AB 408 Letter Nevada

Bruce A. Wagman 415.901.8762 [email protected]

ONE MARKET SPEAR STREET TOWER THIRTY-SECOND FLOOR SAN FRANCISCO, CALIFORNIA 94105

t 415.901.8700 f 415.901.8701

www.schiffhardin.com

CHICAGO | WASHINGTON | NEW YORK | LAKE FOREST | ATLANTA | SAN FRANCISCO | ANN ARBOR | DALLAS

March 30, 2015

The Honorable Robin L. Titus, Chairperson The Honorable Jim Wheeler, Vice Chairperson The Committee on Natural Resources, Agriculture, and Mining The Honorable Sen. Don Gustavson, Chairperson, Senate Natural Resources Committee 401 S. Carson Street Carson City, NV 89701-4747

Re: Assembly Bill 408

To The Honorable Robin L. Titus, Jim Wheeler, Sen. Gustavson, and the Members of the Committee on Natural Resources, Agriculture, and Mining:

We represent the American Wild Horse Preservation Campaign (AWHPC), and its more than 3,000 members and supporters in Nevada. AWHPC is a coalition of more than 60 environmental, horse advocacy and animal protection organizations working toward the preservation of Americas public land and the continued protection of wild horses and burros on their Congressionally-established habitat in the West. We are writing to urge you to reject or withdraw Assembly Bill No. 408 (AB 408) or any similar bill due to significant problems related to the constitutionality of the bill, its impermissible conflict with federal law, its apparent disregard of Nevada law and policy, and the likely promise of legal challenges to the bill, should it be enacted. This bill is clearly an attempt to circumvent the federal governments land and water rights with respect to significant parts of the state, and stands in serious disharmony with the states policy regarding the protection of its natural resources.

AB 408 Statutory Description

AB 408, as currently proposed, will amend Nevada Revised Statutes (N.R.S.) Chapter 321 by adding a series of provisions that attempt to fundamentally alter federal law with respect to the federal governments rights to land, come into conflict with the federal governments eminent domain rights under the Fifth Amendment to the federal Constitution, and impair the federal governments superior water rights on public lands in Nevada.

AB 408 purports to be a law addressing the use of public lands in the state, and Section 2 of the bill exempts certain lands held by the federal government, but it does not consider numerous possibilities for other appropriations by the United States, which are codified in multiple statutes discussed in this letter. Instead, it would ride roughshod over those interests.

The Honorable Robin L. Titus, Chairperson The Honorable Jim Wheeler, Vice Chairperson The Committee on Natural Resources, Agriculture, and Mining The Honorable Sen. Don Gustavson, Chairperson, Senate Natural Resources Committee March 30, 2015 Page 2

Section 3(1) prohibits federal ownership of land in Nevada if the federal government does not obtain ownership (a) after providing consideration; (b) pursuant to N.R.S. 328.065 through 328.135; (c) due to use of the land pursuant to the federal constitution, Art. I, Sec. 8, cl. 17; or (d) by recording its ownership with the County Recorder. While this subsection properly exempts many if not most federal land appropriations, it is still in conflict with potential eminent domain proceedings.

Section 3(2) of AB 408 evinces an illegal and unconstitutional intent to cut the federal government off from any rights to use land or water, . . . prohibit or restrict the use of or enter into any contract relating to land or water within the borders of this State for any purpose [subject to the provisions of subsection 1 of Section 3]. While subsection (2) does incorporate the same permissible uses contemplated in subsection (1), it ignores multiple other legal avenues through which the federal government may maintain water rights throughout the state.

Section 3(6) represents a gross overstatement of state powers, and would purportedly prohibit the federal government from enforcing any federal law or regulation in this State except on land acquired pursuant to [Section 3(1)].

This unusual and overreaching attempt ignores conflicting federal statutes and more than a century of established decisions. The bill, if enacted, would clearly be preempted by federal law, as explained below. That is, the statutory language certainly provides for a scenario in which multiple federal entitlements (related to securing land or water for environmental, agricultural, or wildlife interests) can, and likely will, be denied water that is vital to their existence. Although there is no way to project how this legislation will be applied, the very fact that the law allows for such a result renders it defective and impermissible.

Section 3(2) impermissibly abridges the priority that federally-regulated parks and wildlife have with respect to water appropriation

Because the intent and effect of AB 408, Section 3(2), is to remove federal agencies authority over water rights clearly held by the federal government, AB 408 is preempted by federal law and policy. The notion that the Nevada legislature could, by an arguably politically-motivated fiat, remove the life-sustaining sources of water from federally protected species (including endangered species, birds and mammals protected by statute), as well as federal installations and reservations, is in direct conflict with established law.


