Sagebrush Rebellion II
Kelly Spring: Ground Zero in War for West

Sixth in a Series

  by Steve Miller
  copyright 1996, Electric Nevada

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 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."
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Forest Service officials at the Ruby Mountain district did not respond to Electric Nevada requests for comment.

Elko County Files Suit

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.

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