It was a defining moment, two
years ago in Elko, when people learned that Forest
Service rangers were ordering Ruby Valley rancher Don
Duval to destroy Kelly Spring. If he did
not rip out the improvements he'd made that converted a
mudhole into a flowing spring, said the rangers, he'd
face a fine of up to $10,000 and prison of up to two
years. The order, said Elko Daily Free
Press editorial page editor Dan Steninger, writing in
Online Nevada, journal of the Nevada Policy Research
Institute, was widely viewed as "mindless
retribution for challenging federal orders." Other Elko folks came right out and
accused the federal agency of dog-in-the-manger spite.
The Forest Service itself had failed to secure water five
years earlier when it had installed collection boxes in
the same area, during the drought. Duval's work, on the
other hand, not only worked efficiently to get water down
to his cattle trough, but it was benefiting local
wildlife and migrating deer herds -- something the Forest
Service system, for all the agency's supposed concern,
had failed to do. The federal agency's
water-collection boxes had been placed at water-seepage
spots too high on the side of the mountain, says range
management consultant Dr. Tony Lesperance. "Common sense would tell you
those were only wet weather seeps," he told
Electric Nevada. Lesperance, asked to investigate the
Kelly Spring locale on behalf of Elko County, says
another problem with the feds' system was the water
lines. "They had low spots and they
froze. It was just improperly engineered and improperly
put in; the system never worked." But he also learned, said
Lesperance, that other Forest Service actions were what
had originally required Duval to go up to Kelly Spring. In the process of the Forest Service
project, says the consultant, the agency "fenced off
all these seeps. So actually ... they made far less water
available, because historically the cattle had been able
to get drinks out of those seeps. "Once they were fenced off and
put into the pipelines which no longer worked, then there
was no water available. "Duval felt he had to do
something, so he made the decision to go up there, ...
put a collection box on Kelly Spring, [and] run a
pipeline down," said Lesperance. He added that Duval owned vested
rights on the spring that dated back to about 1880, prior
to the establishment of America's national forests. Nevertheless Forest Service
officials complained to Federal magistrate Phyllis Atkins
that Duval's spring improvements had been an
"unauthorized disturbance" on federal land.
Atkins ordered the rancher to do whatever the Forest
Service said, which turned out to be wrecking the spring
and covering it with a foot of dirt. At that point Dan Steninger picks up
the story: "Figuring Duval was going to
follow the decree, local rabble-rousers organized a Kelly
Spring Fencing Party in which interested citizens were
invited to spend a Saturday ... driving fence posts
around the spring...in an admittedly symbolic effort ...
to save the spring. "About 500 people showed up and
the guy who brought the barbed wire wasted his time.
There were so many steel posts surrounding the spring
that the wiry Duval couldn't have squeezed in
sideways." However, when a federal judge
continued to threaten Duval, the north- Ruby Valley
rancher returned, removed six of the steel fence posts
and -- just before the fine-or-prison deadline -- tore
out the spring box. "His water source was now
gone," says Steninger, "but the Forest Service
was content in demonstrating its muscle." With Duval off the hook in relation
to federal authorities, but deprived of his water, some
unidentified Elko County citizens paid a visit to Kelly
Spring. Less than 24-hours later, a brand-new spring box
had been re-installed. "The water flows to this
day," wrote Steninger. "For some reason the
Forest Service hasn't brought anyone up on charges this
time around." 
Forest
Service officials at the Ruby Mountain district did not
respond to Electric Nevada requests for comment.
To a lot of Elko County residents,
says Lesperance, the Forest Service's behavior at Kelly
Spring epitomized what had already come to be seen as a
new and malicious hostility in the federal agency. But what led Elko County to file
suit against the U.S. Forest Service, he says, was the
agency practices the county discovered on either side of
Kelly Spring. "I was hired by the lead
attorney for the county at that time, John Marvel,"
says Lesperance. "He'd been hired by the county to
pursue this, and he came to me because I'd worked with
him for years, and said, 'you've got to help me on this.'
"So I went out and took at look
at Kelly Spring, and my reaction was, it's a legitimate
situation, but it's really not that much to get excited
about. "However, a good old friend of
mine, Von Sorenson, said 'you best look at the springs on
either side, because there's a whole lot more going on
out there that nobody's said a word about.' Lesperance says when he did look at
the other springs, he found that one had been covered by
the Forest Service with earth-moving equipment, pushing
about four feet of dirt, or 2,000 cubic yards, to fill
the spring. On the other springs, the agency was
refusing to allow the ranchers who owned the water rights
to maintain the springs. With no maintenance, springs become
clogged and stop flowing, shutting off water to the
ranches down slope. It is the Forest Service practice
"of basically disallowing you to get your
water," that is the basis of the lawsuit, says the
land management consultant. "They've taken two major
springs out there. One they covered with a D8
[caterpillar tractor], and basically obliterated the damn
thing. This was a very big spring, that produced 500-600
gallons a minute" into "this old old ditch that
comes down from it to this ranch. And they completely
shut off this ranch's supply of water. "The other spring is called
'Ray Spring' and that's been a historic spring, again
with a ditch that was put in, in 1889, and [it is] the
only source of water for what is called the Woolverton
Ranch, from probably the 1870s." Because the Forest Service
"won't let them clean it out any more," said
Lesperance, "the spring's completely dried up. The
Woolverton Ranch completely dried up, all the trees died,
the house was abandoned and on and on and on." In an affidavit filed in Elko
County's federal lawsuit against the U.S. Forest Service,
Dr. Lesperance says the federal agency's seems to be
pursuing a lawless effort to simply destroy the ranching
business in Elko County: "The complete disregard by the
Forest Service for privately owned vested water rights is
in total contrast to Nevada State law... "Forest Service actions appear
now to be designed to further remove livestock numbers
instead of developing usable water sources, or allowing
the permittee to develop water sources." He also argues that the Forest
Service actions are negatively affecting the welfare of
wildlife in the region. Lesperance, the youngest emeritus
professor of Animal Science ever in the University of
Nevada system, says Forest Service actions not only are
beginning to harm the economy of northeast Nevada but
will soon begin impacting that of the entire state.
Next week: The Feds'
Intimidating Courtship of the Nevada State Water
Engineer.