| by Steve Miller
copyright © 1996, Electric Nevada
The surprisingly sharp profile of vigorous federal efforts to claim Nevada water rights has been revealed in figures released by the Office of the Nevada State Engineer.
filings in Nevada by the U.S. Forest Service and Bureau
of Land Management had remained essentially flat through
most of the century, the two agencies about 16 years ago
abruptly began making wholesale claims to vested and
'reserve' water rights on Nevada land. [See accompanying
Despite usually being ruled groundless, and thus invalid, by the state engineer, those claims have continued to this day, and U.S. Department of Justice lawyers today appear to be preparing to continue the agencies' offensive in the courts.
Current State Engineer Mike Turnipseed, who authorized release of the figures to Electric Nevada, attributes much of the historically sudden federal claim-filing activity to a shift in tactics forced on the agencies by new pressures in the late '70s and early '80s for them to obey a long-standing provision of federal law termed the McCarran Amendment.
"Prior to the late '70s -- '77, '78 -- the United States, in particular the BLM, didn't comply with state law at all. If they wanted a stockwater well out somewhere on BLM land, they just went and drilled one, and didn't require any permits to do that or anything," said Turnipseed.
"Some of the bills that came out of that era required them to comply with state law when it came to water rights," he said. There was also "some urging from the President in the early '80s."
Nevertheless, said Turnipseed, the federal agencies have for years done everything possible to avoid exact legal specification of what water rights, if any, the federal government actually has.
"They try everything they can, to not state what their rights are," he said. "The latest [was] that they didn't feel the McCarran amendment applied to them in Oregon and Nevada. But that's now been settled by the 9th Circuit and they did not appeal that."
Under the McCarran amendment, sponsored by Nevada Senator Pat McCarran and signed into law in 1952, the United States waived sovereign immunity and consented to abide by the results of state water adjudications. The amendment is often viewed as a Congressional effort to compel recalcitrant federal land agencies to acknowledge a state preeminence in water rights Congress had ratified into law almost a century before, under the Mining Act of 1866.
Still, for the next 40 years, says Turnipseed, the agencies have continued to drag their feet.
"They ... resisted participating in our adjudications all along, saying ours doesn't fit the McCarran amendment. It's beyond me how Senator Pat McCarran, from Nevada, would draft language that didn't apply to adjudications in Nevada."
He explained that in some Western states, adjudications -- which determine the extent of water rights often dating from the 1800s, long prior to the existence of the U.S. Forest Service, the BLM or even the state water agencies themselves -- begin as a judicial process and then are remanded to state agencies to do all the administrative work and report back the court. In other states, like Nevada and Arizona, the process first begins in the state administrative agency and then moves into the judicial realm.
Other observers, however, suggest the basic explanation for the upsurge in federal water claims lies elsewhere.
Even if the federal agencies did begin hedging their bets in the late '70s, they say, the sudden upsurge in federal water-claim filings was sudden, and not the result of bureaucratic fingers in the wind.
In its essence, they say, it was the result of a takeover of the agencies at that time by the newly militant environmentalist movement, fundamentally hostile to the western stock industry and intent on stopping grazing or stockwatering on federally administered lands. They note that as recently as 1988 a common environmentalist slogan, regarding the western rangelands, was "Cattle Free by '93."
One western water rights activist who makes this argument is Dr. Anthony L. Lesperance, who retired in 1984 from the University of Nevada, Reno, after a 25-year-career as a professor of animal and range science.
Now an Elko businessman and unopposed candidate for the Elko county commission, he says he had, for many years, a close-up vantage point from which to watch the change occur in the federal agencies.
"I've been to many, many seminars, with many, many Forest Service people and BLM people, etc., and I know that the philosophy was starting to surface in the early 70s. And it still was not reaching the ground level. The people out here regulating livestock grazing, were having to deal with some of this, as it was coming down from an administrative standpoint, but basically things were still pretty good.
"But you began to see that erosion from the top down, and then all of a sudden, you began to see a change in hiring policy."
Increasingly, he says, the agencies, for their new hires, were bypassing land-grant institutions where range management was taught and where graduates had a "basic concept of livestock grazing."
Instead, he said, the political appointees atop the federal agencies were seeking out young men and women from liberal arts institutions who had received "an entirely different academic approach to this whole thing."
"You started to see these people hired in the late 70s, early 80s, and you have a preponderance of them today," says Lesperance.
In today's new, environmentalist-dominated, federal land management agencies, he says, the attitude is fundamentally hostile to the western livestock industry.
Worse, he charges, the agencies -- especially the Forest Service -- have set out to "steal literally millions and millions of dollars worth of private property" water rights long ago vested
on western rangelands that, nowadays, are
administered by the federal agencies.
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