Nevada Committee For Full Statehood

P.O. Box 656, Sparks, Nevada 89432

775-352-8262, fax 775-356-0727, www.nevadafullstatehood.org

May 13, 2003

RANCHERS OPPOSE BLM BLACKMAIL ON WATER AT ASSEMBLY HEARING

For Immediate Release

On May 12, 2003 the Nevada Assembly Committee on Natural Resources, Agriculture and Mining chaired by Assemblyman Tom Collins, held a hearing on Senate Bill 76, the controversial Stock Water legislation. If passed, as is, the bill could allow the Bureau of Land Management and Forest Service to steal Nevadans’ water rights that were originally perfected by pioneering Nevadans for beneficial use in mining and agriculture.

Joe Fallini, a rancher from Warm Springs, Nevada testified that the BLM had filed on over 100 of his water rights. Fallini owns a water base ranch and gave the BLM a map, at their request, to show his claim to his waters. Fallini paid over $60,000 to have map produced. The BLM then used the information on the map to file for sole ownership by the BLM on Fallini’s waters. Fallini characterized the BLM as "blackmailers" and produced a paper trail of evidence of BLM misdeeds for the committee.

Because of the decision of the Nevada Supreme Court in 2001, current Nevada law (NRS 533.503) was interpreted to allow new water applications and developments with the BLM as the sole owner. The Legislature is now working to rewrite NRS 533.503 to remedy this erroneous interpretation of Nevada water law. Traditionally, water rights have been allocated under authority of State law by the state water engineer. Once water rights are allowed to be usurped by the BLM, they will control the water rights and from then on they will determine who gets water who will not, not the State Engineer.

O.Q. Chris Johnson, Chairman of the Nevada Committee for Full Statehood testified in favor of the Nevada Live Stock Association’s version of SB 76. Johnson said of the proposed Rhoads version, "Rising in opposition to SB 76, I find that the bill goes a long way towards weakening traditional property rights of livestock producers in their fee lands and vested water rights. The bill essentially requires ranchers to have a BLM permit before they can develop water on their own ranches. "

David Holmgren, Ranching Representative of the Nevada Committee for Full Statehood from Mineral County, testified for the Nevada Live Stock Association. "The BLM’s water applications for Douglas County violate traditional water law in Nevada. Traditionally, the BLM has not been able to own live stock. In Nevada, water rights are based on beneficial use for live stock. The 2001 Nevada Supreme Court’s decision allowed the BLM to file for 2,000 sheep and wild horses on the Douglas County water. This was the beginning of the theft of Nevada’s live stock water by the BLM. They’ve cut, cut, cut the numbers of live stock for the ranchers, but now they are filing for sheep and horse rights!"

Senator Dean Rhoads-R, Wayne Howell of the Attorney Generals Office, Legislative Council Bureau, Nevada Farm Bureau and the Nevada Cattlemen’s Association testified in favor of the Rhoads’ version of the bill. Joe Dahl and Harry Swainston supported SB 76 if their own amendments were included. Supporting Rhoads’ original bill were the BLM, Sierra Club, and the Nevada Conservation League.

SB 76 and the first reprint were opposed by the Nevada Committee for Full Statehood, the Nevada Live Stock Association, Nevada Eagle Forum, Independent American Party, Willie Buffington of the Mineral County planning commission, and numerous ranchers. The Nevada Live Stock Association completely rewrote the bill, and asked for it to be substituted in place the Rhoads bill.

The Nevada Live Stock Association’s substitution for SB 76 is attached. Please read it and contact Chairman Tom Collins 775-684-8509 or tcollins@asm.state.nv.us and ask him to support the Nevada Live Stock Association’s substitute bill for SB 76.

For further information contact: Chris Johnson 775-934-6302, David or Jackie Holmgren 775-530-5313, Janine Hansen 775-352-8262.

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Senate Bill No. 76

Proposed Amendments to SB 76

Submitted by the Nevada Live Stock Association

(Proposed Changes in Navy Blue)

(Delete in red)

Summary of Proposed Amendment

The proposed amendment to Senate Bill 76 (S.B. 76) simply denotes two classes of applicant(s) for stock watering permits as enumerated in the amended NRS 533.503 subsection (a) and (c). Subsection (b) is applicable to both classes of applicants. NRS 533.492 and NRS 533.495 have before, and as amended, substantiated the appropriateness of these classes.

These amendments apply equally to all persons and are not discriminatory.

The Supremacy Clause of the U.S. Constitution is not triggered by these amendments because U.S. 43 CFR 4120.3-9 clearly states that any right obtained for the purpose of watering livestock, "shall be acquired, perfected, maintained and administered under the substantive and procedural laws of the State within which such land is located. To the extent allowed by the law of the State…" by specifically acknowledging the limits set by state law, the United States could not have intended to occupy the entire field of regulated conduct. Thus, states have not been preempted from asserting their rights in this instance. The federal regulation itself sets the limits of the federal objective to be congruent with the limits allowed by state law.

