenschall were absent.)
Chairman Collins:
I’ll accept a motion on Proposed Amendment 2.
ASSEMBLYMAN CONKLIN MOVED TO ACCEPT AMENDMENT 2 FROM SENATOR RHOADS to S.B. 76.
ASSEMBLYMAN CLABORN SECONDED THE MOTION.
Assemblyman Carpenter:
I would have to not support that amendment because I think that goes back to the fallback language that I am not in favor of.
Assemblyman Goicoechea:
I also cannot support this amendment. The only amendment I could support would be the deletion of Section 9.
Chairman Collins:
The point I’d make, from information from the Legal Division and testimony today, is that this clarifies that if part of Section 6 goes, it doesn’t all go, which means it would stand up and not necessarily revert as quickly.
THE MOTION FAILED. ASSEMBLYMAN CARPENTER, ASSEMBLYMAN CHRISTENSEN, ASSEMBLYMAN GEDDES, ASSEMBLYMAN GOICOECHEA, AND ASSEMBLYMAN McCLEARY VOTED NAY. (Mr. Atkinson and Ms. Ohrenschall were absent for the vote.)
Chairman Collins:
To S.B. 76 with Proposed Amendment 1 (Exhibit C), if we don’t pass the bill, we’re in the hands of the court ruling, which, for most of Nevada, is not a favorable place to be.
Assemblyman Goicoechea:
Would you entertain a motion to delete Section 9? I think we’re going to end up in Conference Committee with the Senate anyway, and that would be my preference. I understand we need to pass the bill, and I don’t think anyone disagrees with that; I just don’t like the reversionary language.
Chairman Collins:
We were only amending that so if part of Section 6 were deleted, the rest of it stayed in. That’s what the second amendment was that failed. That would still keep parts of Section 6, if other parts were challenged.
Assemblyman Goicoechea:
When I look at the amendment, what it technically did was to say if a court of competent jurisdiction invalidated parts of Section 6, it narrowed it down to where it would be easier. If the court invalidated any portion of Section 6, then we lost and went back to Section 1.
Chairman Collins:
It left the other parts in, and that was the intent of each, I thought.
Assemblyman Goicoechea:
As it’s written, it really defines what could be invalidated. That’s why I didn’t like Proposed Amendment 2 (Exhibit C).
Chairman Collins:
The bill says all or part, and the amendment was to make the language cleaner. It says “all” but also all or part of Section 6 is described. It just said if only part of Section 6 was found not to stand muster then the other parts would remain in. If it took out subsection (a) only, then subsections (b) and (c) would stay in the law, so you haven’t defaulted yet, which makes it better than before. That’s the intention of the language.
ASSEMBLYMAN CARPENTER MOVED TO FURTHER AMEND S.B. 76 BY DELETING THE FALLBACK LANGUAGE AND SECTION 1.
THE MOTION DIED FOR LACK OF A SECOND.
[Inaudible discussion among Committee members.]
ASSEMBLYMAN CONKLIN MOVED TO AMEND AND DO PASS S.B. 76 AS PREVIOUSLY AMENDED.
ASSEMBLYMAN CLABORN SECONDED THE MOTION.
Assemblyman Marvel:
Does that mean upon passage and approval? Is that still in there?
Chairman Collins:
Yes.
Assemblyman Carpenter:
I cannot support the motion. I do not see why, if Mr. Swainston, who has been involved in water law for years, the Attorney General, and the Legislative Counsel Bureau all say that it is constitutionally acceptable, we have to have the fallback language.
Chairman Collins:
The language from the Attorney General’s Office and from legal experts said it’s defensible. It is not necessarily going to come out on top; it means it’s defensible. Passing the whole bill, we have the fallback so we can address legislation while it’s out of our control.
Assemblyman Carpenter:
I think the fallback language is an open road for a court to say, “They really weren’t sure of what they were doing so they have to put this other situation in.” I think we ought to pass it the way we feel it’s defensible and then go from there.
THE MOTION FAILED. ASSEMBLYMAN CARPENTER, ASSEMBLYMAN CHRISTENSEN, ASSEMBLYMAN GEDDES, ASSEMBLYMAN GOICOECHEA, AND ASSEMBLYMAN McCLEARY VOTED NAY. (Mr. Atkinson and Ms. Ohrenschall were absent for the vote.)
Chairman Collins:
The Chair is open to a motion to pass S.B. 76.
Assemblyman Carpenter:
I believe that we would pass it taking the fallback language out, which I believe is in Section 9, lines 22 through 28. If the Legal Division has a different opinion than that, I think they know what I’m talking about regarding the fallback language, and that we also take Section 1 out of it, which is the situation of dual filings.
ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS S.B. 76 WITH THE DELETION OF ALL OF SECTION 1 AND THE DELETION OF THE FALLBACK LANGUAGE IN SECTION 9, LINES 22 through 28.
ASSEMBLYMAN GOICOECHEA SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Atkinson and Ms. Ohrenschall were absent.)
Chairman Collins:
We’ve got two more bills, and I’d like to do them quickly if we could. Could we get the letter (Exhibit E) passed out from the District Attorney’s Office? I want to open the hearing on S.B. 135.
Senate Bill 135 (1st Reprint): Revises provisions governing killing or possessing of certain animals and penalty for violating those provisions. (BDR 45‑711)
Chairman Collins:
Members of the Committee, I’ve just had a letter passed out from the District Attorney’s Office in Clark County. I’d like you to take a look at it, if you please; it is in regards to extradition and the state of Nevada.
