Assembly Committee on Natural Resources, Agriculture, and Mining

MINUTES OF THE MEETING OF THE ASSEMBLY COMMITTEE ON NATURAL RESOURCES, AGRICULTURE, AND MINING Seventy-Ninth Session March 30, 2017 The Committee on Natural Resources, Agriculture, and Mining was called to order by Chair Heidi Swank at 1:47 p.m. on Thursday, March 30, 2017, in Room 3138 of the Legislative Building, 401 South Carson Street, Carson City, Nevada. The meeting was videoconferenced to Room 4406 of the Grant Sawyer State Office Building, 555 East Washington Avenue, Las Vegas, Nevada, and to Room 118, Greenhaw Technical Arts Building, Great Basin College, 1500 College Parkway, Elko, Nevada. Copies of the minutes, including the Agenda (Exhibit A), the Attendance Roster (Exhibit B), and other substantive exhibits, are available and on file in the Research Library of the Legislative Counsel Bureau and on the Nevada Legislature's website at www.leg.state.nv.us/App/NELIS/REL/79th2017. COMMITTEE MEMBERS PRESENT: Assemblywoman Heidi Swank, Chair Assemblywoman Lesley E. Cohen, Vice Chair Assemblyman Chris Brooks Assemblywoman Maggie Carlton Assemblywoman Sandra Jauregui Assemblywoman Lisa Krasner Assemblywoman Robin L. Titus Assemblyman Justin Watkins Assemblyman Jim Wheeler Assemblyman Steve Yeager COMMITTEE MEMBERS ABSENT: Assemblyman John Ellison (excused) GUEST LEGISLATORS PRESENT: None Minutes ID: 673 *CM673* Assembly Committee on Natural Resources, Agriculture, and Mining March 30, 2017 Page 2 STAFF MEMBERS PRESENT: Susan E. Scholley, Committee Policy Analyst Randy Stephenson, Committee Counsel Nancy Davis, Committee Secretary Cheryl Williams, Committee Assistant OTHERS PRESENT: Kyle Davis, representing Nevada Conservation League Karen Boeger, representing Backcountry Hunters and Anglers Andy MacKay, Director, Nevada Bighorns Unlimited Larry Johnson, President, Coalition for Nevada's Wildlife, Inc. Howard Watts, III, Private Citizen, Las Vegas, Nevada Doug Busselman, Executive Vice President, Nevada Farm Bureau Federation Kit Carson, representing Union Pacific Railroad Steve K. Walker, representing Eureka County Dylan Shaver, representing Nevada Mining Association Jesse Wadhams, representing Newmont Mining Corporation Jeremy Drew, Commissioner, Nevada Board of Wildlife Commissioners, Department of Wildlife Chaunsey Chau-Duong, representing Southern Nevada Water Authority; and Las Vegas Valley Water District Walt Gardner, Private Citizen, Elko, Nevada Tom Clark, representing Nevada Wildlife Alliance Donald A. Molde, Private Citizen, Reno, Nevada Dan Carrick, Private Citizen, Reno, Nevada Patrick Donnelly, Nevada Wildlife Advocate, Center for Biological Diversity Stephanie Myers, Private Citizen, Las Vegas, Nevada Karen Layne, Private Citizen, Las Vegas, Nevada Mike Reese, President, Southern Nevada Coalition for Wildlife Riley Manzonie, Private Citizen, Elko, Nevada Sam Sanders, Private Citizen, Elko, Nevada Kelly Strain, President, Nevada Houndsmen Association Dave Gowan, Private Citizen, Elko, Nevada Rich Bandos, Private Citizen, Elko, Nevada Milena Parker, Private Citizen, Elko, Nevada Carolyn Stark, Private Citizen, Incline Village, Nevada Elaine Carrick, Private Citizen, Reno, Nevada Lloyd Peake, Private Citizen, Reno, Nevada Margaret Martini, Private Citizen, Incline Village, Nevada Michael Robbins, Private Citizen, Carson City, Nevada Sean Shea, Private Citizen, Reno, Nevada Jonathan Lesperance, Private Citizen, Reno, Nevada Assembly Committee on Natural Resources, Agriculture, and Mining March 30, 2017 Page 3 Joel Blakeslee, representing Coalition for Nevada's Wildlife; Nevada Trappers Association; and Southern Nevada Coalition for Wildlife Darrell Pursel, Private Citizen, Yerington, Nevada Chair Swank: [Roll was called and standard rules of the Committee were reviewed.] I will open the hearing on Assembly Bill 386. Assembly Bill 386: Revises provisions governing access to public lands. (BDR 26-1159) Assemblyman Justin Watkins, Assembly District No. 35: I am pleased to present Assembly Bill 386 for your consideration. The way I would prefer to handle this hearing is, I am going to give a little introduction of exactly what we are dealing with, what the issue is with public corner crossing on public lands. Then I will give a little bit of a theoretical example of why I think there is a vacuum in the property laws that address this and similar situations. I will then turn the presentation over to Kyle Davis to give some real-world examples of where this vacuum in property rights has occurred and why we seek clarity for the future, rather than giving some of my anecdotal experience. For those who are not familiar with the term "checkerboard lands," I would like to begin by explaining what those are and how they occurred. In the 1880s, the federal government offered checkerboard land grants to railroad companies, consisting of alternate sections for 20 miles on each side of the railroad right-of-way [page 2, (Exhibit C)]. Basically, 