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Turnipseed happy about ruling

by Sheila Gardner

State water engineer Mike Turnipseed said he is pleased with this week’s court ruling that upheld his decision to deny stockwater rights to the Bureau of Land Management for nine springs in Douglas County.

District Judge David Gamble issued a decision Wednesday that said state law which protects Nevada’s water from federal control is constitutional.

“I was pretty happy with the judge’s decision,” Turnipseed said Friday. “We prevailed on all counts. The judge was free to substitute his own opinion for mine since he’s the lawyer and I’m the engineer. I’m not very familiar with some cases and when the law talks about ‘intergovernment immunities,’ that goes right over my head.”

Gamble issued a 22-page decision upholding Turnipseed’s decision to deny the Bureau of Land Management nine stockwater permits for springs in Douglas County. Turnipseed based his decision on Senate Bill 96 passed by the Legislature in 1995 which says that an applicant for a stockwater permit must have a grazing permit first.

The bill was passed in response to the Department of Interior’s Rangeland Reform program which required that permits acquired for livestock watering on public lands be in the name of the United States.

Prior to the new federal program, Nevada followed a three-tier approach when issuing stockwater permits: 1. in the name of the United States solely; 2. in the name of the grazing permitee solely; or 3. in the name of the United States and the grazing permittee jointly. The determination was based on which entity perfected – or legally recorded – the application.

“The cows don’t care whose name is on the paper,” Turnipseed said Friday. “The decision is important institutionally as to who has jurisdiction over the state’s water and who can allocate it.”

“The legislative history of SB96 provides a clear picture of the concerns of the Nevada Legislature and what the Legislature intended to be accomplished by SB96. … the primary thrust of the legislative history indicates that there was a concern that the federal government was attempting to control Nevada’s water,” Gamble wrote in his decision.

The judge said that given the Legislature’s clear intent, the logical interpretation of “legally entitled” is that a qualified applicant for a stockwater permit is one who has been issued a grazing permit or lease from the BLM.

The BLM argued that it is obviously “legally entitled” to place livestock on public land because it is the entity which issues the grazing permit.

Gamble called the BLM’s argument “unconvincing.”

“The BLM fails to recognize that, although the United States may have the ability and power to place livestock on the public lands under the (U.S. Constitution) property clause, the BLM has not been given the mandate or authority from the U.S. Congress to do so,” Gamble said in his decision.

“If the U.S. Congress decides that the BLM should be allowed to graze its own livestock, that authority should be expressed more clearly,” Gamble said.

John Singlaub, district manager for the Carson City office of the Bureau of Land Management, said Wednesday the agency originally filed for the stockwater permits on the Douglas County springs was because “the permitee didn’t want to spend the $50 it took to file for them.”

He said the BLM was motivated by a desire to improve the land.

“My concern is this is holding up our ability to add water out there for the benefit of wildlife, the wild horses, to spread the use that improves the land,” Singlaub said.

He said other states have “reacted similarly by trying to press state legislation that would limit the BLM’s ability to hold stockwater rights.”

“Each state is different,” he said. “The federal government has said it wants to follow state water law. My assumption is that policy will continue. I’d just as soon get on with it, doing the right thing for the land and complying with state water law.”

The BLM argued that SB96, as interpreted by the state engineer, violates the agency’s equal protection rights under the Nevada Constitution.

“This court has serious concerns about whether the federal government is entitled to equal protection under the Nevada Constitution. However, this court will presume, as does the BLM without citing any applicable authority, that the BLM is entitled to such equal protection,” Gamble wrote.

In addressing the BLM’s challenge to Nevada’s police powers, Gamble said, “Nevada has the ability to regulate waters within the state. By requiring a stockwater applicant to have an interest in the livestock to be watered, Nevada is furthering the purpose of protecting the livestock industry and the public’s interest in the livestock industry.”

Gamble’s decision concludes, “The Nevada Legislature reacted to the BLM’s Rangeland Reform program and passed SB96 to regulate how stockwater permits would be issued. The BLM is not a qualified applicant for stockwater permits because it is not ‘legally entitled’ to place livestock on the public land. Further, the state of Nevada properly exercised its police power in enacting SB96, did not violate the BLM’s due process or equal protection rights under the Nevada Constitution and did not violate the intergovernmental immunities doctrine.”

Deputy Attorney General Marta Adams, who represented the state engineer, said she hadn’t seen Gamble’s decision on Wednesday, but added she wouldn’t be surprised if the BLM appealed it.

“Certain rural constituents got the law passed in 1995 because they thought there was an attempt by the BLM to usurp state control over water,” Adams said. “We argued in favor of the constitutionality of the law and, obviously, the judge agreed with us.”

Stephen Bartell, a federal attorney in Washington, D.C., who argued on behalf of the BLM, said Friday he was disappointed with Gamble’s decision.

“Other than that, we have no official comment,” Bartell said. “We don’t know if we’ll be appealing. We’re studying the decision and considering what our next move will be.”

The Record-Courier E-mail: rc@tahoe.com

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