Elko Activist Charges:
Filed Brief Discloses Federal Bid
To 'Steal' Nevada Water Rights

  copyright 1996, Electric Nevada

An Elko County property rights activist says he now has proof that the U.S. Forest Service is trying to steal from Nevadans water rights worth millions of dollars.
What now gives the lie to often-repeated assurances from federal land managers that no such agenda exists, says range management consultant Tony Lesperance, is a brief recently filed with the State of Nevada by lawyers representing different branches of the federal government.
Lesperance, an Elko businessman and unopposed candidate for the county commission, released a statement Friday citing a 55-page federal brief filed in mid-July with the office of Nevada state water engineer Mike Turnipseed.
Submitting the brief was Kenneth G. Paur of the Office of General Counsel, U.S. Department of Agriculture. Listed "of counsel" was Stephen Bartell, Environmental and Natural Resources Division, U.S. Department of Justice.
Electric Nevada's telephone calls to Paur's home office in Ogden, Utah were not returned by press time (although a secretary did explain that Paur pronounces his name "power.") Representatives of the State Engineer's office confirmed that Paur had filed the brief, but would not comment on any of its contents.
"Most people were raised with a certain degree of respect for 'Smokey the Bear,'" said Lesperance, "and just have difficulty believing that an agency of the United States would blatantly attempt to steal literally millions and millions of dollars worth of private property rights."
Nevertheless, he said, an action in February by state engineer Turnipseed forced the Forest Service's hand and compelled the agency to put on the record its real position -- that Nevada ranchers have no water and forage rights on Forest Service land, notwithstanding federal and state laws, long pre-dating the national forests, that recognize such rights.
Turnipseed's preliminary adjudication of the waters of southern Monitor Valley" in Nye County, said Lesperance, had "recognized the existing rights of private citizens of the State of Nevada, as well as existing federal rights under state laws."
But because Turnipseed "threw out the bogus claims of the Forest Service for these waters," the federal agency had been placed in a "quandary," said Lesperance.
"To let [Turnipseed's decision] stand would just about destroy the years and years of efforts, not to mention the millions of dollars of taxpayer monies, squandered by the Forest Service" in earlier efforts to force private citizens off the Nevada range, said Lesperance.
He quoted Paur's brief as saying "as a matter of law ... a private party may not own a water right for stockwatering purposes where the point of diversion and place
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of use are on the national forests."
Lesperance called that, "the most significant challenge to Nevada state law ... that perhaps has ever occurred in the history of this State."
He further quoted the Paur brief as saying, "if stockwater rights are awarded to the livestock owners and not the United States, management of public grazing on the federal rangeland becomes virtually impossible.
"Should the Forest Service wish to rotate livestock permittees for range management purposes, successive permittees could be required to negotiate with preceding permittees to purchase water rights. Such a requirement would inhibit the efficient management of the utilization of water and forage."
Lesperance, who retired in 1984 from the University of Nevada, Reno, after a 25-year-career as a professor of animal and range science, called Paur's "rotating permittees" scheme "so absurd that it hardly warrants comment."
"What is being proposed," he said "is basically the final nail in the coffin of the western livestock industry, and everything associated with it."
Lesperance noted that despite the large number of lawsuits filed by Nevada ranchers against federal land agencies in recent years [see "Lawsuits" story], the Forest Service has in each instance contended that "each of these lawsuits involves or represents certain specific 'events,' and in no way represents any change in the agenda of the Forest Service or its philosophy."
However, he said, Paur's arguments "clearly, once and for all, define what the Forest Service position is" -- a position flying in the face of 130 years of precedent, since "the United States of America granted the waters of the State of Nevada to this State for use by citizens of this State in the Act of Congress of July 26, 1866," up through a summary judgment issued on March 8, 1996 year by the United States Court of Federal Claims, in the case of Hage v. U.S.
Contacted by Electric Nevada, one attorney familiar with the history of Nevada water rights issues agreed with Lesperance. Read part of the Paur brief, he said, "that's never been the law -- he's way off base on that."
Lesperance also noted that the same day that Paur filed the Forest Service brief, David Nawi, Solicitor for the Pacific Southwest Region of the Department of Interior, filed a similarly reasoned brief in behalf of the Bureau of Land Management.
The State Engineer's final hearing for the lower Monitor Valley water adjudication -- a two week process -- is scheduled to begin September 23.

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