Abrupt Upsurge in Federal
Filings for Nevada Water

  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.
Though 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 chart.]
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
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on western rangelands that, nowadays, are administered by the federal agencies.
Lesperance acknowledges the charge sounds dubious to folks raised to respect "Smokey the Bear," but says the data supports the accusation.
As evidence of such intent on the Forest Service's part, Lesperance points to the state of Nevada's current preliminary adjudication process for the waters of Nye County's Monitor Valley. In that process, 179 water claims filed by the Forest Service were recently rejected by the office of the Nevada state engineer, which said the federal agency was trying to claim rights already long been owned by others.
"The United States of American Forest Service (USFS) filed numerous claims of vested and reserved rights for stockwatering and wildlife purposes," wrote Turnipseed in his office's Preliminary Order of Determination for the adjudication. "These proofs are determined to be invalid and the State Engineer is recommending to the Court that these proofs be rejected in this adjudication.
"The proofs of vested rights are determined to be invalid on the grounds that the claimed use is stock water which, in all cases, duplicates the claims filed by others who tracked to the original users."
More evidence that the upsurge in federal water claims since the late '70s is part of a drive to nullify private water rights on the rangelands, says Lesperance, is provided by a legal brief filed with the state engineer in mid-July by attorneys for the U.S. Department of Agriculture -- representing the Forest Service -- and the U.S. Department of Justice.
The brief, exceptionally long at 55 pages, seeks to justify those same 179 Forest Service claims to vested Monitor Valley water rights by explicitly asserting that no private vested rights can exist on Forest Service land.
"As a matter of law," says the brief, "a private party may not own a water right for stockwatering purposes where the point of diversion and place of use are on the national forests."
"The United States of America," responds Lesperance, "granted the waters of the State of Nevada to this State for used by the citizens of this State in the Act of Congress of July 26, 1866. Those rights have been recognized and protected by numerous acts, laws, local custom and other actions. Additionally, Nevada's water laws have been recognized and respected by countless cases in state and federal Courts, and certainly more recently by the United States Court of Federal Claims" [in Hage v. U.S., when the court explicitly rejected, in a summary judgment, the contention by the Forest Service that private property water rights on Forest Service land "have no relevance today."].
"Regardless of this rich water history, the United States Forest Service has finally played its hand for one and all to see," said Lesperance. "They want the water and they are going to take it."
Electric Nevada tried to reach two of the federal attorneys listed on the brief for comment on this story, but neither were available. In Washington, however, Jack Haugrud, an Assistant Chief of the General Litigation Section which provides support to the Forest Service and BLM in their Nevada legal activities, did respond.
He explained what seemed to be a bit more nuanced legal position for the Forest Service.
"I think the position that we have pretty consistently maintained, as far as I know, is that after a forest is reserved, at that stage you cannot perfect a water right. Once you're subject to the permitting system that the Forest Service has had in place since the forest reserves were created, or in some instances before, that water right is properly held in the name of the United States and not in the name of the permittee."
And while denying any ulterior motive by the federal agencies, he did acknowledge they foresee no more private water rights on the rangelands.
"Oftentimes you get people who seem to think the federal government has some kind of ulterior motive for claiming these water rights," he said. "These are water rights that are used for the rangeland program. For grazing cattle. It's just a matter of, should that water right remain with the land owner or be with the lessee or permittee, and we think it should be the land owner."
Late last month, in the first stage of this story's preparation, Electric Nevada did contact the Department of Agriculture attorney who signed the 55-page federal brief, Kenneth G. Paur of Ogden, Utah, and asked him for his explanation for the sudden activity suggested by the spikes at the right-hand end of the chart.
While Paur said he was not sure, and could only offer some "informed speculation," his best guess, he said, was that the spikes were "to a large extent associated with the Sagebrush Rebellion," in that the federal agencies were reacting to a surge of individuals attempting "to perfect private water rights on federal land in a big way at about that time."
"So what I suspect you're seeing at that point are responsive filings by the Forest Service and the BLM, because those proofs were filed by private individuals," he said.
"The United States was forced to respond by protesting those rights and making private filings of its own."
Turnipseed acknowledges that, during that period, ranchers and sheepherders did hustle to file claims, but he attributes the original stimulus to the federal government's actions.
"About the same time as the -- if you will -- Sagebrush Rebellion I, the cattlemen's association and the Woolgrowers were urging all of their constituents to make sure that their water rights were firmed up, to oppose this federal takeover, so to speak" he said.

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