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 
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.