With more than three-quarters of Nevadas land being managed by federal agencies, the role of the United States and the activities of these agencies are extremely significant factors in land and water management within the State. The federal government retains the right to use waters of a state to the extent necessary to provide the minimal amount of water needed for federal purposes within state borders. This is a century-old, indisputable doctrine, which has been refined by the Supreme Court in multiple decisions. See, e.g., Winters v. United States, 207 U.S. 564 (1908) (when establishing Native American reservation, federal government also reserves sufficient water to fulfill the purposes of the reservation); Arizona v. California, 373 U.S. 546 (1963) (principle of reserved federal water rights not limited to Indian reservations); Cappaert v. United States, 426 U.S. 128 (1976) (enjoining groundwater pumping that would jeopardize wildlife (desert pupfish) on national monument lands); United States v. New Mexico, 438 U.S. 696 (1978) (application of reserved water rights doctrine dependent on underlying legislation).

Two of the most notable examples are the federal Bureau of Land Management (BLM) and Forest Service, which both have protected interests in Nevada lands and in access to waters in Nevada. The BLM has a reserved water right for public water holes and springs that may provide life-sustaining sources for a variety of wildlife. Public Water Reserves protect those interests and have done so for nearly a century. Additionally, in the wilderness, federal land management provides for reserved water rights, which are set aside pursuant to the Wilderness Act of 1964, 16 USC 1131. The Wilderness Act specifically reserves the amount of water within the wilderness area necessary to preserve and protect the purposes for original designation of the area, and to ensure the public is able to enjoy the realization of those purposes.

One significant concern is the likely conflict with the BLMs management and protection of wild horses under the Wild Free-Roaming Horses and Burros Act (WFHBA), 16 U.S.C. 1331-1340, which recognizes as a matter of federal law that wild horses are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene. 16 U.S.C. 1331. It is hard to imagine a stronger declaration that wild horses need, deserve and must be accorded protection including access to reserved land and concomitant water rights across the country. The WFHBA and its detailed regulatory guidance further demonstrate the federal governments intention to prevent states from interfering with the federal management and protection of wild horses and burros, at least to the extent that state action would negatively impact wild horses. This has been unequivocally confirmed by the United States Supreme Court in Kleppe v. New Mexico, 426 U.S.


529 (1976), in which the Court stopped New Mexico from removing wild horses from federal land. AB 408 would have the same effect as New Mexicos conduct that was prohibited by Kleppe, and thus the law would be similarly enjoined. That is, if horses are denied water on any land, they may be effectively eliminated from federal lands, which would fall directly in the line of the Kleppe Courts proscription. The protections of the WFHBA, and the delegation of power to federal agencies, must remain supreme to state laws under the federal Constitutions Supremacy Clause, and thus AB 408 impermissibly regulates in an area already occupied by the WFHBA. We note that if Nevada was attempting to increase protections of wild horses by, for example, providing them with greater water rights, that would be more consistent with the WFHBA, however, AB 408 creates a potential conflict with the WFHBA, and would be subject to challenge on that basis

Reservations of water rights may exist pursuant to federal law under the Federal Land Policy and Management Act, which authorized the withdrawal of public lands containing water holds needed for watering stock during their movement to seasonal ranges or shipping points, to the extent those reservations were made prior to 1976. And the water in mineral hot springs with medicinal or curative properties located on vacant, unappropriated, and unreserved public lands fall under the jurisdiction of federal reserved water rights. The BLM is authorized, by federal law, to lease these springs for public purposes.1

Sections 3(1)and 3(6) are in conflict with clear federal powers

Section 3(1) attempts to prohibit federal ownership of land in Nevada, with exceptions intended to cover all clearly permissible situations in which the federal government may appropriate land in the state. But its effort to circumscribe federal rights falls short, and thus this subsection creates potential constitutional infirmities. As just one example, Section 3(1)(a) sets up a per se rule that there can be no takings, no exercise of eminent domain, without compensation. But the history of takings jurisprudence establishes that whether there is a compensable taking under the Fifth Amendment is a question of fact and law to be determined on a case-by-case basis, not as a matter of state legislative declaration. That possible conflict could gut the entire subsection, should the right circumstance arise.

1 The Legislative Counsels recitation of one particular power of the federal government to appropriate state lands, which the drafters of AB 408 seem to think they have considered, does not change the multiple other federal interests that the law would violate.


Section 3(6) goes even further, and if passed would prevent the enforcement of federal laws outside of federally-owned lands. In other words, if a federal crime was committed on private land, the federal law enforcement agencies would have no authority, based on this subsection, to arrest violators. That attempt to eliminate federal police power and law enforcement authority cannot possibly pass constitutional muster.

Section 408 is at odds with Nevada law and policy

In addition to Section 408s clash with federal law, as a matter of state law, a prior appropriation/seniority approach is partially applied to the use of water in the state, and Section 408 would be in direct contraposition to that policy.