20 miles above and below Interstate 80 are all checkerboard lands of both public and private land. In the 1800s, Congress thought the railroads could sell these properties to raise capital, and later the federal government would sell its land when the value went up. The plan worked well in the eastern United States, but as we moved further west, where there is more expansive land, the federal government did not have the ability to sell off their portion, so we continue to have public lands checkerboarded with private lands. The problem, as it exists today, is that campers, hunters, hikers, and outdoorsmen in the western United States may not have access to tens of thousands, even hundreds of thousands of acres. When you look at other states that are in a similar situation, from Montana west, there are millions of acres of public land that are inaccessible because of this checkerboard fashion. I will describe to you why they are inaccessible. Page 3 (Exhibit C) shows a closer view of the checkerboard to the north and south of Interstate 80. Assembly Bill 386 is designed to facilitate access to public lands in this unique checkerboard situation. I would like to go through what I acknowledge is somewhat of a theoretical discussion, to understand how difficult this issue is to describe. Let us assume that we have a checkerboard of land ownership with only private owners as shown on page 4 (Exhibit C), landowner blue and landowner red. Now let us assume that landowner blue puts a fence across the diagonal of the checkerboard, as shown on page 5. I would ask, did landowner blue violate the rights of landowner red? Most of us would feel the answer is yes. I would say, real property law is unclear and murky at best. There is something that is called an Assembly Committee on Natural Resources, Agriculture, and Mining March 30, 2017 Page 4 easement of necessity. That is to say that there is an easement between adjoining land spaces of private ownership so long as it is necessary for access. In my example on page 5, if the top left corner were inaccessible by other reasonable means, then landowner red would have an easement by necessity across the diagonal. Let us move to another example on page 6. Now landowner blue did not build a fence diagonally across that geographic point, but built two fences, encompassing his two respective areas of land. This is a very real world example of what happens out there along these checkerboard patterns, typically because the bottom left box and the top right box are two different owners. For ease of discussion, let us assume it is one owner. The obstruction that is created for landowner red in this example is no different from my prior example. There is no way to traverse across that diagonal point when the two fences abut at the corner. What I would ask you is, do we, as a public body, in creating public policy for our people, want that analysis to be any different for public land? If red is public land and we are those public landowners, do we want to allow the restriction of access across the corner? I would submit to you that we do not. If we allow this situation or the situation in which there is a diagonal fence, we allow a private landowner to coopt public lands, doubling their acreage with no compensation going to the public. Just for purposes of scale, these checkerboards, typically, were done in 640-acre lots. Each of these blocks on page 6 would be 640 acres. Now I would like to take a minute to walk you through the bill. Page 7 (Exhibit C) is an example of what the bill does not do. This bill does not allow landowner blue to cross over the corner of landowner red's lot. In fact, once I walk through the bill, you will find that nothing in the bill allows anyone to step foot on the private land that is adjacent to the corner. It only allows you to cross a geographical point. Let us now go to the bill language and discuss how that reads. Section 1 of the bill grants permission for a person to cross from one publicly owned parcel to another. Using page 4 again, let us assume that red is now a public owner. He can go from the lower right to the top left, across the geographical point at the intersection. The geographical point, by definition, takes up no space. There is not a foot, not an inch, it is zero space. It would seem commonsensical to say that if I step one foot in the bottom right corner and one foot in the top left corner, that I have not committed trespass. That makes sense to me. There is a Supreme Court case, Leo Sheep Company, et al., v. United States, et al., [440 U.S. 668 (1979) (99 S.Ct. 1403, 59 L.Ed.2d 677)] that casts doubt. It does not say that is trespass, but it casts doubt as to whether or not you can traverse corner property at the geographical point without actually crossing private property. In that case, they were determining whether the public could have an easement by necessity.

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