By the few amendments below, based in historical state water law, the state water engineer can retain the authority to deny or grant stock watering applications to any person(s) based upon the amended statutes presented. The July 24, 2001, Nevada Supreme Court Opinion, under "Facts", confirmed, "The applications state that the BLM desires to appropriate the water for purposes of granting water rights to individuals seeking to obtain grazing permits from the BLM. If granted, the BLM, rather than the state of Nevada, would have the ultimate say in the distribution and use of stock water rights amongst competing interests in the livestock industry." United States v. State Engineer, No. 32740, 117 Nev. Adv. Op. No. 49.

However, Nevada’s water rights are not based upon "a grazing permit from the BLM" but beneficial use (NRS 533.490). There is no property right in a grazing permit and therefore no value. (Hage v. U.S., In the United States Court of Federal Claims, No. 91-1470L, January 29, 2002). Nevada’s stock water rights have great value and are tied to the beneficial use of the water, most of which occurred prior to the advent of the Forest Service or the BLM by the hard work of natural persons. Therefore, the entire premise that the BLM could lawfully become the grantor of stock water rights once they are acquired from the state engineer is erroneous.

The Nevada Live Stock Association represents members who are more than deeply concerned with the BLM becoming the grantor of Nevada’s live stock water. The threat that stockmen be compelled to become a partner with the BLM to perfect additional waters within their adjudicated allotments is abhorrent to their sense of raw individualism. Therefore the Nevada Live Stock Association presents the above for serious consideration before a vote is taken, as an alternative to both S.B. 76 First Reprint, and the Swainston amendment to S.B. 76, First Reprint.

Section 1. 533.503 of NRS is hereby amended thereto in the following:

Sec. 1.

    1. The state engineer shall issue a permit to appropriate water for the purpose of watering livestock (live stock) if:
      1. The applicant(s) for the permit own or otherwise possess livestock/live stock for which the permit is sought;
      2. The applicant(s) for the permit to the extent authorized by law, agree to provide the livestock/live stock with access to the water using procedures administered by the state engineer, of the water rights for which the permit is sought and, where applicable;
      3. The applicant(s) for the permit possess an adjudicated grazing allotment and;
        1. Have lawfully established a vested, superior right or priority appropriation of entitlement in land or water or both in the allotment, which is recognized by both the federal and state governments by virtue of the adjudication; and
        2. Have a superior right over subsequent entry men for stock watering purposes on the said allotment(s) and thereby are lawfully entitled to apply for a stock water permit within the allotment boundaries to the exclusion of all others.
    2. This section must not be construed to impair the vested right and/or prior appropriation to the use of water for the purpose of watering livestock/live stock.
    3. By virtue of Nevada’s police power to regulate water within the state, Nevada’s legislature has rationally decided to assert control over Nevada’s livestock/live stock water. As the state of Nevada is a sovereign state and not disposed to jeopardize or surrender any of its sovereign rights, this chapter applies to all lands in the State of Nevada lawfully subject to its police powers (NRS 522.140).

      NRS 533.492 is hereby amended to read as follows:

      NRS 533.492 Subsisting right to water livestock: Manner of proof; marking of location of right.

      1. Subsisting right to water livestock may be proven by an owner of livestock by one or more of the following items of evidence for the number of livestock and date of priority:

      1. As to water rights on open range, (whether) public lands, or unfenced private lands or a combination of these:
        1. A statement of priority of use submitted to the Taylor Grazing Service, predecessor to the Bureau of Land Management, to show the numbers of livestock grazed upon the open range, for years 1928 to 1934, inclusive, if accompanied by evidence of changes or absence of change since the date of the statement;
        2. A license issued by the Taylor Grazing Service for use upon the open range; or
        3. A statement of priority of use, or a license, issued by the United States Forest Service for the grazing of livestock before 1950.
        4. A statement of vested, superior right or priority appropriation of entitlement in land or water or both, which is recognized by both the federal and state governments by virtue of an adjudicated grazing allotment.
      2. As to water rights on other privately owned land:
        1. An affidavit concerning the number and kind of livestock by a person familiar with the use made of the lands;
        2. A record of livestock assessed to the claimant of the right, or his predecessor, by a county assessor;
        3. A count of livestock belonging to the claimant or his predecessor made by a lender; or
        4. An affidavit of a disinterested person.

NRS 533.495 is hereby amended to read as follows:

NRS 533.495 Subsisting rights not to be impaired. Whenever one or more persons shall have a subsisting right to water range livestock at a particular place and in sufficient numbers to utilize substantially all that portion of the (public) range readily available to livestock watering at the place, no appropriation of water from either the same or a different source shall subsequently be made by another for the purpose of watering range livestock in such numbers and in such proximity to the watering place first mentioned as to enable the proposed appropriator to deprive the owner or owners of the existing water right of the grazing use of such portion of the (public) range, or substantially to interfere with or impair the value of such grazing use and of such water right.

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