It is firm Nevada law that [t]he water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public. N.R.S. 533.025. And Nevada law requires that water usage in the state be appropriated, used and regulated only for beneficial use. Wildlife watering is included within N.R.S. 533.030(2) as a beneficial use, and Nevada recognizes the value of wildlife, N.R.S. 501.100(2) and the importance of providing wildlife with water, N.R.S. 501.181(3)(c). Thus, under state law, wildlife purposes (including water supplies for wildlife) are designated beneficial uses of water, and all wildlife, whether managed by federal agencies or state agencies, fall within the definition of wildlife used in all state laws that define the term. It has always been a matter of public interest that the wildlife of the State be protected for all, and not sacrificed to private interests seeking to override that interest for private gain. But Section 408 would be in direct violation with longstanding Nevada policy that in some circumstances preserves water rights for wildlife and could have a catastrophic impact on many species who have inhabited the state for nearly two centuries, and who may be threatened with great harm if their water supply is limited.

Therefore, as a matter of longstanding Nevada rule, federal priority over water rights for federally-managed wildlife and other federally reserved parks and lands is a beneficial use of water one that AB 408 seeks to eliminate without justification.

Additionally, a prior appropriation/seniority approach is partially applied to the use of water in the state. What this means, as the legislature and the courts recognize, is that wildlife (e.g., the wild horses) access to water must be considered and respected by virtue of their long-term use of the waterways and their part in providing a beneficial use to the environmental and ecological natural balance, as well as to a public interested in maintaining and viewing them in


their natural states. It is Nevada law that [t]he water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public. N.R.S. 533.025. It has always been a matter of public interest that the wildlife of the State be protected for all, and not sacrificed to private interests seeking to override that interest for private gain.

In conclusion, the proposed law would be in direct conflict with federal and state law and policy, as well as the controlling dictates of the federal Constitutions Supremacy Clause. It would be preempted by federal law and create irreconcilable conflicts with current Nevada laws. If AB 408 is adopted, it will undoubtedly lead to protracted litigation, whether from the federal agencies or interested parties, or both. We urge you to consider the consequences of a law that will engender national opposition from the general public and federal officials, placing the state in the unenviable position of spending its revenues to defend a law that threatens the viability of habitat and multiple species throughout the state.

Very truly yours,

Bruce A. Wagman

BAW:lfl

cc: Nevada Senate Nevada Assembly

40160-0000 SF\321413088.1

AB 408 Statutory DescriptionAB 408, as currently proposed, will amend Nevada Revised Statutes (N.R.S.) Chapter 321 by adding a series of provisions that attempt to fundamentally alter federal law with respect to the federal governments rights to land, come into conflict with th...AB 408 purports to be a law addressing the use of public lands in the state, and Section 2 of the bill exempts certain lands held by the federal government, but it does not consider numerous possibilities for other appropriations by the United State...Section 3(1) prohibits federal ownership of land in Nevada if the federal government does not obtain ownership (a) after providing consideration; (b) pursuant to N.R.S. 328.065 through 328.135; (c) due to use of the land pursuant to the federal con...Section 3(2) of AB 408 evinces an illegal and unconstitutional intent to cut the federal government off from any rights to use land or water, . . . prohibit or restrict the use of or enter into any contract relating to land or water within the border...Section 3(6) represents a gross overstatement of state powers, and would purportedly prohibit the federal government from enforcing any federal law or regulation in this State except on land acquired pursuant to [Section 3(1)].This unusual and overreaching attempt ignores conflicting federal statutes and more than a century of established decisions. The bill, if enacted, would clearly be preempted by federal law, as explained below. That is, the statutory language certain...Reservations of water rights may exist pursuant to federal law under the Federal Land Policy and Management Act, which authorized the withdrawal of public lands containing water holds needed for watering stock during their movement to seasonal ranges ...Section 3(1) attempts to prohibit federal ownership of land in Nevada, with exceptions intended to cover all clearly permissible situations in which the federal government may appropriate land in the state. But its effort to circumscribe federal righ...Section 3(6) goes even further, and if passed would prevent the enforcement of federal laws outside of federally-owned lands. In other words, if a federal crime was committed on private land, the federal law enforcement agencies would have no authori...In addition to Section 408s clash with federal law, as a matter of state law, a prior appropriation/seniority approach is partially applied to the use of water in the state, and Section 408 would be in direct contraposition to that policy.It is firm Nevada law that [t]he water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public. N.R.S. 533.025. And Nevada law requires that water usage in the s...Additionally, a prior appropriation/seniority approach is partially applied to the use of water in the state. What this means, as the legislature and the courts recognize, is that wildlife (e.g., the wild horses) access to water must be considered an...In conclusion, the proposed law would be in direct conflict with federal and state law and policy, as well as the controlling dictates of the federal Constitutions Supremacy Clause. It would be preempted by federal law and create irreconcilable conf...

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AB 408 Letter Nevada