Babbitt's Impact on Nevada
'Range Reform' Deforms Water Scene

by Steve Miller
copyright 1996, Electric Nevada

"We're having a heck of a time getting any water development done in this state," said Doug Busselman of the Nevada Farm Bureau.  
He was explaining the freeze -- still existing today -- that descended on new Nevada range improvements two years ago in response to the Clinton Administration's "Rangeland Reform" regulations.
Nevada's state water engineer, Mike Turnipseed, agrees.
"Development of water on the rangeland has come to a screeching halt," he told Electric Nevada. "There's been no action taken on a lot of these [water applications] for a long time."
"It doesn't matter whether the rancher wants to pay for the improvements or the BLM [Bureau of Land Management] wants to pay for the improvements. The whole process has come to a standstill because of the Rangeland Reform and the resulting Senate Bill 96."
Under "Rangeland Reform," the Clinton range policy announced in March of 1994 by Interior Secretary Bruce Babbitt and now-departed Agriculture Secretary Mike Espy, the federal government was to take ownership of all water rights on western land administered by federal agencies -- even if those water sources had been developed by, and the rights to them had been historically the property of, private individuals.
Senate Bill 96, passed by both houses of the Nevada Legislature in 1995 and signed into law by Governor Bob Miller, was intended to block implementation of Babbitt's policy in the state of Nevada. The bill, its sponsors say, was designed to not only protect the water rights of farmers and ranchers from the federal government, but also the historical legal position of the State of Nevada.
"When Babbitt came along and said, 'from here on out, the water rights belong to the federal government,' that's what created the need to codify something in state statutes so that private individuals would still be able to maintain or establish, based on state law, private water rights on public lands," says the farm bureau's Busselman.
State engineer Turnipseed, who opposed the original form of the state senate bill, says the Babbitt policy disrupted a successful arrangement between the BLM and ranchers.
"There was a time when both the ranching community and the BLM, rather than fight over whose name was on the paper, [would] make joint filings.
"That seemed to work fine, until Babbitt comes out with the Rangeland Reform," he said.
"It, in the reading, looks like another federal takeover. The language says that all water rights and water management will be in the name of the United States unless otherwise provided by law."
But what may have looked like a successful arrangement from the point of view of the State Engineer's office, say others, has actually been a squeeze play on Nevada farmers and ranchers by the BLM.
"A person may have a water right on the public lands already, and in order to make beneficial use of that water, they need to do a development," says Busselman.
"They go to the agency, the BLM, and say 'We need a permit from you guys," and [the BLM officials] say, "Well, we'll give you a permit when you give us half the water."
Elko Assemblyman John C. Carpenter says the so-called "joint" claims are generally extorted claims, where the feds won't cooperate at all unless private water rights owners "buckle under."
"What they've been doing is, if you drill a well or something, then they want half of the water right. And so some people, I guess, have had to do that.
"If the people really need the water, and the BLM insists they have to have half the water right, why, there's not too much you can do," he said.
Carpenter called SB-96 "one of the most important bills" to come out of the 1995 legislature.
Both he and Senate Committee on Natural Resources Chairman Dean Rhoads -- out of whose committee the
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bill came -- interpreted the new law as preventing the U.S. government from attaining any new stockwatering rights in the state of Nevada.
"It was our clear intent in the Senate," said Rhoads, "that what the bill would do is that, if you didn't own livestock, you could not get a water filing for a stockwater right.
"The problem that we saw, that was gradually getting worse and worse, was that the BLM was filing for numerous water rights. We feared that they already owned the land and [if they got the water rights, too] then [the state of Nevada] would really be tied up.
"So we thought," said Rhoads, "we should put in something in there so the water engineer could not issue a water right to anybody that doesn't own livestock. And that was our intent. And I know [that], because of SB-96, the water engineer has not granted any water rights for stock water purposes, since that legislation was passed."
But State Engineer Turnipseed says interpretation of the new law is not entirely clear.
While the original bill's language originally said permits to appropriate water could only be issued to applicants who owned livestock, it was eventually changed to "applicants ... legally entitled to place the livestock on the public land."
"On the Senate side, in their minds that meant you had to own the livestock," said Turnipseed, while "on the Assembly side, particularly, with Assemblymen [Pete] Ernaut and [Max] Bennett, they couldn't figure out what the big deal was. They thought that clearly included the BLM and Forest Service."
Assemblymen Ernaut and Bennett were not available for comment Friday.
The state engineer says he requested an Attorney General's opinion to help guide his office's implementation of the law.
"It is due out any day. We've had some inclination on which way it's going to read, but it's been both ways," he said, laughing. "I know there's a lot of them [assistant AG's] are working on it."
Phone calls Friday from Electric Nevada to natural resource lawyers in the Attorney General's office were not returned by press time.
Joseph C. Guild III, an attorney and legislative representative of the Nevada Cattlemen's Association, said the new law does effectively bar the state engineer from issuing permits to the U.S. government for watering stock on land administered by the federal agencies.
"They [the federal agencies] don't own cattle, and I can't imagine a situation where they would own cattle and graze them on the public lands, because there's a preferential right associated with these livestock permits."
Guild also noted that the Clinton administration "Range Reform" efforts to administratively nullify the nation's 90-year practice of grazing preferences was recently struck down in a federal district court case in Wyoming.
On June 12, a federal district court in Wyoming declared important sections of the Department of Interior "Rangeland Reform" policy illegal.
U.S. District Court Judge Clarence Brimmer ruled the department could not eliminate grazing preferences, could not assume title to range improvements paid for by a permittee, could not allow conservation groups to obtain permits for the purpose of not grazing livestock, and could not issue grazing permits to applicants who are not in the livestock business.
Brimmer went on to scathingly criticize Babbitt.
"The Court cannot ignore the Secretary's disregard of his congressionally imposed duties," he said. "It must be stopped before it wreaks havoc with the ranching industry that Congress has tried to preserve."
The Clinton administration is appealing the decision to the 10th Circuit Court of Appeals.

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