Editorial Opinion: The Dangerous Folly of the Nevada Board of Wildlife Commissioners|
December 6, 2010
At the December 3-4, 2010 meeting of the Nevada Board of Wildlife Commissioners the Gibbons Administration took another run at Nevada's wild horses. The way in which this matter was handled sparked concerns that the Commission was engaging in a potentially risky battle and produced formal allegations that the Commission violated Nevada's Open Meeting Law in the process. Neither the Commission's actions or violations are surprising under this administration.
This controversy started in the Commission's "Feral Horse Committee." The Committee drafted two letters through processes that violated various provisions of Nevada's Open Meeting Law. (The allegations of violations are discussed following the content of the letters.)
Draft Letter to the State Engineer.
The first letter presented was a draft that the Feral Horse Committee produced and recommended that the Commission send to the State Engineer. The letter advanced a convoluted argument that the Bureau of Land Management (BLM) cannot utilize waters found on Federal lands to sustain wild free-roaming horses and burros, animals that in 1971 were declared by Congress to fall under Federal authority.
The draft letter was outright amateurish. The Feral Horse Committee, touted by the Commission Chairman Scott Raine as being comprised of "five of the foremost experts on the issue of feral horses in the State of Nevada," failed to even correctly convey the animals' proper designation, calling Wild Free-roaming Horses and Burros "Free and Wild Roaming Horses and Burros" in the document the Committee produced.
The Committee also apparently didn't understand Chapter 569 of the Nevada Revised Statutes where the definition of "feral livestock" under the law specifically excludes horses and burros subject to the Wild Free-roaming Horses and Burros Act.
Citing from 569.008, "The term does not include horses or burros that are subject to the jurisdiction of the Federal Government pursuant to the Wild Free-roaming Horses and Burros Act, 16 U.S.C. §§ 1331 to 1340, inclusive, and any regulations adopted pursuant thereto, or any other federal statute or regulation."
Since wild free-roaming horses and burros are clearly excluded from definition as feral livestock, and since they fall within the jurisdiction of the Federal government, they are by definition "livestock" as described under NRS 569.0085
A legal showdown over water could backfire and not only impact the state's wildlife but also adversely impact the state's public lands ranchers. Apparently the Commission hasn't considered these possible consequences.
With the passage of the Wild Free-roaming Horses and Burros Act came an implicit reservation of Federal Reserved Water Rights to the "minimal sufficient water necessary" to maintain horses and burros that were designated by Congress for protection under the jurisdiction of the Secretaries of Interior and Agriculture. There are numerous court decisions that suggest that if the matter was pushed, Federal laws would have supremacy over any state laws and policies.
The authority of states is limited. As far back as 1842 the courts ruled, "The governmental trust responsibility for wildlife is lodged initially in the states, but only 'in so far as its exercise may not be incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution.'" Unless the Wild Free-roaming Horses and Burros Act is found unconstitutional, which it isn't, the Federal Government has authority over its horses and any "state exercise" that is incompatible with that authority is in of itself invalid.
States don't actually "own" wildlife. In 1948 the courts ruled that states don't actually own wildlife. "Neither state nor federal authority over wildlife is premised upon any technical 'ownership' of wildlife by the government. Although older decisions sometimes referred to government 'ownership' of wildlife, that language has been deemed 'a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.'" In reality the Federal government does at times claim supreme authority over wildlife, such as with endangered species.
Federal use of water does not constitute a 5th Amendment violation. Regarding the Committee's arguments that BLM's providing water to horses is in fact "taking" water that might be available to other users and would be a violation of the 5th Amendment, the courts cited in 1978, "Suffice it to say that government regulation--by definition--involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase. 'Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.'"
The Supreme Court recognized the importance of the Wild Free-roaming Horses and Burros Act. In 1980 the courts wrote, "the Supreme Court recognized the important governmental interest in preserving wild horses and burros in their natural habitat, citing congressional findings that their preservation would 'contribute to the diversity of life within the Nation and enrich the lives of the American people.' Id. at 535, 96 S.Ct. at 2289 (citing 16 U.S.C. Sec. 1331 (1970 ed., Supp. IV)). The provisions of the Wild Free-roaming Horses and Burros Act advance this important governmental interest."
In summation, the rights of the Federal government with respect to protected wild free-roaming horses and burros have been vested and recognized.
Federal Reserved Water Rights
When the Federal government reserves lands for specific purposes, it implicitly reserves sufficient water to satisfy the purposes so designated. This federal reserved water rights doctrine, known as the Winters Doctrine, was established by the U.S. Supreme Court in 1908.
In 1952 Congress passed the McCarren Amendment. This law compelled Federal agencies to participate in the respective states' water adjudication process, thereby ensuring that the development of water resources by Federal agencies would not cause unreasonable harm to other "senior" holders of water rights in the same aquifer or basin. However the delegation to the states for such adjudication did not include any intent to allow states to prevent Federal agencies from making use of water on Federal properties to the extent necessary to carry out the agencies' purposes.
"Today, federal reserved water rights can be asserted on most lands managed by the federal government. Reserved rights are, for the most part, immune from state water laws and therefore, are not subject to diversion and beneficial use requirements and cannot be lost by non-use. The federal government, however, is required to submit all reserved water rights claims to the state’s adjudication process, and are limited by the "primary purpose" and "minimal needs" requirements." (Excerpted from
Federal Reserved Water Rights, US Bureau of Land Management.)
Any time an entity (in this case the Nevada Board of Wildlife Commissioners) pursues an agenda without full comprehension of the law, such actions bring with them the possibility of unintended consequences. In all matters authorized by the Constitution, the Federal government has supremacy over state and local governments, laws and policies. It could come to pass that benefits enjoyed by state water users resulting from cooperation between Federal agencies, the state, local governments and private users could be more narrowly adjudicated by the courts. When a side potentially has more to lose than it might possibly gain, negotiation is a more sensible path than confrontation.
Note: This commentary reflects the views of the writers who are solely responsible for its content.