I want to ask you for your patience and indulgence when I read that we have offered this testimony, it’s posted in many places in this building, that NRS 218.5345 (Nevada Revised Statutes) makes it a misdemeanor to knowingly misrepresent any fact when testifying or otherwise communicating to a legislator.
Testimony was given to us on S.B. 135, and I have that documentation with me as well, that would require the Governor’s signature in two states to allow extradition for less than a felony. That was testimony we had given to our Committee. If you’ll look at the letter from the District Attorney’s Office (Exhibit E), I will read the following excerpts:
Any offender charged with a gross misdemeanor can be extradited just like an offender charged with a felony.
As for entry into NCIC (National Crime Information Center), I’ve been informed by the Las Vegas Metropolitan Police Department Certification Section, that there is no restriction on entering gross misdemeanor warrants into NCIC as long as the originating agency is willing to extradite the defendant when he/she is located.
My point is that I believe that this Committee has been given misinformation on a piece of legislation, and that’s why it was the first bill I asked to open up the Committee meeting with. I know some of you weren’t here yet; it was the first bill I wanted to address in this Committee today to clarify that. We have been given wrong information on proposed legislation, and, based on those grounds, I do not plan to take any other action unless there’s some compelling interest.
Assemblyman Claborn:
I have to beg your pardon; I don’t think we did get wrong information, to be honest with you. That’s debatable. That upsets me a little bit. I know for a fact, to extradite on a misdemeanor, you would have to go through the Governor to have him sign papers to do that. That’s the only way you’re going to get that perpetrator back in the state.
Chairman Collins:
Assemblyman Claborn, this is testimony given to us on May 5, 2003, describing the law by one of its proponents. The first part was addressing the clarification on “willful.” The other part of it was to enable law enforcement to be able to reach out across state lines to bring poachers back, and I’ll quote:
There is one way to bring a poacher back right now, or any person who is accused of a gross misdemeanor, across state lines. That’s by use of what’s called a Governor’s Warrant.
The long and the short of it basically is this: we ask our Governor to get a hold of the Governor in the receiving state to tell that Governor that we would like to extradite . . .
According to the Clark County District Attorney’s Office and the Metropolitan Police Department, that is not the case (Exhibit E). It’s my belief we were given false information.
Assemblyman Geddes:
I would say, with that information, I had problems with this bill in the beginning because in the examples and cases we were given in testimony, they never caught the poacher. The issue was indicting and bringing him back and getting him into the system. The information from Clark County says all of that is possible. I think, in the one case in northern Washoe County, with the big horn sheep that was taken, if they had caught the person, or if they had any idea of who he or she was, the Governor would sign that extradition in a heartbeat, if he knew who that person was. I think the current law allows us to get somebody, if we know who he is, if we can figure out who he is, or we have a chance and can bring him back.
[Assemblyman Geddes continues.] I think the poaching laws we have in this state, we keep making them tougher and tougher. We’ve got fines, they can take your pickup truck, they can take your guns, and they can take your hunting privileges. I think we’re addressing the issue, and it sounds like the law is all there. I would like to IP (Indefinitely Postpone) this.
Chairman Collins:
The bill can die tonight if we take no action, if that is all right with the Committee. We’ll close the hearing on S.B. 135. I want to compliment Assemblyman Conklin on the portion that he brought to the bill and his work on the “intentional” language versus the “willfulness.” I know some of you need to go to the Judiciary Committee, but we do need to pass S.B. 336 as amended.
Assemblyman Claborn:
I’d like to go on record in regards to S.B. 135.
Chairman Collins:
It’s closed, Assemblyman Claborn.
Senate Bill 336 (1st Reprint): Makes various changes relating to water rights. (BDR 48-848)
Chairman Collins:
S.B. 336, the changes of “and” to “or.” Have you had a chance to look at the amendment (Exhibit F)? I will accept a motion.
ASSEMBLYMAN GEDDES MOVED TO AMEND AND DO PASS S.B. 336.
Chairman Collins:
We have a motion to amend and do pass S.B. 336 with the amendment changing “and” to “or.” It’s the green language where we changed two “ands” to “ors.”
Assemblyman Goicoechea:
The amendment that’s being proposed to S.B. 336, I assume you’ve got a copy of it.
Chairman Collins:
Lines 4 and 11; the other amendment in blue was already put in on the Senate side.
Hugh Ricci:
I do concur with the replacement of “and” with “or” in both instances.
Assemblyman Goicoechea:
Just a clarification on the bill, how long do you anticipate that would be postponed for, the blue, because we probably did have you here for the other testimony?
Hugh Ricci:
If I told you a time, Assemblyman Goicoechea, I’d probably be lying because I really don’t know. We’ve had applications on file for many years that we have never acted on for one reason or another.
Chairman Collins:
The Chair will accept a motion.
[Chairman Collins did not request a Second on the previous motion due to continued discussion and called for a new motion.]
ASSEMBLYMAN MARVEL MOVED TO AMEND AND DO PASS S.B. 336.
ASSEMBLYMAN GOICOECHEA SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Atkinson, Mr. Claborn, Mr. Conklin, and Ms. Ohrenschall were absent.)
Chairman Collins:
I don’t believe there’s anything else to come before the Committee, but, because of the deadline tonight, we will recess to the Call of the Chair. In case I have to chase you down for something that comes up, we’ll find you. [The meeting was recessed to the Call of the Chair at 4:05 p.m.]
RESPECTFULLY SUBMITTED:
Erin Channell
Committee Secretary
APPROVED BY:
Assemblyman Tom Collins, Chairman
DATE: